text:
    Stephen Roger BUDMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1210.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.

      Bierman, Sonnett, Beiley & Shohat and Neal R. Sonnett, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and KEHOE, JJ.

       BARKDULL, X, participated in the decision in this case but did not hear oral argument.

   KEHOE, Judge.

Appellant, defendant below, was arrested, along with several other persons, on June 28, 1974, by members of the Dade County Public Safety Department during an undercover cocaine purchase. On November 13, 1974, an information was filed against appellant, Allen Braverman, Sandy Acurse, and Kim Kestner. The information charged appellant with two counts of possession of cocaine, the sale of cocaine, the conspiracy to sell cocaine, an assault with intent to murder, and the unlawful possession of a short barreled shotgun. Subsequently, after a jury trial which was held on April 18-21, 1977, appellant was found guilty of one count of possession of cocaine, the sale of cocaine, the conspiracy to sell cocaine, an aggravated assault, and the unlawful possession of a short barreled shotgun. Thereafter, a judgment of conviction was entered and appellant was sentenced to five years imprisonment on each of the counts, except the conspiracy count, the sentences to run concurrently. On the conspiracy count, he was sentenced to fifteen years imprisonment, this sentence to run consecutively to the sentence imposed on the other counts. From the judgment of conviction and sentences, appellant brings this appeal. For the reasons set forth below, we affirm.

Appellant raises the following three points on appeal: (1) that the trial court erred in denying his motion to dismiss because the intentional destruction by the State of potentially material evidence (certain tape recordings) deprived him of due process of law; (2) that the trial court erred in denying his motions for judgment of acquittal, in regard to the charges of the conspiracy to sell cocaine and the sale and possession of cocaine, because as a matter of law the evidence did not establish his guilt beyond a reasonable doubt; and (3) that the trial court erred in denying his motion for a mistrial because the prosecutor, in his closing argument, commented upon appellant’s failure to testify.

Prior to the trial of this cause, appellant filed a motion to dismiss on the ground that the State had failed to produce, pursuant to his demand for production, certain tape recordings which were made during the undercover cocaine transaction which led to appellant’s arrest. In this pretrial motion, which was also renewed during the trial, appellant alleged that the tape recordings had been intentionally destroyed, thereby, making production impossible. Appellant contended that this failure to produce Brady material denied him his right to due process of law. The motion was denied by the trial court.

The record shows that throughout the undercover cocaine transaction, which took place inside an apartment, one of the two officers who were making the purchase was outfitted with an electronic transmitter which was being monitored and recorded by another officer located in a van parked on a nearby street. However, at the time of appellant’s arrest, the officer in the van had stopped monitoring and recording the transmission. While the transmission was being monitored, the officer could hear portions of the conversations taking place inside the apartment, but, due to the weather and other circumstances, other portions were inaudible. Afterwards, the officer who made the tape recordings listened to them, assessed their audibility, and, upon determining that no audible conversations were recorded on them, without authorization disposed of the tapes by throwing them into a “garbage can.” Other than this officer, no one else listened to the tapes.

Appellant’s basic contention in regard to his first point on appeal is that appellee suppressed evidence in violation of Brady.

Prior to our analysis of Brady and its progeny, in the light of the particular facts of the instant case, we feel constrained to make the following commentary. The right at stake in cases, such as the one presently before us, is a defendant’s discovery of evidence gathered by the government, evidence whose disclosure to defense counsel could make a trial more a “quest for truth” than a “sporting event.” Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash.U.L.Q. 279. The safeguard of a fair trial is an extremely important one, but it may be undercut at the pretrial period by bureaucratic procedures or discretionary decisions of government investigative agents who make no effort to preserve discoverable material. For example, as in the instant case, when defense motions for discovery were made, it turned out that the discoverable matter, i. e., the tape recordings, had been intentionally destroyed by an investigative officer, albeit the record does not show that it was done in bad faith. In its broad sense, this presents the question of whether intentional non-preservation by such officers, as opposed to bad faith destruction or prosecuto-rial withholding, of discoverable evidence amounts to an illegal suppression. Some of the problems in these disclosure cases were aptly stated by Judge J. Skelly Wright in United States v. Bryant, 142 U.S.App.D.C. 132, at 138, 439 F.2d 642, at 648 (1971), as follows:

“But, in these cases we are entirely in the dark. We have no idea what may have been on the tape. For all we know, the tape would have corroborated Agent Pope’s story perfectly; or, for all we know, it might have completely undercut the Government’s case. There is not simply ‘substantial room for doubt,’ but room for nothing except doubt as to the effect of disclosure. What we do know is that the conversations recorded on the tape were absolutely crucial to the question of appellants’ guilt or innocence. That fact, coupled with the unavoidable possibility that the tape might have been significantly ‘favorable’ to the accused, is enough to bring these cases within the constitutional concern. If the due process requirement is directed to evidence whose non-disclosure ‘might’ have harmed the accused, its purpose clearly reaches the type of missing evidence at issue here. Were Brady and its progeny applicable only when the exact content of the non-disclosed materials was known, the disclosure duty would be an empty promise, easily circumvented by suppression of evidence by means of destruction rather than mere failure to reveal. The purpose of the duty is not simply to correct an imbalance of advantage, where the prosecution may surprise the defense at trial with new evidence; rather, it is also to make of the trial a search for truth informed by all relevant material, much of which, because of imbalance in investigative resources, will be exclusively in the hands of Government.”

As set forth in Brady, it is clear that there is a due process requirement for certain discoverable matter to be disclosed to the defense. Also, it is clear that the Supreme Court plainly proscribed governmental suppression of evidence which exculpated the defendant. Although the Supreme Court has not yet attempted to define this standard with precision, the due process requirement has been held applicable to all evidence which might lead the jury to entertain a reasonable doubt about a defendant’s guilt. See Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); and Levin v. Katzenback, 124 U.S.App.D.C. 158, 363 F.2d 287 (1966). Also, it has been held that this test is to be applied generously to the defendant when there is substantial room for doubt as to what effect disclosure might have had. See Levin v. Clark, 133 U.S.App.D.C. 6, 408 F.2d 1209 (1967). Further, in construing Brady, the Fifth Circuit Court of Appeals in Williams v. Dutton, 400 F.2d 797, at 800 (5th Cir. 1968), concluded that Brady “imposed an affirmative duty on the prosecution to provide at the appropriate time requested evidence which is materially favorable to the accused as direct or impeaching evidence.” More recently, the Supreme Court in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), clearly articulated the following three criteria for measuring when, the Brady rule has been violated:

“(a) suppression by the prosecution after a request by the defense,
(b) the evidence’s favorable character for the defense, and
(c) the materiality of the evidence” Id. 373 U.S. at 794, 92 S.Ct. at 2568, 33 L.Ed.2d at 713.

Measured against these criteria, we have concluded that, in the instant case, there has been no Brady violation. The record reflects that appellant made an appropriate request for discovery which, due to the destruction of the tape recordings, led to suppression by appellee. However, we have scrupulously reviewed the entire record and can find no showing, whatsoever, that the tapes, if produced, would have been favorable or material in any way to appellant. In fact, the trial court made the finding that the absence of the tapes was not prejudicial to appellant. Therefore, even though element (a) under the Brady rule is present in the instant case, elements (b) and (c) are totally lacking. Accordingly, we have concluded that appellant’s first point on appeal is without merit. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Wiese v. State, 357 So.2d 755 (Fla. 4th DCA, opinion filed April 18, 1978); cf. Mitchell v. State, 358 So.2d 238 (Fla. 2d DCA 1978) (finding of materiality); Ludwick v. State, 336 So.2d 701 (Fla. 4th DCA 1976) (inadequate record to demonstrate prejudice); and Hernandez v. State, 273 So.2d 130 (Fla. 1st DCA 1973) (no showing of favorability). See generally Annot., 34 A.L.R.3d 16 (1970).

Additionally, we note that a trial court’s order denying a motion to dismiss reaches this court clothed with a presumption of correctness. The burden is upon an appellant to overcome that presumption and demonstrate from the record that he was prejudiced. In the instant case, appellant has failed to carry that burden. Further, the dismissal of charges against a criminal defendant is an extreme sanction which should be utilized with great caution. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); and State v. Smith, 342 So.2d 1094 (Fla. 2d DCA 1977). See also United States v. Quiovers, 176 U.S.App.D.C. 265, 539 F.2d 744 (1976); United States v. Carpenter, 166 U.S.App.D.C. 358, 510 F.2d 738 (1975); United States v. Perry, 153 U.S.App.D.C. 89, 471 F.2d 1057 (1972); Jones v. U.S., 343 A.2d 346 (D.C.App.1975).

In light of the Supreme Court of Florida’s recent opinion in State v. Sobel, 363 So.2d 324, (Fla.1978), quashing Sobel v. State, 349 So.2d 747 (Fla. 3d DCA 1977), appellant’s major reliance on this latter case is misplaced. Also, appellant’s reliance on Farrell v. State, 317 So.2d 142 (Fla. 1st DCA 1975), is misplaced. In Farrell, the Fourth District Court of Appeal held that the unintentional destruction (by erasure) by the State of discoverable tape recordings of undercover drug transactions violated the defendants’ right to due process of law. However, this holding and the resultant reversal of the trial court’s denial of the defendants’ motion to dismiss was based upon uncontradicted facts contained in a stipulation of the parties, particularly the stipulation that the erased tapes would have been beneficial to the defendants and their destruction resulted in prejudice. In the instant case, we have no such stipulation of fact and appellant has not shown that he was actually prejudiced at trial; to the contrary, the trial court found that no prejudice resulted to appellant.

We further note that this opinion should not be construed, in any manner, as sanctioning the unauthorized and unilateral destruction of any discoverable matter. It is most consistent with the purpose of the safeguard of due process that a duty of preservation attaches in some form once the State has first gathered and taken possession of any discoverable matter. Otherwise, disclosure might be avoided by destroying vital matter before a defendant learns of its existence. We feel strongly that the duty of disclosure is operative as a duty of preservation; only then, may meaningful discovery be possible later.

Appellant’s second point on appeal, i. e., the trial court erred in denying his motions for judgment of acquittal in regard to the charges of the conspiracy to sell cocaine and the sale and possession of cocaine, is without merit. See United States v. Gomez, 529 F.2d 412 (5th Cir. 1976); United States v. Marionneaux, 514 F.2d 1244 (5th Cir. 1975); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969); Nelson v. United States, 415 F.2d 483 (5th Cir. 1969); Codie v. State, 313 So.2d 754 (Fla.1975); Resnick v. State, 287 So.2d 24 (Fla.1973); Adirim v. State, 350 So.2d 1082 (Fla. 3d DCA 1977); Everett v. State, 339 So.2d 704 (Fla. 3d DCA 1976); and Scaldeferri v. State, 294 So.2d 407 (Fla. 3d DCA 1974).

Further, we have concluded that appellant’s third point on appeal, i. e., the trial court erred in denying his motion for a mistrial because the prosecutor, in his closing argument, commented on appellant’s failure to take the stand, is meritless. In the instant case, the record clearly shows that the contentious comment made by the prosecutor was a mere reference to the evidence as being uncontradicted, not a reference to the failure of appellant to testify. In our opinion, the comment was within permissible bounds and, as such, it was not error for the trial court to deny appellant’s motion for a mistrial based on the comment. See Parks v. Wainwright, 429 F.2d 1240 (5th Cir. 1970); State v. Jones, 204 So.2d 515 (Fla.1967); Clinton v. State, 56 Fla. 57, 47 So. 389 (1908); Gray v. State, 42 Fla. 174, 28 So. 53 (1900); White v. State, 348 So.2d 368 (Fla. 3d DCA 1977); Mabery v. State, 303 So.2d 369 (Fla. 3d DCA 1974); Parks v. State, 206 So.2d 431 (Fla. 3d DCA 1968); and Woodside v. State, 206 So.2d 426 (Fla. 3d DCA 1968).

Affirmed.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) [hereinafter cited as Brady],


source: Caselaw Access Project

author: KEHOE, Judge.

license: Public Domain

text:
    Jerome BAIN, Appellant, v. ROMA FINANCIAL, INC., Biltmore Motors Corp., Marie Bain Halfon, Esther Bain Fusso and Kay Bain Weiner, Appellees.
    No. 77-1690.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Stone, Sostehin & Gonzalez and Gisela Cardonne, Miami, for appellant.
    Arango & Galarraga and Jorge Sanchez-Galarraga, Coral Gables, for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.

       Chief Judge Haverfield participated in the decision in this case but did not hear oral argument.

   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from an amended final judgment and order taxing costs. We affirm.

Appellant brought an action against ap-pellee Roma Financial, Inc., for having entered into a lease with his sisters, without his permission, for a parcel of property of which he was a co-owner as tenant in common. Thereafter, he filed an amended complaint and joined his sisters as co-defendants. Appellant sought, among other things to have the lease declared null and void. Subsequently, the matter proceeded to a jury trial, and, pursuant to appellees’ motion for a directed verdict, the trial court ruled that as a matter of law the lease was not void as a matter of law by the failure to join appellant in the lease. The jury, as to the other questions presented, returned a verdict in appellant’s favor, but found no damages due. Thereafter, the trial court awarded an order of costs in favor of appel-lee Roma Financial, Inc., and entered an amended final judgment holding, among other things, that the lease was not void as a matter of law because of the failure of appellant to join in its execution.

Appellant phrases one of his points on appeal as follows: “Whether defendant’s [appellees] summary judgment motion should have been denied where the non-consenting plaintiff [appellant], co-owner, has a right to eject the lessees.”

Both appellant and appellees state that there are no Florida cases directly in line with the point on appeal. However, we have found persuasive authorities from other jurisdictions cited in an Annotation, 49 A.L.R.2d 797 (1956), that support the trial court’s finding that the lease agreement was not void as a matter of law for the failure to join appellant in the lease. Accordingly, we hold that this point is without merit. We note that appellant has neither sought ejectment of the lessees nor attempted to gain possession of the property.

We have carefully reviewed appellant’s other two points on appeal and find them to be without merit. See, e. g., Huffman v. Peek, 102 So.2d 641 (Fla.2d DCA 1958); and § 57.041 Fla.Stats. (1977).

Affirmed.


author: PER CURIAM. NATHAN, Judge.

text:
    Edwin B. GAINSBORG, Appellant, v. Gloria Millman GAINSBORG, Appellee.
    No. 77-2030.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Nathaniel L. Barone, Jr., Miami, for appellant.
    Grover, Ciment, Weinstein & Stauber, Miami Beach, and Eric L. Ansel, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.

       Chief Judge Haverfield participated in the decision in this case.

   PER CURIAM.

The following opinion and judgment by NATHAN, J., prepared prior to his death on August 10, 1978, is hereby adopted by a panel of the Court as the opinion and judgment of this court.

NATHAN, Judge.

This is an appeal by the husband from the portion of a post-judgment order on contempt motions, ordering the husband to pay, within fifteen days, the arrearages on his share of mortgage payments on the marital home.

By final judgment of dissolution of the marriage of Gloria Millman Gainsborg and Edwin B. Gainsborg, the trial court ordered that the marital home

“ . . . shall be held by the parties as tenants in common until a sale can be effected, at which time the proceeds of the home shall be divided equally between the parties. The mortgage payments on the marital abode from this date and before the sale shall be divided equally between the parties. Each will have an equal responsibility for the mortgage payments. Both parties have agreed that the marital abode should be sold, and the parties shall proceed expediently to effect this sale.”

Subsequent to entry of the final judgment, the wife filed two motions for contempt for the husband’s failure to pay his half of the mortgage payments. The husband filed a motion for contempt for the wife’s frustration of an expedient sale of the marital home. At a hearing on the motions for contempt, the husband alleged that the wife, who is living in the home with her two adult sons and a gentleman friend, has actively prevented a sale by turning away a prospective purchaser, and by listing the home at an excessive price. The trial judge determined that because the husband has an interest in the home, he must pay the arrears and continue to make his share of the mortgage payments until the sale of the home, as provided in the final judgment.

On this appeal, the husband contends that the trial court was without jurisdiction to require the husband to contribute to the mortgage payments on the home where such payments were not part of an award of alimony or child support. The wife counters that the husband is attempting to appeal the final judgment requiring the equal division of mortgage payments between husband and wife, long after the time for taking an appeal had expired; and further, that the court did have jurisdiction to require the husband to pay half of the mortgage payments, as the property is held by the parties as tenants in common.

As a general rule, it is the obligation of each tenant in common to pay one-half of the property expenses consisting of mortgage payment insurance, taxes and necessary repairs. Waskin v. Waskin, 346 So.2d 1060, 1063 (Fla.3d DCA 1977), and cases cited therein. Therefore, we are of the opinion not only that the trial court had jurisdiction to require the husband to share equal responsibility for the mortgage payments, but also that the court was correct in its order on contempt motions, ordering the husband to pay the arrears, and to continue to make his share of the payments until the house is sold.

While nothing contained in this opinion precludes an independent action on the part of the husband seeking partition of the property, it cannot be ignored that the final judgment itself provided that both parties agreed that the home should be sold, and ordered that “ . . . the parties shall proceed expediently to effect this sale.” Neither party took an appeal from the final judgment. From the record, it appears that the wife has failed to comply with this provision of the judgment. Accordingly, while we affirm the order herein appealed, we also remand the cause to the trial court with directions to conduct further proceedings to establish whether or not the wife’s non-compliance was wilfull. It is axiomatic that the court has inherent jurisdiction to enforce its orders. If the wife’s non-compliance is found to be wilfull, she will be subject to such sanctions as the court may impose.

Affirmed and remanded with directions.


text:
    Stuart WILSON, Appellant, v. Joyce WILSON, Appellee.
    No. 77-2289.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Charles L. Neustein, Miami, for appellant.
    Gold & Fox, Coral Gables, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.

      BARKDULL, J., participated in the decision in this case but did not hear oral argument.

   KEHOE, Judge.

Appellant seeks review of a final judgment awarding attorney’s fees to ap-pellee, as a result of a modification proceeding instituted by appellee in October of 1976. The parties were divorced in 1970. The record reflects that the only evidence in regard to the amount of attorney’s fees was the testimony of appellee’s counsel. The general rule is that the self-serving nature of the testimony given by an attorney who performs services for which an attorney’s fee is sought precludes a trial court from making an award based solely on that attorney’s testimony. See, e. g., Benitez v. Benitez, 337 So.2d 408 (Fla.4th DCA 1976); and Ortiz v. Ortiz, 211 So.2d 243 (Fla.3d DCA 1968). In our opinion, this general rule is applicable in the present case; accordingly, because the final judgment entered by the trial court was not supported by competent substantial evidence, the final judgment is reversed.

Reversed.


author: PER CURIAM.

text:
    Donnie ROGERS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2375.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    McCrary, Berkowitz & Davis and Jeffrey L. Berkowitz, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.

       HAVERFIELD, C. J., participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

This appeal is from an order denying defendant’s motion to vacate pursuant to Fla.R.Crim.P. 3.850. The pro se motion was denied without an evidentiary hearing. On appeal, it is urged that defendant’s statement in his motion that his plea of nolo contendere was “forced upon him by Dade County law enforcement” was sufficient to require an evidentiary hearing. The record of the entry of the plea in 1974 clearly establishes the voluntariness of the plea absent any new facts to bring the voluntariness into question. The defendant having failed to allege any such fact, the order appealed is affirmed. See Paige v. State, 282 So.2d 192 (Fla.2d DCA 1973); Whitlow v. State, 256 So.2d 48 (Fla.2d DCA 1971); and Gibson v. State, 213 So.2d 8 (Fla.4th DCA 1968).

Affirmed.


text:
    Rose CONTE, Appellant, v. John CONTE, Appellee.
    No. 77-2382.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Eleanor Levingston Schockett, Miami, for appellant.
    Ginsberg & Goldman and Daniel L. Ginsberg, North Miami Beach, for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Fla.R.Civ.P. 1.360, Martin v. Tindell, 98 So.2d 473 (Fla.1957); Gasparino v. Murphy, 352 So.2d 933 (Fla. 2d DCA 1977) and Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    Herbert TUCKER, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 77-2670.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Bennett H. Brummer, Public Defender, and Charles M. Fahlbusch, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.

       Judge Hubbart participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

Affirmed. See State v. Viscito, 349 So.2d 196 (Fla.3d DCA 1977); Carey v. State, 349 So.2d 820 (Fla.3d DCA 1977); Alderman v. State, 281 So.2d 231 (Fla.1st DCA 1973); State v. Jones, 204 So.2d 515 (Fla. 1967); Stanton v. State, 349 So.2d 761 (Fla.3d DCA 1977).


author: NATHAN, Judge.

text:
    Daniel J. KELYMAN, Appellant, v. Nancy Elizabeth Bloom KELYMAN, Appellee.
    No. 78-853.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Robert L. Hutchinson, Orlando, for appellant.
    Goodhart & Rosner and James F. Dough-erty, II, Miami, for appellee.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   NATHAN, Judge.

This is an interlocutory appeal by the husband from orders denying his motion to dismiss or transfer this dissolution of marriage action on the basis of improper venue. We reverse on the authority of Carroll v. Carroll, 322 So.2d 53 (Fla. 1st DCA 1975); Barr v. Barr, 343 So.2d 1326 (Fla. 3d DCA 1977); and Section 47.011, Florida Statutes (1977), with directions to transfer the action to the Circuit Court of Orange County, Florida.

Reversed and remanded with directions.


text:
    Abraham PARKER, Appellant, v. STATE of Florida, Appellee.
    No. HH-495.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1978.
    Michael J. Minerva, Public Defender; and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and A. S. Johnston, Asst. Atty. Gen., for appellee.
   ORDER ON PETITION FOR REHEARING

This Court filed a per curiam opinion in this case on October 4, 1978. Appellant thereupon filed a Petition for Rehearing. Although we yet adhere to the result of our said per curiam opinion we determine, in the light of the Petition for Rehearing, that certain language of that opinion should be eliminated. Accordingly, it is

ORDERED THAT

1. Our per curiam opinion filed October 4, 1978 is hereby withdrawn and our Revised Opinion of even date herewith is substituted in its place and stead.

2. Appellant’s Petition for Rehearing is denied.

REVISED OPINION

PER CURIAM.

An information alleged that appellant violated Section 843.01, Florida Statutes (1975) by resisting, obstructing or opposing a municipal police officer in the lawful execution of a legal duty by offering or doing violence to such officer. Appellant contends his motion for judgment of acquittal should have been granted because the evidence did not establish that the officer was engaged in the lawful execution of his legal duty since the municipal officer was outside his territorial jurisdiction at the time of the incident. We disagree.

The evidence revealed that Officer Knowles, a Pensacola city police officer, was involved in an investigation concerning the sale of stolen property within the city. In the course of his investigation, Knowles detained several individuals outside the city limits for interrogation. At that time, appellant approached the scene and commenced to interfere with the investigation. Knowles identified himself as a city police officer. Appellant continued obstructing.

We think the evidence was sufficient to establish that Officer Knowles was engaged in the lawful execution of a legal duty at the time of the incident. A municipal police officer, although not authorized to arrest outside his jurisdiction unless such arrest is in “hot pursuit”, Section 901.25, Florida Statutes (1975), may conduct a lawful investigation outside his territorial jurisdiction. Where an individual with violence obstructs an officer, engaged in the lawful execution of a legal duty, viz — that of investigation, a violation of Section 843.01 has been committed.

The judgment and sentence are AFFIRMED.

McCORD, C. J., and BOYER and MILLS, JJ., concur.


text:
    Charles FAUCETT, Ricky Young and Joseph Cozzi, Appellants, v. L. L. WAINWRIGHT, Secretary, Department of Corrections, Appellee.
    No. JJ-155.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1978.
    Charles Faucett, in pro. per., for appellants.
    Robert L. Shevin, Atty. Gen. and Randy Schwartz, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from the denial of a petition for injunctive relief or in the alternative for a writ of mandamus. Petitioners, who are incarcerated in a state prison, alleged that the Department of Corrections failed to provide an up-to-date law library and meaningful access to the law library. The trial court denied the petition without a hearing stating in its order that “the matters complained of are currently being resolved by the State of Florida.” The record before this court reveals no factual basis for the assertion by the trial court.

We reverse and remand with instructions for the trial court to issue an alternative writ of mandamus or an order to show cause why the alternative writ of mandamus should not be granted and then to hold a hearing.

McCORD, C. J., and BOYER and MILLS, JJ., concur.


text:
    Robert James HUFF, Appellant, v. STATE of Florida, Appellee.
    No. 76-2218.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.
    Robert S. McCain, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Collins v. State, 230 So.2d 711 (Fla. 4th DCA 1970) and Jones v. State, 227 So.2d 826 (Fla. 4th DCA 1969).

DOWNEY, C. J., and ANSTEAD and DAUKSCH, JJ., concur.


author: PER CURIAM. BAKER, JOSEPH P., Associate Judge,

text:
    The STATE of Florida, BOARD OF MEDICAL EXAMINERS, Appellant, v. Ann ARTERBURN et vir., Kenneth L. Winslow, et al., Appellee.
    No. 77-177.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.
    Stephen Marc Slepin and Paul W. Lambert of Slepin & Schwartz, Tallahassee, for appellant.
    S. Sammy Cacciatore, Jr., and James A. Sisserson of Nance & Cacciatore, Melbourne, for appellees.
   PER CURIAM.

One of the defendants, the Florida Board of Medical Examiners, responded to plaintiffs’ complaint with a motion raising a number of issues including its right to venue in Leon rather than Brevard County. The other defendant, a medical doctor against whom a malpractice claim was asserted, did not respond and has not responded to this day. The Board’s motion was granted by the trial judge on April 28,1976, on the grounds that venue as to the Board of Medical Examiners lay in Leon County.

After a number of subsequent motions had been filed, after much correspondence, several memoranda, a number of discussions and little progress the court entered an order on January 7, 1977, confirming its ruling 8 months earlier that venue lay in Leon County, but going on to sever plaintiffs’ claim for malpractice against Dr. Win-slow. After a couple more weeks of conversation among counsel and the court, a third order was entered on January 24, 1977, confirming that venue properly lies in Leon County, confirming that the alleged cause of action against the doctor is severed, and this order “requested” the clerk to transfer a certified copy of the case against the Board of Medical Examiners to the clerk in Tallahassee; the court retained the original for the case against the doctor.

When the third order, the one of January 24, 1977, was entered, it followed by five days a notice of appeal that had been filed by the Board appealing from the January 7 order. The Board later amended its appeal to include both the January 7 and January 24 orders.

We reverse the orders of January 7 and January 24 insofar as they sever the case against the doctor from the case against the Board. Having correctly entered its order determining that venue was in Leon County, because one of the defendants, the Board, could only be sued there, the court had only to carry out the transfer under Fla.R.Civ.P. 1.060(b) and 1.170(j). Questions of severance and other questions arising in the case are properly for consideration of the court in Leon County.

DOWNEY, C. J., and BERANEK, J., concur.

BAKER, JOSEPH P., Associate Judge, dissents with opinion.

BAKER, JOSEPH P., Associate Judge,

dissenting:

This case began with a complaint in two counts, one alleging malpractice of a doctor and the other count alleging negligence of the Florida Board of Medical Examiners in allowing the defendant doctor to get into practice.

The doctor failed to respond in any way to the suit, unless you count the action of a trustee in bankruptcy who got a stay of this and other cases against the doctor. The Board of Medical Examiners on its part filed a motion seeking a change of venue. On April 5, 1976, the Circuit Judge ruled that venue lay in Leon County where the Board had its headquarters, a ruling with which no one has any quarrel. Amelia Island Mosquito Control District v. Tyson, 150 So.2d 246 (Fla. 1st DCA 1963). Three days after the judge announced his granting of the change of venue, plaintiffs had second thoughts about the effect of a transfer of venue, and they moved for a rehearing. The judge’s order was reduced to writing and signed and filed a few weeks later on April 28, 1976.

Then, on September 21, 1976, plaintiffs filed a second motion, this time seeking to sever the case against the Board from the case against the doctor. The board traversed this motion arguing that because an order transferring venue had been entered, the Brevard County circuit judge had no jurisdiction even to amend the transfer order or correct it to show that it applied only to the Board; neither could the suit be prosecuted in Leon County (argued the Board) because the transfer could not be completed until both the Board and the doctor could be transferred together, but that couldn’t be done so long as the doctor remained mired in his bankruptcy (and he still is). Ergo, the suit could not be prosecuted anywhere against either defendant, or in other words, the Board was saying to the plaintiff, “gotcha”.

On January 7, 1977, the Circuit Judge denied plaintiffs’ timely motion for rehearing on the change of venue and granted the severance of the case against the Board from the case against the doctor. An appeal was taken from this order as being made after the trial court in Brevard County had lost jurisdiction with the transfer of venue.

But that’s not the end. On January 24, 1977, the trial judge entered an amended order that confirmed the January 7 order in all respects, and this amended order added some directions to the court clerk as to how to maintain a court file on the case in Brevard County and still transfer it to Leon County. The clerk was no doubt grateful, but not the Board, for the Board had filed its first notice of appeal on January 19, five days before the amended order. The Board now attacks the amended order of January 24 by an amended notice of appeal on the grounds that the trial court lost whatever jurisdiction it had on the filing of the notice of appeal on January 19.

The argument that a circuit court loses jurisdiction by entering an order transferring venue cannot be reconciled with Fla.R. Civ.P. 1.530 providing for motions for rehearing, and a timely motion for rehearing was filed in this case.

Besides, I read the January 7 order as simply explaining the earlier change of venue as applying to the Board alone, being the only party that sought a change of venue, being the only one entitled to it and being the only party defendant on whom the court could make a transfer while the bankruptcy stay was in effect. By the same token the January 24 order was nothing but an amendment clarifying and elaborating the January 7 order by directing the clerk on how to handle the court files to carry out the court’s order. Rule 1.540, Fla.R.Civ.P., makes official the court’s continuing jurisdiction to correct orders, even final ones, but common law (and common sense) recognize the same power of a court to amend its orders to prevent unjust and unintentional “gotchas”. For example, see Florida Development Co. v. Polk County National Bank, 76 Fla. 629, 80 So.2d 560 (1919), where the final judgment was 21 years old when a clerk’s mistake was corrected to prevent the judgment from being unenforceable.

I would affirm the trial court judge.


author: DOWNEY, Chief Judge.

text:
    Bill LOVE, Appellant, v. ALLIS-CHALMERS CORPORATION, W. D. Equipment Rentals & Sales, Inc., a Florida Corporation, Richard Dowds, W. M. Perine and Wilma Perine, Appellees.
    No. 77-852.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.

      Irby G. Pugh of Barco & Pugh, Orlando, for appellant.
    Robert D. Melton, Orlando, for appellees.
   DOWNEY, Chief Judge.

Appellee, Allis-Chalmers, the holder of a judgment dated November 19,1975, against W. M. Perine and others, obtained a writ of execution and had the sheriff levy upon a machine known as a front-end loader found in the possession of Perine. Appellant, Bill Love, filed a suit for replevin claiming ownership and right to possession of the loader; the suit was dismissed. On May 7, 1976, Love attempted unsuccessfully to intervene in the original litigation giving rise to the judgment in question. Also on May 7,1976, Love filed a motion for stay of execution, incorporating three affidavits which will be discussed hereinafter. On May 13, 1976, Love then sought relief in the Federal District Court seeking to enjoin a sale pursuant to the levy, and asserting the unconstitutionality of Section 56.16, Florida Statutes (1975). When Love’s application for temporary injunction was denied he posted a bond on May 15, 1976, as required by Section 56.16, Florida Statutes (1975), and a proposed sheriff’s sale was prevented.

On May 10, 1976, appellee took Love’s oral deposition and on May 17, 1976, Love was served with interrogatories, a request for admissions and a request to produce. When Love did not respond to either the interrogatories or the request to produce appellee obtained an order compelling discovery. Love also did not timely answer the request for admissions, but did file sworn answers on September 3, 1976.

On September 16, 1976, appellee moved for summary judgment relying primarily on Love’s failure to timely answer the request for admissions which left the matters admitted on the record.

On November 2, 1976, Love requested leave to amend the answers to the requests for admissions. Without ruling on that motion on December 13, 1976, the trial court entered summary judgment in favor of ap-pellee. Love moved for a rehearing attaching three additional affidavits which stated the loader was owned by Love. The motion for rehearing was denied and this appeal ensued.

This record is replete with evidence that there was a genuine issue of fact as to the ownership of the front-end loader, and an issue of fact as to appellee’s right to sell the loader to satisfy its judgment. The problem involved is trying to sort out what evidence was appropriate for consideration by the trial court on the motion for summary judgment. The parties have devoted a good portion of their briefs to a discussion of the evidence attached to the motion for rehearing but we do not find it necessary to reach the problems involved in that phase of the case. In our opinion the record before the trial court was such that the order granting summary judgment should not have been entered; the record reflected a genuine issue of fact.

When the trial court considered the motion for summary judgment, the record contained Love’s deposition, Love’s answers to interrogatories, Love’s sworn response to the request to produce, and the affidavits of Love, Perine and Strong, which were attached to the motion for stay of execution. In sum, those pleadings, depositions, etc., showed that Love claimed he had been the owner of the loader for over a year; Bill Lovell bought it from Allis-Chalmers for Love; Love had been paying Lovell for the loader during all that period of time; Bill Perine, the judgment debtor, had no interest in the loader and was using it at the time of levy with Love’s consent. One of the Affidavits referred to is that of Hope Strong, a lawyer, who also corroborated the foregoing facts.

In the face of that proof in the record, appellee relied solely upon Love’s admissions which resulted from his untimely answers to the request therefor. It seems pertinent that at the time appellee filed its request for admissions appellant’s deposition in which he claimed ownership of the loader was already of record as were the aforementioned affidavits of Strong, Perine and Love. Additionally, even as to the request for admissions there were untimely sworn answers which contradicted the technical admissions, and furthermore Love had a pending motion to amend the response to the request for admissions.

In this state of the record we are convinced that justice precluded the trial judge from entering summary judgment for ap-pellee and thus the entry of that order constituted an abuse of discretion. The case of Old Equity Life Insurance Company v. Suggs, 263 So.2d 280 (Fla.2nd DCA 1972), and Pleasant Hill Bank v. United States, 60 F.R.D. 1 (W.D.Mo.1973), are good explications of the spirit of the rule involved here and support our conclusion.

We have no difficulty in distinguishing Farish v. Lum’s, Inc., 267 So.2d 325 (Fla.1972). There the trial court exercised his discretion to enter summary judgment because the defendant had not properly answered the request for admissions and had shown no valid reason for the improper response. The trial judge in Farish did not have a record replete with evidence that the technical admission was contrary to the true facts, which facts were reflected in the record when the request for admissions was filed. In addition, the rule involved has been liberalized since Farish to allow the rectification of an improper response to a request for admissions by allowing withdrawals or amendment “when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” It might be argued that this amendment to the rule does not include a failure to answer but only applies to insufficient answers or improperly filed answers. We hold that it also applies in the situation here where no answers were timely filed, but the record is replete with evidence contradicting the technical admissions arising out of the unanswered requests for admissions.

Accordingly, we reverse the judgment appealed from and remand the cause with directions to vacate the order granting summary judgment, allow appellant to file his sworn answers to the request for admissions, and for further proceedings consistent with this opinion.

REVERSED AND REMANDED with directions.

LETTS, J., concurs.

CROSS, J., concurs only in conclusion.

      . Fla.R.Civ.P. 1.370(b).


text:
    J. W. DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1112.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.

      Richard L. Jorandby, Public Defender, and Marc E. Kirk, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review of the record, this court finds that there is insufficient evidence to sustain the appellant’s conviction for uttering a forgery. There was no evidence that the appellant had knowledge that the signature, which appeared on a check which he presented for cashing, was a forgery. Under such circumstances the appellant’s motion for judgment of acquittal should have been granted.

Accordingly, the judgment and sentence are reversed with directions that the appellant be discharged.

ANSTEAD, LETTS and MOORE, JJ., concur.


author: DAUKSCH, Judge.

text:
    Daryl Emmett WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1352.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., and Kenneth G. Spillias, Legal Intern, West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant was sentenced to a term of 20 years in the custody of the Florida Division of Corrections at hard labor. Because there is no statutory provision for imprisonment at hard labor those words are stricken from the sentence. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

There is filed in the record here an affidavit of Louie L. Wainwright, Secretary, Department of Offender Rehabilitation, which says he is the custodian of the appellant and his records and that the appellant’s sentence is subject to the three year mandatory minimum sentence required under Section 775.087, Florida Statutes. This affidavit is incorrect because the judgment does not require this three year minimum and it could not under Earnest v. State, 351 So.2d 957 (Fla.1977).

AFFIRMED as modified.

ANSTEAD and MOORE, JJ., concur.


text:
    Willie L. MACK, Appellant, v. STATE of Florida, Appellee. Albert A. LEACH, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-1549, 77-2591.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.
    David M. Porter, Public Defender, Eighteenth Judicial Circuit, Titusville, and Joan H. Bickerstaff, Sp. Asst. Public Defender, Cocoa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Charles W. Musgrove and Charles A. Stampelos, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

These are consolidated appeals challenging the procedure followed by the trial court in accepting a plea of guilty by Willie L. Mack and a plea of nolo contendere without a reservation of the right to appeal, by Albert A. Leach. Under Section 924.-06(3), Florida Statutes (1977) neither appellant was entitled to a direct appeal and review of the plea proceedings can be obtained only by collateral attack. Accordingly, the appeals are dismissed.

DOWNEY, C. J., and ANSTEAD and DAUKSCH, JJ., concur.


text:
    Charles MELEMED, Appellant, v. Morton V. SAVOY and Barbara J. Savoy, his wife, Appellees.
    No. 77-1729.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.
    Charles A. Finkel of Long & Finkel, P. A., Hallandale, for appellant.
    John M. Thomson of Tobin & Thomson, Coral Gables, for appellees.
   PER CURIAM.

This is an appeal from a final summary judgment granted against the appellant in an action in which he sought to obtain an equitable lien on property owned by his daughter and son-in-law, the appellees. We find no error in the trial court’s entry of summary judgment on the equitable lien action. However, we feel that the appellant should have been granted leave to file an amended complaint seeking a money judgment for the appellees' failure to repay a loan. Accordingly, the final summary judgment is affirmed; but the order denying the appellant’s motion to amend is reversed with directions for further proceedings consistent with this opinion.

DOWNEY, C. J., and ANSTEAD and DAUKSCH, JJ., concur.


text:
    Catherine R. CURRAN, Appellant, v. Charles C. CURRAN, Appellee.
    No. 77-1776.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.
    Robert G. Murrell of Sam E. Murrell & Sons, Orlando, for appellant.
   DAUKSCH, Judge.

We have on appeal a judgment dissolving a marriage. The question is one of jurisdiction and Section 61.021, Florida Statutes which requires residency.

Appellee was a military serviceman, United States Air Force, stationed in Korea until his discharge in either March, 1975, according to his testimony at trial, or April, 1976, according to his answer to interrogatories. In September, 1975 the appellee filed suit for dissolution of his marriage to appellant. He obtained service of process upon her where she resided in Virginia and she filed her answer.

Appellee alleged he was a Florida resident in his petition for dissolution of marriage. In support of this allegation he testified he came to Florida while in the service and stayed here from March or April 1961 to nearly March of 1962, “excluding TDY.” He claimed his official address for residency purposes to be his first ex-wife’s Apopka, Florida address. He registered to vote in Orange County, listing that address. He testified he had last been there in 1963. His previous wife testified he had never resided at her address but they had stayed together in a trailer in Orlando.

Without setting out all of the testimony we cite in example that he was a civilian residing in Korea at the time of the trial, living with a lady who is the mother of his child; he has no Florida driver license but has a Virginia license; he entered the service from either New York or Connecticut; he files his income tax returns and does his banking in California; and he and his wife never lived together in Florida but did live together in California.

Based upon his testimony he was in Florida for less than a year in 1961—1962 and intended to retire to Florida after his discharge from the military, the trial court found jurisdiction.

We must determine the evidence to be insufficient to satisfy the requirements of the residency statute. It is not sufficient to stay in Florida for a short period of time with the intent to come back later and become a permanent resident. As was said in Campbell v. Campbell, 57 So.2d 34 (Fla.1952) there must be an actual presence in Florida coupled with an intention at that time to make Florida his residence.

Judgment REVERSED.

DOWNEY, C. J., and ANSTEAD, J., concur.

      . § 61.021, Fla.Stat.: Residence required.—To obtain a dissolution of marriage the party filing the proceeding must reside 6 months in the state before filing the petition, but this does not affect any suit filed before October 1, 1957.

      . Temporary duty away from his assigned station.


author: BERANEK, Judge.

text:
    KOEHLER ELECTRICAL SUPPLY COMPANY, INC., Appellant, v. Bernard BERKLEY and Mildred Berkley, his wife, and American Fidelity Fire Insurance Co., Appellees.
    No. 77-2202.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.
    M. Ross Shulmister of Josias & Shulmis-ter, Fort Lauderdale, for appellant.
    S. Harvey Ziegler of Meyer, Weiss, Rose, Arkin, Sheppard & Shockett, P. A., Miami Beach, for appellees.
   BERANEK, Judge.

We are called upon here to determine whether a mechanic’s lien was timely foreclosed. Appellant recorded a claim of lien on August 16,1976, and filed a complaint to foreclose the lien on August 16, 1977. The trial court dismissed the action with prejudice for failure to enforce the lien within one year. We reverse.

The applicable mechanic’s lien statute provides:

“No lien provided by part I shall continue for a longer period than 1 year after the claim of lien has been recorded, unless within that time an action to enforce the lien is commenced.” Fla.Stat. Sec. 713.22(1).

The Rules of Court uniformly prescribe that in computing time, the day of the event from which the period of time begins to run shall not be included. Rule 1.090(a) Fla.R. Civ.P., Rule 3.040 Fla.R.Crim.P., Rule 9.420(e) Fla.R.App.P. In construing Fla. Stat. Sec. 95.031 which provides for computation of time under statutes of limitation, the court in Morrey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla.2d DCA 1976) similarly held. Appellant’s complaint was, therefore, filed within one year and should not have been dismissed.

Reversed and remanded.

LETTS and MOORE, JJ., concur.


text:
    CLEVETRUST REALTY INVESTORS, Petitioners, v. Stephen W. TOOTHAKER and Gulf Insurance Company, Respondents.
    No. 78-193.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.

      Milton S. Blaut, of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for petitioners.
    William D. Ricker, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for respondents.
   DOWNEY, Chief Judge.

By petition for certiorari Clevetrust Realty Investors seek to quash an order of the trial court severing the defendant’s insurance carrier as a party defendant prior to the trial of the case.

Clevetrust filed suit against Stephen W. Toothaker in that defendant, Toothaker, a member of the Florida Bar, had entered into an agreement with Clevetrust Realty Investors, a Massachusetts Business Trust, whereby it was agreed that Clevetrust would forward to Toothaker partial releases of mortgages on individual units of a condominium project developed by Toothaker’s client, The Barth Corporation. Toothaker was to hold these releases until he had received the release prices for each unit and he was to then forward the monies received to Clevetrust. The complaint further alleged that Toothaker failed to abide by the trust and escrow agreement and that he had a policy of insurance with Gulf Insurance Company which provided coverage for such a breach of contract.

At a pretrial conference held almost three years after suit was filed Gulf Insur-anee Company filed a motion to sever it as a party defendant because Gulf was defending its insured Toothaker under a reservation of rights. It was further alleged in the motion that Toothaker and Gulf believed once all the facts were developed at trial the question of coverage would be resolved without the need for further judicial effort, and lastly that to try the coverage question at trial would unnecessarily delay and confuse the issues. At the hearing on said motion counsel for Toothaker and Gulf advised the court that the policy covered Toot-haker for the acts alleged in the complaint unless fraud on the insured’s part was proven; neither counsel knew of any fraud on Toothaker’s part, did not believe any fraud had been committed, nor did they think any evidence of fraud would be produced at trial. Defendants’ counsels’ strongest position seems to have been that one does not know what may be shown at trial and there is a possibility that evidence of fraud might be developed. The trial court granted the motion to sever and that order is the subject of this appellate review.

The parties concede that this case is to be decided on the law as it existed prior to the passage of recent statutes providing for non-joinder of automobile insurance companies and liability insurance generally. Thus, under the applicable law petitioner had a right to name the defendant’s insurance carrier as a party defendant. The court had the authority to sever Gulf in furtherance of convenience or to avoid prejudice to the parties, rule 1.270(b), Fla.R.Civ.P., but its discretion to do so is not boundless. There must be some justiciable issue regarding the insurance policy of coverage in order to justify the severance. Godshall v. Unigard Insurance Company, 281 So.2d 499 (Fla.1973). Counsel’s speculation that evidence of fraud may turn up after three years of litigation in which it has not yet made an appearance is hardly a justiciable issue warranting the severance in question.

Respondent also contends that the trial court’s inclusion of the following provision makes the order in question acceptable. The trial court in granting the severance provided:

“It has been stipulated . . . that if there is no evidence against . TOOTHAKER, by the end of the trial indicating support for the reservation of rights under which . . . GULF INSURANCE COMPANY, is now defending . . . TOOTHAKER, then and in that event, GULF INSURANCE COMPANY will stipulate that any judgment which is entered against TOOTHAKER, may also be entered against . . . GULF INSURANCE COMPANY.”

We disagree. Petitioner had a right to name Gulf as a defendant and to try the case with all of the proper parties defendant before the jury. Petitioner was entitled to have the jury know that Toothaker was insured. As the Supreme Court said in Stecher v. Pomeroy, 253 So.2d 421 (Fla.1971):

“The insurance carrier’s position as a real party in interest is a position of continuing interest which includes the trial of the cause which a third party has asserted against its insured. To rule otherwise on a motion for severance would be to defeat the purposes of the rule enunciated in these eases with regard to the real party in interest so as to reflect the presence of financial responsibility which should be left apparent before the jury (without other express mention, of course) and the other bases set forth in those holdings. The routine granting of such motions for severance except for such good cause related to insurance coverage would be a misapprehension of this Court’s holding.” 253 So.2d at 424.

That holding was followed in Godshall, supra, wherein it was added:

“For that reason, we hold that if the trial court grants severance absent a justicia-ble issue relating to insurance, such as a question of coverage or of the applicability or interpretation of the insurance policy or other such valid dispute on the matter of insurance coverage, such court commits harmful error.” 281 So.2d at 502.

Accordingly, the petition for certiorari is granted and the order of severance is quashed and the cause is remanded with directions to reinstate the Gulf Insurance Company as a party defendant.

CERTIORARI GRANTED; ORDER OF SEVERANCE QUASHED; AND CAUSE REMANDED, with directions.

CROSS and LETTS, JJ., concur.

      . Section 627.7262, Florida Statutes (1977).

      . Ch. 77-468, Laws of Florida (1977).


text:
    Anwarul HOQUE, Appellant, v. Ernesto A. TOBIAS, Appellee.
    No. 78-333.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.
    J. Russell Hornsby, Orlando, for appellant.
    J. Chester Kerr, Kissimmee, for appellee.
   DAUKSCH, Judge.

Appellant has filed an interlocutory appeal from an order which is not one from which an interlocutory appeal may be taken.

APPEAL DISMISSED.

CROSS and LETTS, JJ., concur.


text:
    Gilbert E. MORCROFT and Catherine S. Morcroft, his wife, Petitioners, v. DEPARTMENT OF NATURAL RESOURCES, State of Florida, Respondent.
    No. 78-1132.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.
    Gilbert E. Morcroft, pro se.
    Jack W. Pierce and Wings S. Benton, Department of Natural Resources, Tallahassee, for respondent.
   PER CURIAM.

Petitioners have filed their “Petition for Review of Order of Department of Natural Resources, State of Florida, Dated April 27, 1978” wherein they contest the establishment of a restricted boating area in South Lake, City of Hollywood, Florida. We treat the petition as an appeal seeking review of administrative action pursuant to Rule 9.110. The record reflects that prior to March 5, 1976, the City of Hollywood requested the Department of Natural Resources to establish the restricted area pursuant to Section 371.522, Florida Statutes. Notice of the City’s intent to restrict the area of South Lake by establishing speed limits was published in the Hollywood Sun Tattler on March 27, 1976, and although not required by Section 371.522, Florida Statutes, the City held a public hearing on April 7, 1976, at which time no one requested to be heard. Thereafter, the City adopted a resolution to provide for the speed restrictions. On January 12, 1977 the Department of Natural Resources, by letter, issued its final approval for the requested restricted area and the placing of regulatory markers controlling the speed within the restricted area.

Appellants (petitioners) now appeal from a letter of April 27, 1978 which they contend is a final order of the Department of Natural Resources establishing the South Lake restricted area. To the contrary, the said letter of April 27, 1978, together with its attachments, indicate that it deals solely with restricted zones on the intra-coastal waterway. Accordingly, any appeal would necessarily have been from the order of January 12, 1977 and this appeal is therefore untimely. Fla.R.App.P. 9.110(b). The record does not support a review of the order of April 27, 1978.

Appeal dismissed.

DOWNEY, C. J., and CROSS and MOORE, JJ., concur.


text:
    Teddy Lyn FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. KK-24.
    District Court of Appeal of Florida, First District.
    Oct. 5, 1978.
    Teddy Lyn Frazier, in pro per.
   PER CURIAM.

Appellant challenged the eyewitness identification at his trial by way of a motion to vacate, set aside or correct sentence. (Rule 3.850, Fla.R.Crim.P.) The trial court denied the motion without an evidentiary hearing and we affirm.

The testimony concerning the pre-trial line-ups and the identification at trial was properly presented to the jury for resolution. Furthermore, the issue of the sufficiency of the eyewitness identification could have been raised on direct appeal. Von Eberstein v. State, 270 So.2d 444 (Fla. 1st D.C.A. 1972).

We, therefore, AFFIRM.

McCORD, C. J., and BOYER and MILLS, JJ., concur.


text:
    Philip George BAGLEY, Appellant, v. David BRIERTON, Superintendent Florida State Prison, Appellee.
    No. KK-143.
    District Court of Appeal of Florida, First District.
    Oct. 5, 1978.

      Joseph Jordan of Bailey & Jordan, P. A., West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn N. Snurkowski, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Appellant filed a petition for a writ of habeas corpus based on several grounds. The trial court denied the petition without a hearing. The two grounds brought to this court on appeal are that appellant was deprived of adequate medical care and of due process of law in disciplinary proceedings.

We do not believe that the allegations regarding the adequacy of medical care establish conclusively that, if true, appellant is entitled to relief. The denial of the petition for writ of habeas corpus on that ground is, therefore, affirmed.

The petition does state, however, specific allegations regarding the disciplinary proceedings which, if true, would establish that the Department of Corrections failed to comply with its own rules and with the procedural requirements of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Accordingly, we reverse and remand for a hearing as to the adequacy of the disciplinary proceedings.

Reversed and remanded.

McCORD, C. J., and BOYER and MILLS, JJ., concur.


text:
    Carl SYLVESTER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1652.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1978.
   BY ORDER OF THE COURT:

Upon order of the Supreme Court of Florida citing Clark v. State, 363 So.2d 331 (1978), issued September 12, 1978 and now lodged in this court, our opinion filed February 11, 1977, and published at 341 So.2d 203 (Fla. 4 DCA 1977), is hereby withdrawn and the judgment and sentence appealed from, affirmed.