Opposition Brief — Weichert v. Roberts

Supreme Court, U.S.

FILED

91-305 AUG 22 1991

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

——- 4

ROBERT M. WEICHERT,

Petitioner,

ELAINE W. ROBERTS,

Respondent.

—E a ——

Petition For Writ Of Certiorari To The

Fourth District Court Of Appeal, State Of Florida

om . ¢--

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

— « ————————E

Nowuin & Now, P.A.

50 S.E. Fourth Avenue

Delray Beach, FL 33483

(407) 276-9754

and

LARRY KLEIN, OF

KLEIN & WALSH, P.A.

Suite 503 — Flagler Center

501 South Flagler Drive

West Palm Beach, FL 33401

(407) 659-5455

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

PREFACE

The parties will be referred to as the petitioner and

respondent or by their proper names. The following sym-

bols will be used:

(A ) - Petitioner’s appendix

(R ) - Respondent’s appendix.

¢

STATEMENT OF THE CASE

We cannot agree with petitioner’s statement of the

case because it includes facts which are neither true nor

in the record.

Decedent’s last will was executed in February of 1982

(A-M-8). It stated that she was a resident of Palm Beach

County, Florida. Under that will, petitioner, Robert M.

Weichert, was named a co-personal representative with

another person. On December 15, 1988, decedent exe-

cuted a codicil to her will in which she deleted that

provision of the 1982 will making Robert M. Weichert co-

personal representative, and appointed all three of her

children, Harold R. Weichert, Robert M. Weichert, and

Elaine W. Roberts, as co-personal representatives. That

codicil stated that the decedent was a resident of Osceola

County, Florida, and was executed in Delray Beach, Flor-

ida (A-M-18).

Elaine W. Roberts, respondent, filed a petition for

administration stating that the decedent’s last known

address was in Delray Beach, and that she died in the

Manor Care Nursing Home, Boynton Beach, Florida (A-

M-1). It further stated that at the time of her death

decedent was domiciled in Palm Beach County, Florida.

Her petition also stated that she was qualified to serve as

personal representative, that Harold R. Weichert had

waived his right to serve as co-personal representative

and joined in her petition, and that Robert M. Weichert

was not qualified because of Section 733.303, Florida Stat-

utes (1990). That statute provides that a convicted felon

cannot serve as a personal representative. Petitioner,

Robert M. Weichert, is a convicted felon. He was con-

victed of bankruptcy fraud and conspiracy to commit

bankruptcy fraud, and was sentenced to three years

imprisonment. Prior to committing those offenses he was

disbarred as a lawyer in the State of New York for other

misconduct (R 1).

An evidentiary hearing, after notice, occurred on the

petition for administration on September 6, 1990, and the

lower court entered an order admitting the will to pro-

bate and appointing Elaine Roberts as personal represen-

tative on that date. In that order the court found that

Robert M. Weichert was not qualified to serve as personal

representative (A-L-1). The testimony at that hearing was

not transcribed.

SUMMARY OF ARGUMENT

Section 733.303(1)(a), Florida Statutes, which pro-

hibits a convicted felon from serving as a personal repre-

sentative, is not unconstitutional. In addition petitioner’s

argument is moot because this estate has now been fully

administered.

ARGUMENT

Section 733.303(1)(a), Florida Statutes, provides:

(1) A person is not qualified to act as a per-

sonal representative if:

(a) He has been convicted of a felony.

Although petitioner’s sole basis for seeking review in this

court is that the above statute is unconstitutional, peti-

tioner did not raise the constitutionality of the statute in

the trial court. Petitioner’s argument in the trial court

was that the decedent died a resident of New York.

Apparently petitioner was attempting to evade the prohi-

bition against convicted felons serving as personal repre-

sentatives in Florida by arguing that the decedent was a

resident of New York when she died.

Petitioner did argue in the Florida Appellate Court

that the statute was unconstitutional, however petitioner

cited no authority for that argument, and he cites no

authority in his petition for certiorari. There are

numerous obvious reasons why a convicted felon should

not be able to serve as a personal representative, since a

personal representative is entrusted with the assets of a

decedent's estate, and is in a fiduciary duty to the bene-

_ficiaries and creditors. The statute is not unconstitutional.

The constitutionality of the statute prohibiting peti-

tioner from serving as personal representative is also

moot in this case. This will was admitted to probate on

September 6, 1990 (A-C-3), and at this point in time

administration of this estate is complete. But for the filing

of this petition for certiorari the administration of this

estate would be concluded.

*

CONCLUSION

Section 733.303(1)(a), Florida Statutes, prohibiting

convicted felons from serving as personal representa-

tives, is not unconstitutional. The petition for certiorari

should be denied.

Respectfully submitted

Now.in & Nowtun, P.A.

50 S.E. Fourth Avenue

Delray Beach, FL 33483

(407) 276-9754

and

LARRY KLEIN, OF

Kvein & Wa sn, P.A.

Suite 503 — Flagler Center

501 South Flagler Drive

West Palm Beach, FL 33401

(407) 659-5455

App. 1

SEAL U.S. Department of Justice

United States Attorney

Northern District of New York

August 3, 1990 900 Federal Building 315/423-5165

100 South Clinton Street FTS/950-5165

Syracuse, New York 13260

Ms. Elaine W. Roberts

312 N. Swinton Ave.

Delray Beach, FL 33444

RE: United States v. Robert M. Weichert

Criminal Action No. 84-CR-139

Dear Ms. Roberts:

At the request of your brother, Dr. Harold Weichert, I

enclose herewith a copy of the Judgment and Committ-

ment [sic] Order in the above referenced criminal action.

As appears from the judgment and committment

order, defendant Robert M. Weichert was convicted under

several counts of bankruptcy fraud and conspiracy to

commit bankruptcy fraud and was sentenced to a total of

three years imprisonment, five years probation, fines and

restitution. Originally Mr. Weichert was sentenced to pay

$200,000 in restitution but that figure was subsequently

reduced to approximately $156,000.

Several years before the commission of the offenses

which resulted in this conviction, Mr. Weichert was dis-

barred as an attorney in the state of New York for various

acts of malfeasance in connection with his handling of his

client’s assets.

App. 2

If this office can be of further assistance, please

advise.

Yours very truly,

FREDERICK J. SCULLIN, JR.

United States Attorney

/s/ William H. Pease

By: William H. Pease

Assistant U.S. Attorney

WHP/mag

Enc.