author: ORFINGER, Judge.

text:
    William J. MEYER, Appellant, v. STATE of Florida, Appellee.
    No. 82-211.
    District Court of Appeal of Florida, Fifth District.
    June 2, 1982.
    James B. Gibson, Public Defender, James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ON MOTION FOR REHEARING

ORFINGER, Judge.

On February 17, 1982, petitioner filed a petition for writ of habeas corpus to secure belated direct review of his criminal conviction. The petitioner alleged that on May 6, 1981, he had been convicted by a jury on one count of burglary of a structure and two counts of second degree grand theft. On May 7, 1981, he was sentenced, after which he alleges that he immediately requested his court appointed public defender to appeal the convictions and sentences. The petition further alleges that the public defender “negligently, though inadvertently, failfed] ... to timely file the notice of appeal ...” and other necessary pleadings, and thus through “state action . .. [had] deprived petitioner of his right to a direct appeal.”

Petitioner further alleged that under the authority of cases such as Baggett v. Wainwright, 229 So.2d 239 (Fla.1969) and Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967), he was thus entitled to belated direct review. We granted the petition. On motion for rehearing, the State asks that we reconsider our decision in the light of Polk County v. Dodson, - U.S. -, 102 S.Ct. 445, 72 L.Ed.2d 509 (1981).

Belated appellate review of criminal convictions in Florida appears to have its current origin in Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967). An earlier petition writ of habeas corpus, denied without opinion, 177 So.2d 477, had been reversed by the United States Supreme Court on the authority of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, (1963). Complying with the mandate of the U.S. Supreme Court, and considering the report of a commissioner appointed to determine the truth of the factual allegations, our supreme court held that the denial by the trial court of the indigent defendant’s request that counsel be appointed to represent him on appeal was a denial of due process under the Constitution of the United States such as to entitle the defendant to belated appellate review of his conviction.

In Baggett v. Wainwright, 229 So.2d 239 (Fla.1969), our supreme court made it clear that the right to the appointment of counsel for the purpose of appeal was measured against federal constitutional standards. In Baggett, the pro se petition for writ of habeas corpus alleged that petitioner had been convicted of certain felonies and although represented at trial by private counsel, he had made known to the trial judge his indigency and his desire to appeal his convictions; that the trial judge had advised him that counsel would be appointed to prosecute his appeal; that several months later he had communicated with the trial judge who advised him that his appeal was being handled by the public defender and that subsequent communication with the public defender revealed that his appeal had never been filed.

Noting that petitioner had sufficiently alleged facts which gave rise to a duty on the part of the State to afford him the necessary incidents of an appeal, including appointment of counsel, Id. at 241, the court held that additionally, it was necessary to determine that the deprivation of the necessary incidents of an appeal be attributable to state action, because of the requirement that state action be present to activate the due process clause of the Federal Constitution.

The court then held:

In most instances little difficulty is encountered in ascertaining whether there exists a failure or deprivation attributable to state action. Generally, in the present context, state action is shown when a responsible official in the State’s system of justice fails to take proper steps toward affording the necessary incidents of an appeal, e.g., appointment of counsel for a convicted defendant, after the State’s duty to act in this particular is activated by the defendant’s compliance with the requirements set forth in the first test stated above. Applying this rule to the present case, one could not question the existence of state action if the established facts show the trial judge never responded to such test and appointed counsel to represent petitioner on appeal. The allegations in this case do not exclude the possibility of this factual finding.
If, however, it should be factually established in this case that the trial judge actually appointed counsel to represent petitioner on his appeal and that the failure to timely perfect and prosecute petitioner’s appeal was due to the default or neglect of the court-appointed attorney, a difficult question is presented as to whether petitioner was deprived by State action of his right to appeal, or the necessary incidents thereto. The difficulty reposes in the contention that the requirements of equal protection do not operate to afford an indigent criminal appellant any higher or greater rights than those available to a nonindigent. Since the risk of failure to timely perfect an appeal is one which might befall a nonindigent represented by private counsel, it is argued this type of default should not be attributed to the State in testing the application of the Fourteenth Amendment. We are not persuaded by this argument.

Id. at 242.

Although Baggett does not directly hold that the failure of court appointed counsel to properly perfect a requested appeal constitutes “state action”, that case has been relied on for that theory, and the Supreme Court thereafter made it clear that the failure of a court appointed attorney to file a timely appeal was “state action” as defined by Baggett, so as to entitle a defendant to belated appellate review of his conviction. Costello v. State, 246 So.2d 752 (Fla.1971).

Polk County v. Dodson, is relied on by the State as support for the proposition that Hollingshead, Baggett and Costello are no longer effective to determine the federal constitutional question of “State action” as it applies to a due process violation. In Polk County, the court found the issue to be whether a public defender acts “under color of state law” when representing an indigent defendant in a criminal matter. Dodson, the defendant in the criminal proceeding, had filed an action for damages under 42 U.S.C. Sec. 1983 against Polk County, its Offender Advocate, its Board of Supervisors, and Shepard, an attorney in the Offender Advocate’s Office, alleging that Shepard, who had been assigned to represent Dodson in an appeal of a criminal conviction to the Iowa Supreme Court, had failed to represent him adequately, since Shepard had moved to withdraw as counsel on the ground that Dodson’s claims were legally frivolous. The Iowa Supreme Court had granted Shepard’s motion and had dismissed Dodson’s appeal. In the District Court, Dodson alleged that Shepard’s actions, particularly her motion to withdraw, had deprived him of his right to counsel, subjected him to cruel and unusual punishment and denied him due process of law. He sought injunctive relief, as well as damages. To establish Shepard acted under color of State law, a jurisdictional requisite for a § 1983 action, Dodson relied on Shepard’s employment by the county. The district court dismissed the claims against all of the defendants, but the court of appeals reversed, (8th Cir.) 628 F.2d 1104. The United States Supreme Court held in pertinent part that a public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to an indigent defendant in a state criminal proceeding and reinstated the district court’s dismissal of the complaint.

The majority opinion by Justice Powell held:

In this case the Offender Advocate for Polk County assigned Martha Shepard to represent Russell Dodson in the appeal of his criminal conviction. This assignment entailed functions and obligations in no way dependent on state authority. From the moment of her appointment, Shepard became Dodson’s lawyer, and Dodson became Shepard’s client. Except for the source of payment, their relationship became identical to that existing between any other lawyer and client. “Once a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.” American Bar Association Standards for Criminal Justice, 4-3.9 (2d ed. 1980).

Id. 102 S.Ct. at 449.

The court further explained:

But a defense lawyer is not, and by the nature of his function cannot be, the servant of an administrative superior. Held to the same standards of competence and integrity as a private lawyer, see Moore v. United States, 432 F.2d 730 (CA3 1970), a public defender works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client. “A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.” DR 5-107(B), ABA Code of Professional Responsibility (1977 ed.).
Second, and equally important, it is the constitutional obligation of the State to respect the professional independence of the public defenders whom it engages. This court’s decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), established the right of State criminal defendants to the “guiding hand of counsel at every step in the proceedings against [them].” Id., at 345, 83 S.Ct., at 797, quoting Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). Implicit in the concept of a “guiding hand” is the assumption that counsel will be free of State control. There can be no fair trial unless the accused receives the services of an effective and independent advocate. See, e.g., Gideon v. Wainwright, supra; Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). At least in the absence of pleading and proof to the contrary, we therefore cannot assume that Polk County, having employed public defenders to satisfy the State’s obligations under Gideon v. Wainwright, has attempted to control their action in a manner inconsistent with the principles on which Gideon rests.

Id. at 451-52.

Neither Baggett nor Costello explained the rationale for the holding that “state action” was involved in the failure of a public defender to file a proper and timely appeal. Perhaps the basis for the holding is the public nature of the office of the Public Defender. Polk County raises some doubts as to the continued efficacy of that rationale, at least where federal constitutional standards are applied.

“Within the context of our legal system, the duties of a defense lawyer are those of a personal counselor and advocate. It is often said that lawyers are “officers of the court.” But the courts of appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor “under color of state law” within the meaning of § 1983. In our system a defense lawyer characteristically opposes the designated representatives of the State. The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness. But it posits that a defense lawyer best serves the public, not by acting on behalf of the State or in concert with it, but rather by advancing ‘the undivided interests of his client.’ This is essentially a private function, traditionally filled by retained counsel, for which state office and authority are not needed.”

102 S.Ct. at 450.

A defense lawyer is an adversary of the State, and he is no less an adversary because the State pays him. Florida has adopted the same rule of professional conduct alluded to in Polk County:

“A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.”

Fla. Bar Code of Prof. Resp. DR 5-107(B). Under the rationale of Polk County, if a public defender representing his client does not operate under color of state law, it is difficult to perceive that “state action” is involved in his representation (or misrepresentation) of that client.

The same principles which require the State to provide an indigent defendant with independent counsel also require that he be provided with effective representation. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The former distinction between the results of ineffective assistance of publicly appointed counsel and privately retained counsel have been eliminated. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Vagner v. Wainwright, 398 So.2d 448 (Fla.1981). Now, the ineffective assistance of either publicly appointed or privately retained counsel is ground for collateral relief. Cuyler; Vagner. The State posits that these holdings necessarily require that the theory of belated appellate review be extended to defendants represented by private counsel, since privately represented and publicly represented defendants are entitled to equally effective representation. If indeed, the shadow of “state action” dogs the footsteps of every action (or inaction) of a public defender, there appears to be a basis for the State’s concern, at least in the possibility that an extension of the Baggett rule to all defendants effectively does away with any time limits for filing appeals from criminal convictions, while refusal to extend that privilege to privately represented defendants would appear to raise serious equal protection problems. We confess that Polk County appears to knock the props from under the “state action” theory in the context here.

We are constrained, however, to follow Hollingshead, Baggett and Costello, under the dictates of Hoffman v. Jones, 280 So.2d 431 (Fla.1973), so the petition for rehearing is denied. However, because of the public importance of the question and because of the need to establish uniform procedures for appeal applying to all criminal defendants on a non-discriminatory basis, we will certify questions to the Supreme Court at the conclusion of this opinion.

We would be derelict in our duty if we did not comment on what we perceive to be a serious violation of professional ethics arising out of the “belated review” cases, where the neglect is that of an attorney, whether he be publicly appointed or privately retained. This court is concerned about the growing number of habeas corpus petitions for belated review being filed here. While we have recognized that under the cited cases the defendant is entitled to belated review where a proper showing is made, we believe that our inquiry can no longer stop there. These petitions, generally filed by members of the public defender’s staff, but also filed by court appointed private counsel, merely allege that the attorney has failed, through neglect, to take the proper steps to perfect an appeal, thus “state action” has deprived the defendant of his right to appeal. While apologizing to the court for the neglect, no attempt is made to justify or excuse that neglect, and it is apparent that a “form” pleading is being used in these cases.

The ethical obligation of an attorney requires diligent attention to the legal problems of his client. No lawyer can ethically neglect a legal matter entrusted to him, nor handle it incompetently, Fla. Bar Code of Prof. Resp., DR 6-101, DR 7-101(A), and he should be sanctioned when he does. The fact that the courts have extricated the client from the consequences of the lawyer’s neglect to timely file an appeal does not convert the neglect of a legal duty to something less. We therefore believe that we must comply with our own ethical obligations to sanction lawyers who neglect their legal and professional duty. We have already notified the public defenders in this district that any such neglect of duty will give rise to sanctions by this court where the neglect is the failure to comply with a directive of this court, thus resulting in a dismissal of the appeal, or where we deem it appropriate, we will forward copies of the petition to the proper grievance committee of The Florida Bar for whatever action is deemed warranted by that committee under the circumstances of each case. We cannot condone admitted violations of the Code of Professional Responsibility nor will we do so, and we take this means to notify the lawyers who appear before this court of our intentions.

We hereby certify to the Supreme Court of Florida the following questions which we deem of great public importance:

A. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON, - U.S. --, 102 S.Ct. 445, 72 L.Ed.2d 509 (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PUBLICLY APPOINTED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?
B. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON, - U.S. --, 102 S.Ct. 445, 72 L.Ed.2d 509 (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PRIVATELY RETAINED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?

The petition for rehearing is DENIED. QUESTIONS CERTIFIED.

DAUKSCH, C. J., and COBB, J., concur.

      . Hollingshead v. Wainwright, 384 U.S. 31, 86 S.Ct. 1284, 16 L.Ed.2d 333 (1966).

      . This was apparently a more acceptable procedure than outright dismissal of the charges. Prior to Hollingshead, the frustration of the right to appeal by a state functionary resulted in dismissal of the charges when a petition for writ of habeas corpus was granted. Hooper v. Wainwright, 168 So.2d 769 (Fla. 2d DCA 1964), complying with State ex rel. Ervin v. Smith, 160 So.2d 518 (Fla.1964).

      .The District Courts of Appeal have routinely granted such habeas corpus relief where the facts readily show entitlement thereto. See, e.g., Daniel v. Wainwright, 237 So.2d 832 (Fla. 2d DCA 1970); State exrel Arnold v. State, 233 So.2d 173 (Fla. 3d DCA 1970). Other cases have recognized the right, although denying the petition for relief based on the particular facts of the case. See, e.g., Johnson v. State, 390 So.2d 1234 (Fla. 5th DCA 1980); Willis v. Wainwright, 375 So.2d 3 (Fla. 4th DCA 1979); see also Pressley v. Wainwright, 367 So.2d 222 (Fla.1979) (England, J., dissenting); cf. Mercer v. Wainwright, 376 So.2d 377 (Fla.1979) (Adkins, J., dissenting).

      . “In both Burton [v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45] and Moose Lodge [v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 31 L.Ed.2d 627], the question was whether ‘State action’ was present. In this case, the question is whether a public defender — who is concededly an employee of the county — acted ‘under color of state law’ in her representation of Russell Dodson. Although this court has sometimes treated the questions as if they were identical, ... we need not consider their relationship in order to decide this case.” 102 S.Ct. 445 at 451, n.12.


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    Steven VIARS, Appellant, v. STATE of Florida, Appellee.
    No. AK-161.
    District Court of Appeal of Florida, First District.
    June 4, 1982.
    Steven Viars, pro se.
    No appearance for appellee.
   MILLS, Judge.

Viars appeals denial of his petition for post-conviction relief. We reverse and remand.

Viars was adjudicated guilty of burglary and sexual battery after a negotiated plea of nolo contendere. His appeal to this court resulted in a per curiam affirmance. Simultaneously with that decision, this court issued its opinion in Green v. State, 406 So.2d 1148 (Fla. 1st DCA 1981).

In Green, this court ruled that a defendant did not understand a guilty plea or its consequences if not advised of the possibility of one-third retained jurisdiction. The case was remanded so that Green could withdraw his plea or the retention of jurisdiction be struck. In Viars’ case, jurisdiction was retained over the first one-third of the sentence. He contends that he was never advised of the possibility of retained jurisdiction.

A failure to understand the consequences of a plea is an appropriate ground for post-conviction relief pursuant to Rule of Criminal Procedure 3.850. The decision in Green requires reversal so that the trial court may determine if Viars was advised of the possibility of retained jurisdiction and, if not, for further proceedings as spelled out in Green. If Viars was properly informed, the denial of relief should be accompanied by portions of the record indicating this.

The decision in Green is under review by the Florida Supreme Court. The mandate in this case shall be withheld until the time for seeking review in the Supreme Court expires and the disposition of review, if sought.

McCORD and SHIVERS, JJ., concur.


author: PER CURIAM.

text:
    Carlos FORD, Petitioner, v. Louis L. WAINWRIGHT, Respondent.
    No. AH-382.
    District Court of Appeal of Florida, First District.
    June 4, 1982.
    Rehearing Denied July 6, 1982.
    Beverly J. Hill, Fla. Institutional Legal Services, Gainesville, for petitioner.
    David P. Gauldin, Asst. Atty. Gen., Tallahassee, for respondent.
   ON MOTION FOR REHEARING ON DENIED PETITION FOR WRIT OF HA-BEAS CORPUS FOR BELATED APPEAL

PER CURIAM.

Petitioner seeks a writ of habeas corpus for a belated appeal, pursuant to Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967), cert. denied, 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882 (1968). He alleges that his family and friends retained private counsel to represent him at the sentencing and appeal stages of his criminal conviction, and that his retained attorney failed to file a notice of appeal, yet informed petitioner that the judge had denied his appeal. He claims he is now indigent for purposes of having counsel appointed to represent him on appeal. Respondent answered our show cause order, saying that the retained attorney denied having been requested to file an appeal for petitioner. Respondent asked that the case be remanded to the trial court so that it may conduct an evidentiary hearing to resolve the fact dispute. However, we denied the petition on the basis that one cannot be deprived of his right to appeal by state action, as required by Hoffingshead, supra, when he was represented by privately retained counsel.

Upon reviewing our decision pursuant to this motion for rehearing, we withdraw our denial of the petition and remand the case to the trial court for an evidentiary hearing on the above-mentioned fact dispute.

Failure to file an appeal of a criminal conviction, when timely requested by a client, constitutes ineffective assistance of counsel. See Rule 9.140(b)(3), Fla.R.App.P., (requiring counsel to either file a motion to withdraw or file a notice of appeal, prior to withdrawal from representation of a client). The United States Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), held that for purposes of seeking relief pursuant to a claim of ineffective assistance of counsel, there is no difference between court appointed and privately retained counsel. Relying on Cuyler, supra, to recognize the right to seek collateral relief based on ineffective assistance of counsel, our chief judge, speaking for the court in Spencer v. State, 389 So.2d 652, 653 (Fla. 1st DCA 1980), said, “... [T]he United States Supreme Court squarely held that a criminal prosecution is itself sufficient state action to engage the constitutional right to counsel, and that, when a question of ineffective assistance of counsel is presented, there is no distinction between state-provided and retained counsel.” See also, Vagner v. Wainwright, 398 So.2d 448 (Fla.1981); Edwards v. State, 393 So.2d 597 (Fla. 3rd DCA 1981); Kniebes v. State, 391 So.2d 743, 744 (Fla. 4th DCA 1980); Blatch v. State, 389 So.2d 669 (Fla. 3rd DCA 1980); Presley v. State, 388 So.2d 1385 (Fla. 2nd DCA 1980); Battle v. State, 388 So.2d 1323 (Fla. 5th DCA 1980); Chambers v. State, 388 So.2d 1259 (Fla. 2nd DCA 1980); and State v. Dukes, 388 So.2d 651 (Fla. 2nd DCA 1980).

While the above-cited cases apply to collateral attacks on a conviction which, if found to be meritorious, require conducting a new trial, we find that a showing of ineffective assistance of counsel that results in denial of one’s right to appeal, mandates the granting of a belated appeal. Perez v. Wainwright, 594 F.2d 159 (5th Cir. 1979), vacated and remanded, 447 U.S. 932, 100 S.Ct. 3032, 65 L.Ed.2d 1127 (1980), on remand, 627 F.2d 762 (5th Cir. 1980), on rehearing, 640 F.2d 596, 598 (5th Cir. 1981) (holding that when a lawyer, be he privately retained or court appointed, does not perform his promise to his client that an appeal will be taken, the client is entitled to a belated appeal). See also, Torna v. Wainwright, 649 F.2d 290 (5th Cir. 1981), U. S. appeal pending.

We therefore appoint the Honorable John Crews, Circuit Judge for the Eighth Judicial Circuit, to conduct an evidentiary hearing to determine whether counsel’s failure to file an appeal of petitioner’s criminal conviction constitutes ineffective assistance of counsel depriving petitioner of his fundamental right to appeal. If the determination is affirmative, the fact finder should then determine whether petitioner is indigent for purposes of appointing a public defender to represent him on appeal.

ROBERT P. SMITH, Jr., C. J., and McCORD and BOOTH, JJ., concur.


text:
    Elise Delano BIGGS, Appellant, v. Franklin B. BIGGS, Appellee.
    No. AG-124.
    District Court of Appeal of Florida, First District.
    June 8, 1982.
    Rehearing Denied July 6, 1982.
    Mary M. Callaway, Pensacola, for appellant.
    Walter J. Smith of Smith, Grimsley, Remington, Kessler & Simpson, Fort Walton, for appellee.
   PER CURIAM.

In this appeal from a judgment in a marital dissolution, we affirm all issues raised, both as to alleged errors inhering in the judgment and in certain post-judgment orders. Our affirmance of the order directing appellee to vacate certain restrictive covenants encumbering real property that ap-pellee conveyed to appellant is without prejudice, however, to appellant’s applying to the trial court for the relief that she initially sought before this court.

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and ERVIN and SHAW, JJ., concur.


text:
    Barrie MOEN, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-141.
    District Court of Appeal of Florida, First District.
    June 8, 1982.
    Barrie Moen, pro se.
    Catherine L. Dickson, Asst. Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

Appellee’s Motion to Dismiss is denied. The action of the Florida Parole and Probation Commission is affirmed.

MILLS and SHIVERS, JJ., and CAW-THON, Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Jeffrey DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 80-1387.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.

      Richard L. Jorandby, Public Defender, Edward W. Lowery, Legal Asst., and Tatja-na Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was charged initially with attempted armed robbery with a firearm. The information was amended to charge attempted robbery with a deadly weapon, deleting the allegation of a firearm. After pleading guilty, appellant was placed on probation for ten years. Thereafter, his probation was revoked, and the court sentenced appellant to fifteen years in prison, retaining jurisdiction over the first one-third of the sentence, pursuant to Section 947.16(3)(a), Florida Statutes (1979). From that sentence appellant perfected this appeal.

We have considered appellant’s several points on appeal and find that only one of them has merit, i.e., the trial court erred in retaining jurisdiction over the first one-third of the sentence.

The thrust of the attack upon the retention of jurisdiction is that the statute in question, Section 947.16(3), Florida Statutes (1979), was not passed until after the criminal episode for which appellant was sentenced occurred. The statute attaches disadvantageous sentencing consequences in the form of the trial court’s retention of jurisdiction to veto a prisoner’s parole, etc. Therefore, the application of the statute to the crime in this case would constitute an ex post facto application condemned in State v. Williams, 397 So.2d 663 (Fla.1981); Wilson v. State, 414 So.2d 512 (Fla.1982); Williams v. State, 414 So.2d 509 (Fla.1982).

Accordingly, we affirm the sentence appealed from in all respects except as to the retention of jurisdiction over the first one-third of the sentence. That aspect of the sentence is vacated.

AFFIRMED AS MODIFIED.

HURLEY and DELL, JJ., concur.


author: ANSTEAD, Judge.

text:
    Robert W. ROWE, Appellant, v. Richard P. WILLE, as Sheriff of Palm Beach County, Appellee. Robert W. ROWE, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-1580, 80-1794.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Rehearing Denied July 2, 1982.

      Claire D. Dryfuss, Asst. Gen. Counsel, Dept, of Health and Rehabilitative Services, Tallahassee, and Frank A. Kreidler, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

Appellant, Robert W. Rowe, appeals an order adjudging him guilty of contempt. We reverse.

Rowe is a district intake supervisor for the Youth Services Office of the Department of Health and Rehabilitative Services in Delray Beach, Florida. On August 26, 1980, he was served with an order to show cause why he should not be held in contempt of court for his alleged failure to enforce the conditions of probation of two youths previously placed in a community control program supervised by the Youth Services Office. Specifically, the order required Rowe to explain why the youths had failed to make court-ordered restitution before their nineteenth birthdays at which time juvenile court jurisdiction over the youths automatically terminated. After a hearing Rowe was adjudicated guilty, ordered to pay a fine of twice the amount the youths had failed to pay in restitution, and sentenced to serve 24 hours in jail. On appeal Rowe contends that the trial court was without jurisdiction to hold him in contempt and that, assuming jurisdiction, the evidence was insufficient to support his conviction.

Chapter 39.13, Florida Statutes (1977), states:

The court may punish for contempt any person interfering with the administration of or violating any provision of this chapter [the Florida Juvenile Justice Act] or order of the court relative thereto.

Chapter 959.021, Florida Statutes (1977), mandates that HRS “shall be responsible for the implementation of law and policy relating to youth services ... . ” Chapter 39.11(l)(a)(l) provides that “Community control programs for children shall be supervised by the department [HRS] or by any other person or agency specifically authorized by the court.” Clearly, under this statutory scheme and the terms of the court’s orders, it was Rowe’s duty to implement the orders placing the two youths on probation and to see that the conditions, including restitution, were carried out. That being the case, we believe the court possessed the power to cite him for contempt for wilful failure to carry out the court’s orders.

Since the trial court indicated that the alleged contemptuous conduct occurred outside its presence, the charge against appellant may be properly characterized as indirect criminal contempt. Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977). In such instances there must be proof of intent to disobey the court and, as in all criminal cases, the defendant will be presumed innocent until proven guilty beyond a reasonable doubt. Florida Ventilated Awning Co. v. Dickson, 67 So.2d 218 (Fla.1953); Department of Rehabilitation Services v. State, 338 So.2d 220 (Fla. 4th DCA 1976). There must be evidence that the defendant intended to violate the court’s command, or that he was guilty of such gross dereliction that the intent will be presumed. See Brugh v. Savings and Profit Sharing Fund, 205 So.2d 322 (Fla. 1st DCA 1967). We cannot find such proof in this record.

Rowe acknowledged responsibility for supervising the program and admitted that restitution was not made. The record also reflects that Rowe was aware that the court had ordered restitution by the youths. The state relies specifically on Rowe’s failure to file petitions of violation of the conditions of probation as proof of his contemptuous intent. Section 39.11(l)(a)(2), Florida Statutes (1979), states:

Should the conditions of the program be violated, the agent supervising his community control program or the state attorney may bring the child before the court on a petition alleging a violation of the program.

The state contends that such language imposes a mandatory requirement on the juveniles’ supervisor to bring the juveniles back to court and that failure to do so constitutes evidence of wilful disobedience of the court’s orders. We cannot agree. Section 39.11(l)(a)(2) must be read in conjunction with Florida Rule of Juvenile Procedure 8.210(a), which also contains the word “may” instead of “shall” in speaking to the supervisor’s authority to bring the juvenile back to court. Both provisions indicate that some discretion is involved in the decision to prosecute violators.

The gist of the evidence presented at trial was that Rowe and his staff had for a variety of reasons, including inefficient and inadequate internal procedures as well as overwork, failed to see that the court’s order in these and other cases had been carried out. This proof might well sustain a finding that Rowe was guilty of neglect but we do not believe it is sufficient to sustain a finding of wilful disobedience.

In addition, there is no evidence that the court had put Rowe on notice of similar problems or warned him of the consequences of the failure of his office to provide adequate supervision before the violation involved herein occurred. Such a notice or warning may be unnecessary before an employer may discipline an employee for neglect of duty. However, implicit in any scheme involving the imposition of criminal sanctions is reasonable notice to the accused of the conduct that will result in the imposition of sanctions. While express notice may be unnecessary in cases of obvious wilful misconduct, its presence in instances such as involved herein may be crucial.

Accordingly, for the reasons set out above the judgment and sentence of the trial court are reversed.

DOWNEY and DELL, JJ., concur.


text:
    COMMERCIAL UNION INSURANCE COMPANY, Appellant, v. Susan RIFKIN, Appellee.
    No. 81-173.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, and Whittaker, Pyle, Stump & Webster, Orlando, for appellant.
    Vincent A. Lloyd of Lloyd & Brown, Fort Pierce, for appellee.
    Jim Smith, Atty. Gen., and Gerald B. Curington, Asst. Atty. Gen., and Pat Maro-ney, State Treasurer’s Office, Tallahassee, for intervenor/amicus — State of Florida.
    Larry Klein, West Palm Beach, for ami-cus curiae — The Academy of Florida Trial Lawyers.
   PER CURIAM.

The trial court here held that Sections 627.736(1) and 627.737(1) and (2) of the Florida Statutes (1979) are unconstitutional because they violate the “right to redress” clause of Article I, Section 21 of the Florida Constitution.

On the authority of Chapman v. Dillon, 415 So.2d 12 (Fla.1982), we reverse.

This cause is remanded for proceedings not inconsistent herewith.

REVERSED AND REMANDED.

LETTS, C. J., and ANSTEAD and BER-ANEK, JJ., concur.


author: WALDEN, Judge.

text:
    STATE of Florida, Appellant, v. James Riley DAVIS, Appellee.
    No. 81-340.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Frank B. Kessler of Zwickel, Gross & Kessler, Lake Worth, for appellee.
   WALDEN, Judge.

The State challenges the correctness of a trial court order granting Defendant’s two motions to suppress marijuana and cocaine which had been seized by police officers. We reverse.

Case No. 5584

Two undercover officers in an unmarked car were approached by defendant, Davis, on a bicycle. Defendant was holding a brown paper bag. Defendant asked the officers what they wanted. The officers, based on their experience, understood this to mean that defendant wanted to know what drugs they wanted to buy. At that point defendant recognized one of the officers as a narcotics agent who had previously bought drugs from defendant and who had previously arrested defendant. Defendant began to flee. During the pursuit defendant abandoned the bicycle, dropped the paper bag, and continued on foot. One officer picked up the bag while the other continued to chase defendant. Upon feeling the brown paper bag the officer felt packets similar to nickel bags of marijuana. The officer then reached inside and, sure enough, there were 18 nickel bags of marijuana, which bags normally sell for $5.00 each.

Defendant was finally caught and taken for booking. At that point the officer observed the defendant reach into his back pocket, then place something in his mouth, and began chewing. The officer removed from defendant’s mouth a small glassine zip-lock bag with a white substance in it that was consistent with the appearance of cocaine and which upon field test proved to be cocaine. It was seized.

As to the marijuana in the paper bag, we hold under the facts that defendant clearly abandoned it in a way and area where he had no reasonable expectation of privacy and, hence, cannot claim a Fourth Amendment violation of his rights. State v. Nittolo, 317 So.2d 748 (Fla.1975); State v. Oliver, 368 So.2d 1331 (Fla.3d DCA 1979) cert. dismissed 383 So.2d 1200 (Fla.1980); and State v. Schultz, 388 So.2d 1326 (Fla.4th DCA 1980); Riley v. State, 266 So.2d 173 (Fla. 4th DCA 1972); Patmore v. State, 383 So.2d 309 (Fla. 2d DCA 1980); State v. Milligan, 411 So.2d 946 (Fla. 4th DCA 1982).

Defendant argues there was a failure on the part of the State to prove the identity of defendant at the suppression hearing as being the individual the officers encountered. Anderson v. State, 92 Fla. 477, 110 So. 250 (1926). Anderson stands for the proposition that a person charged must be identified in order for that person to be “convicted”. We agree. However, we are not aware of any requirement that a defendant must be positively identified at a suppression hearing and no authority to that effect has been furnished. Instead the critical issue at a hearing on a motion to suppress is whether the search and seizure was lawful, that is, whether Fourth Amendment rights were violated.

Defendant relies upon Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978) as being a similar situation where officers impermis-sibly searched a paper bag. We disagree as to the applicability of Ingram because of the difference in facts. In Ingram officers observed that defendant was carrying a paper bag, stopping people in the street and having them look into the bag. Officers confronted Ingram and while one officer held him by the belt the officer asked for the bag, looked inside and found a gun. Without reviewing the criteria discussed in Ingram, we note that it did not encompass the distinguishing action of abandonment of the bag and the loss of a reasonable expectation of privacy. In sum, the Ingram case has no application.

As to the cocaine taken from defendant’s mouth, the defendant does not contest the State’s assertions and authorities as to the propriety of that seizure. We decide that the trial court erred in suppressing the cocaine since it was seized incident to a lawful arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (Fla.1973); and United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).

Case No. 80-5120

Defendant was a passenger in a car lawfully stopped. Marijuana was seized from the interior of the car. We hold that defendant lacked standing to object to the search and seizure. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). See also Inchaustegui v. State, 392 So.2d 319 (Fla. 4th DCA 1980), pet. for review denied, 402 So.2d 610 (Fla.1981); and State v. Muzevsky, 388 So.2d 21 (Fla. 4th DCA 1980); State v. Adamosky, 407 So.2d 983 (Fla. 4th DCA 1981); Kayes v. State, 409 So.2d 1075 (Fla. 2d DCA 1981); State v. Hutchinson, 404 So.2d 361 (Fla. 2d DCA 1981); Norman v. State, 388 So.2d 613 (Fla. 3d DCA 1980).

Reversed and Remanded.

LETTS, C. J., and BERANEK, J., concur.


author: BERANEK, Judge. ANSTEAD, Judge,

text:
    DOCTOR’S HOSPITAL OF HOLLYWOOD, INC., Appellant, v. Hunter W. MADISON and Minnie W. Madison, his wife, Appellees.
    No. 81-472.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.

      Mottlau & Wakefield, P. A., and Mark Hicks of Daniels & Hicks, Miami, for appellant.
    Rubin & Rubinchik, Hollywood, and Larry Klein, West Palm Beach, for appellees.
   BERANEK, Judge.

This appeal concerns the denial of a motion to vacate a default. Appellant contends that it has demonstrated excusable neglect and a meritorious defense. It is the duty of the trial court to make the determination of whether or not the facts constitute excusable neglect. A trial court is vested with broad discretionary powers in this regard, and in order to reverse a court’s ruling, there must be a showing of a gross abuse of discretion. Schwab & Company, Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978); North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962).

In the landmark decision of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), our Supreme Court issued guidelines for review of a judge’s discretionary power. The court stated, “If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.” In light of this definition of review, we find that the trial court did not abuse its discretion, grossly or otherwise. Having reached this conclusion on the issue of excusable neglect, we need not reach the issue of a meritorious defense.

AFFIRMED.

WALDEN, J., concurs.

ANSTEAD, J., specially concurs with opinion.

ANSTEAD, Judge,

specially concurring:

I agree that the trial court’s order should be affirmed. My views are in substantial accord with the contentions advanced by the appellees in their brief:

The summons and complaint were received by the defendant on April 3, 1980. Defendant’s affidavit signed by the hospital administrator said that he was not a lawyer, that he mistakenly assumed that this summons and complaint were nothing more than subsequent filings in medical mediation, and therefore the summons and complaint were not answered or forwarded for answer. That excuse is almost identical to the excuse alleged in Schwab & Co., Inc. v. Breezy Bay, supra, wherein the company employee who received the suit papers thought there was nothing urgent and they could wait until his boss’s return. That explanation was held insufficient to set aside a default judgment. In the present case, the time sequence demonstrates an utter disregard for the rules of practice and procedure. Plaintiff’s counsel waited almost six months before moving for default, on August 27, 1980. On October 10, 1980, default was entered. Prior to entry of the default on August 10th, the other defendant in this case, the physician, served a crossclaim on the hospital on October 7th, 1980.
On October 16th, 1980, the trial court entered an order providing for trial against the hospital on damages only, and a copy of this order was sent to the hospital.

On November 14, 1980, the hospital’s counsel filed a notice of appearance.

It was not until January 15, 1981, that the hospital filed a motion to set aside the default. This was three months after the hospital had been served with the cross-claim by the doctor, and almost 10 months after the hospital had been served with suit papers.

If this constitutes excusable neglect, then whenever a defendant is sued and says that he thought the suit papers did not have to be answered, it will constitute excusable neglect. The law is of course to the contrary. In all of the cases relied on by the defendant, the suit papers were lost or misplaced. In the present case the hospital administrator simply decided these papers did not have to be answered, and even after being served with a counterclaim in the lawsuit in early October of 1980, no motion was ever filed to set aside the default judgment until January 15, 1981.

CONCLUSION

It was within the discretion of the trial court to determine whether this was excusable neglect or gross neglect and the trial court determined it was the latter. No abuse of discretion has been demonstrated. The order of the trial court should therefore be affirmed. (Record citations omitted.)


text:
    Thomas R. SCHNEIDER and Patty J. Schneider, his wife, Appellants, v. Mary MURPHY, Appellee.
    No. 81-485.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Rehearing Denied July 2, 1982.
    Marjorie Gadarian Graham of Jones & Foster, P. A., West Palm Beach, for appellants.
    Marie S. Hotaling, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed with directions that appellee’s complaint for specific performance be denied and that judgment thereon be entered in favor of appellants. The appellee sought to have the court specifically direct the appellants to convey to her alone a parcel of real property which the appellants had agreed to convey to appellee and another as tenants in common. No proof was submitted at trial to establish appellee’s right to have the property conveyed to her alone. On remand the trial court is also directed to reinstate its prior orders establishing appel-lee’s entitlement to payment under Count II of her complaint.

ANSTEAD and BERANEK, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    Scott SCHLEY and Frances Schley, his wife, Appellants, v. PALM BEACH MARTIN COUNTY MEDICAL CENTER, INC., a Florida corporation, D. Barry Lotman and Synthes, Ltd., Appellees.
    No. 81-579.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.

      Evan I. Fetterman of Law Offices of Evan I. Fetterman & Associates, North Palm Beach, for appellants.
    Roy R. Watson of Adams, Coogler, Watson & Smith, P.A., West Palm Beach, for appellee Palm Beach Martin County Medical Center, Inc.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellee D. Barry Lotman, M.D.
   ANSTEAD, Judge.

This is an appeal from a final summary judgment entered in favor of appellees, a physician and a hospital, on the claim of appellant, Scott Schley, that the appellees negligently caused a portion of a drill bit to break off and remain deposited in appellant’s ankle. At oral argument the appellants conceded the correctness of the summary judgment as to the appellee, Palm Beach Martin County Medical Center, Inc., and we affirm that judgment. However, we reverse the summary judgment on the claim against the appellee, D. Barry Lot-man.

The appellant alleged that Dr. Lotman used the drill bit in an improper fashion during a surgical procedure to reduce appellant’s fractured ankle. In support of his motion for summary judgment Dr. Lotman submitted the affidavit of a physician who expressed an opinion therein that Dr. Lot-man’s “reduction and fixation” of appellant’s fractured ankle was within acceptable medical standards, and that appellant’s present complaints of pain in the ankle were caused by the fracture and the presence of a wire device used to secure the fracture rather than by the drill bit. This physician offered no opinion as to whether the drill bit broke from improper use or some other cause. In sworn answers to interrogatories Dr. Lotman stated that he did not know why the drill bit broke. In those answers he also stated that the healing of appellant’s injury was delayed because of prolonged surgery time. The prolonged surgery time referred to was apparently the extra time consumed in unsuccessfully attempting to retrieve the broken drill bit, and in switching to an alternative means of fixation after the drill bit broke and attempts to utilize a screw to secure the fracture were abandoned.

To secure a summary judgment Dr. Lot-man had the burden of proving the absence of a genuine issue of material fact as to the appellants’ claim of malpractice. Holl v. Talcott, 191 So.2d 40 (Fla.1966). In this case that meant Dr. Lotman had to demonstrate that there was no issue as to whether the drill bit broke as a result of his improper use of the drill. In our view he failed to sustain that burden. There is no affirmative evidence in the record as to the cause of the failure of the drill bit. The lack of evidence on this issue does not establish the absence of a genuine issue as to Dr. Lot-man’s responsibility. Rather, it leaves the issue unresolved.

Dr. Lotman also contends that he was entitled to a summary judgment because the other physician’s affidavit established that the appellant’s present complaints were unrelated to the presence of the drill bit. However, in our view the presence of the drill bit in Mr. Schley’s ankle combined with the admitted complications that resulted from the drill bit breaking preclude a resolution of the case on that basis.

Accordingly, for the reasons set out above the judgment in favor of appellee, D. Barry Lotman, is hereby reversed and the judgment in favor of appellee, Palm Beach Martin County Medical Center, Inc., is hereby affirmed.

HURLEY and DELL, JJ., concur.

      . Although not cited by any of the parties we note that Section 768.45(4), Florida Statutes (1977) provides that the presence in the body of surgical tools or any paraphernalia commonly used in surgical procedures shall be prima facie evidence of negligence on the part of the physician.


text:
    H. Jerry JARZEM a/k/a Jerry Jay, Appellant, v. Wilma R. BIERHAUS, a/k/a Wilma R. Bierhaus Jarzem, Appellee.
    No. 81-630.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Rehearing Denied July 9, 1982.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for appellant.
    Shelby D. Wallis, Pompano Beach, for appellee.
   DOWNEY, Judge.

Appellant, H. Jerry Jarzem, seeks reversal of a final judgment of dissolution of marriage, which awarded certain property to the wife.

The husband, an impecunious 65 year old dancing instructor, married the wife, a 75 year old wealthy widow, in April, 1979. The parties met when the wife undertook dancing lessons at the husband’s studio. Thereafter, they saw each other socially for a period of several years, during which time the husband discussed his insecure financial situation with the wife. When they decided to get married the wife gave him a home she owned in Boca Raton so that he would feel more secure. During this premarital period the husband advised her that he was impotent and unable to engage in sexual intercourse. She testified that, regardless of this disclosure, she was willing to enter into the marriage. The wife further testified that, while they never did have any sexual relations, she had a happy marriage and that he was always very pleasant and affectionate toward her. Apparently, the wife would have had no real complaint had she not learned in November, 1979, that the husband was engaging in sexual relations with another woman at the dance studio. Although the husband denied it, the manager of the studio testified that she saw the husband actually engaging in sexual intercourse with one of the studio’s patrons. That blew it, as they say, with the wife and she proceeded to institute this dissolution proceeding.

As indicated above, the wife conveyed the home in Boca Raton to the husband immediately prior to the marriage on April 19, 1979. During the ensuing month the husband prevailed upon the wife to convey to him an undivided one-half interest in the condominium in which they were residing. She also promised to, and did, give him $100,000 for his studio business and for some reason gave him a sixty-day note to evidence her promise. The other substantial property given to the husband was approximately 900 shares of stock in several corporations. The shares were delivered to him unendorsed; however, the wife signed a separate paper to acknowledge that she was transferring the shares to the husband. At trial the wife testified that she had no intention of making a gift of this stock to him, and the shares were furnished to him for loan collateral purposes only.

On the same day that the deed to the undivided one-half interest in the condominium and the $100,000 note were executed, the parties signed a post nuptial agreement authorizing each of them to dispose of his separate properties as if he were unmarried and agreeing that, upon termination of the marriage, neither party should have any claim on the property of the other.

The final judgment found that the marriage

“was in fact not a marriage under the laws of the state, either in fact or spirit, having been, on the one hand, never consummated by cohabitation, and on the other hand, conceived, designed and initiated by the Respondent, not because of any deep-rooted love or abiding affection for the Petitioner, but obviously to perpetrate a fraud upon the Petitioner. With no intention of ever performing any of the marital duties incumbent upon him, Respondent secured in his own name certain real property of the Petitioner and other tangible assets of considerable value belonging to Petitioner. Further, Respondent obtained the security of Petitioner’s steady and unending income together with all the comforts of home without any expense to Respondent.”

Furthermore, the court specifically found the husband fraudulently induced the wife to convey the Boca Raton home to him prior to the marriage. As regards the condominium, that was conveyed to both husband and wife simply to create an estate by the entir-eties, the court decided. Additionally, the trial judge found the husband induced the wife to give possession of the unendorsed stock certificates to him, but that she did not intend to make a gift of the certificates.

As a result of these findings the trial court held the conveyance of the Boca Ra-ton home null and void and directed the husband to convey it to the wife. The wife was given the husband’s one-half interest in the condominium as a special equity and the husband was ordered to return the stock certificates she had delivered to him, together with the promissory note for $100,-000. The husband was allowed to keep the $100,000, which the wife had given to him for his business.

Appellant presents four points on appeal, of which only two have sufficient merit to warrant discussion. The first and main point attacks the finding that the husband was guilty of fraud in entering into the marriage and the court’s action in awarding the various properties to the wife.

As to this first point, we believe the record supports the trial judge’s findings of fact and conclusions of law. We recognize that, if the wife’s claim for annulment or divorce had been based upon the fact that the husband was impotent, it would have been unavailing if she had knowledge of such a fact before the marriage. However, we have an entirely different scenario in this case. Here, we have a situation in which a wealthy widow becomes interested in a man ten years her junior. After she has acquired this interest and they begin to consider marriage he advises her that he is impotent and is unable to engage in sexual intercourse. At this point in their relationship, all things considered, she is willing to marry him anyway for loving affection and companionship. However, he wants to marry her only to acquire some of her property and feather his nest. He does not want to fulfill one of the obligations of marriage by having sexual relations with her. So he deludes her into believing that he is incapable of intercourse but loves her enough to marry her anyway. Surely this woman would not have married him had she known that he simply wanted to marry her for her money without fulfilling all of the obligations of the marital state. The trial judge found that this entire charade constituted a fraud upon the wife, which infected all of the property transfers and justified the court in returning the various properties to the wife. See, Cooper v. Cooper, 120 Fla. 607, 163 So. 35 (1935); Stone v. Stone, 159 Fla. 624, 32 So.2d 278 (1947).

In appellant’s second point it is contended that the trial court erred in refusing to grant a continuance of the trial after having granted the petition of Alfred and Maxine Borah to intervene just a few days prior to the trial date. It appears that the husband contracted to sell the Boca Raton real estate to the Borahs. Thus, just prior to trial, the trial court granted their petition to intervene. Whereupon, the husband moved to continue the trial, alleging the case was not at issue because the Borahs had not filed any pleadings as of the trial date. The continuance was denied. The Borahs were given notice of the trial, but did not appear and participate. Although the final judgment nullifies their contract, the Borahs have not seen fit to attack that action on appeal. Under these circumstances, we doubt that the husband has standing to complain of the denial of the motion for continuance, since denial of that motion could only adversely affect the Borahs. See, King v. Brown, 55 So.2d 187 (Fla.1954); In re Estate of Rose, 165 So.2d 226 (Fla. 3d DCA 1964).

In view of the foregoing, the judgment appealed from is affirmed.

AFFIRMED.

ANSTEAD and DELL, JJ., concur.

      . This case is reminiscent of other cases where lonely widows of advanced age were taken in by dancing instructors. See, e.g., Clark v. Roberto’s, Inc., 320 So.2d 870 (Fla. 4th DCA 1975); Michael's Sch. of Dance, L & C, Inc. v. Broward Nat. Bank, 320 So.2d 413 (Fla. 4th DCA 1975); Vokes v. Arthur Murray, Inc., 212 So.2d 906 (Fla. 2d DCA 1968).


text:
    Samuel SLOBAN and Betty Sloban, Appellants, v. McKESSON & ROBBINS DRUG COMPANY, a division of Foremost-McKesson, Inc., a corporation, Appellee.
    No. 81-713.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.

      Thomas C. Johnson of Dunn & Johnson, P. A., Miami, for appellants.
    Kenneth W. Wright, Orlando, for appel-lee.
   PER CURIAM.

Reversed on the authority of Robert B. Ehmann, Inc. v. Bergh, 363 So.2d 613 (Fla. 1st DCA 1978), and remanded to give appellants an opportunity to file written defenses to the allegations of the order to show cause. On remand all parties may present additional evidence and the appellee shall also be entitled to rely upon the previously presented evidence.

REVERSED AND REMANDED.

ANSTEAD, BERANEK and HURLEY, JJ., concur.


text:
    Robert B. VORSE, Appellant, v. AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA, Appellee.
    No. 81-822.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Richard H. Gaunt, Jr., West Palm Beach, for appellant.
    William Lance Gerlin of Helliwell, Mel-rose & DeWolf, Miami, for appellee.
   PER CURIAM.

At issue is whether a post-judgment order denying attorney’s fees to a plaintiff who recovered a judgment against an insurance company as a second beneficiary of a credit life insurance policy is inconsistent with that judgment and should be reversed. We hold that it is.

Appellee chose not to appeal the final judgment entered in behalf of appellant and it is superfluous to comment upon the correctness of the court’s earlier decision. The judgment having been entered, section 627.428(1), Florida Statutes (1979), compels the award of an attorney’s fee.

Accordingly, we reverse and remand with directions to determine the amount of attorney’s fees to which appellant is entitled.

LETTS, C. J., and BERANEK and GLICKSTEIN, JJ., concur.


author: HERSEY, Judge.

text:
    Charles KING, Appellant, v. The CITY OF LAUDERHILL, a municipal corporation, Walter E. Ramsdell, an individual, George Slinkman, an individual and Orin Korte, an individual, individually, jointly and severally, Appellees.
    No. 81-1107.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Rehearing Denied July 1, 1982.

      Charles T. Whitelock of Feinstein & Whitelock, Fort Lauderdale, for appellant.
    Anthony J. Titone of Titone & Roarke, P. A., Lauderhill, for appellees-City of Lauder-hill and Walter E. Ramsdell.
   HERSEY, Judge.

Appellant, King, having been discharged for disobeying a direct order of his superior officer, sought mandamus to require his reinstatement as a police officer or to provide a hearing before the Police Complaint Review Board. We affirm the order on the authority of Migliore v. The City of Lauderhill, - So.2d - (Fla. 4th DCA Case No. 81—1491, opinion filed June 2, 1982).

AFFIRMED.

WALDEN, J., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


text:
    Tamatha WOODARD, a minor, by and through her next friend, natural guardian and parent, Donald Ray Woodard; and Donald Ray Woodard, individually, Appellants, v. GENERAL MOTORS CORPORATION, a foreign corporation, Roger Dean Chevrolet, Inc., Courtesy Auto Sales, Inc., a Florida corporation, United States Fire Insurance Co., and Patricia Woodard, Appellees.
    No. 81-1166.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellants.
    Marjorie Gadarian Graham of Jones & Foster, P. A., West Palm Beach, for appel-lees.
   PER CURIAM.

The appellant, Tamatha Woodard, a minor, sued General Motors Corporation and others for injuries she sustained when she was thrown into an exposed gear shift lever in an automobile accident. The trial court granted a summary judgment in favor of General Motors.

Our review of the record convinces us that Dr. Robert Brenner’s deposition implicates General Motors in genuine issues of material fact regarding fault and proximate cause.

Accordingly, the cause was not ripe for summary judgment and the judgment appealed from must be reversed.

REVERSED AND REMANDED.

DOWNEY, HURLEY and DELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. Loretta SHAW, Appellee.
    No. 81-1336.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellee.
   ANSTEAD, Judge.

Appellee Loretta Shaw was charged by information with the delivery of methaqua-lone, commonly known as quaaludes, to Detective David Ecklund. At trial the state proved that the methaqualone was actually delivered to Officer Robert Gren. Alleging that the variance between the offense charged and proved was material, appellee moved for a judgment of acquittal at the conclusion of the state’s case and at the conclusion of her own defense. The latter motion was granted and appellee was discharged.

The state then filed a second information, charging appellee with the delivery of methaqualone to Officer Gren. Appellee filed a motion to dismiss, arguing in essence that she had been placed in jeopardy for the same offense at the first trial and that a second trial would consequently constitute double jeopardy. Appellee’s motion was granted and the state’s appeal followed.

In State v. Katz, 402 So.2d 1184 (Fla.1981) our Supreme Court, in overturning two separate decisions of the Third District Court of Appeal, held that the defendants, who had obtained judgments of acquittal on grounds of material variances as to the time of an alleged grand larceny and the make and year of a vehicle allegedly burglarized, respectively, could still be retried:

Florida’s test for determining whether successive prosecutions impermissibly involved the same offense is based upon the sufficiency of the allegations in the second information with regard to a conviction of the offense charged in the first. If the facts alleged in the second information, taken as true, would have supported a conviction of the offense charged in the prior information, the offenses are the same and the second prosecution is barred. Bizzell v. State, 71 So.2d 735 (Fla.1954). Id. at 1186.

In State v. Beamon, 298 So.2d 376 (Fla.1974), it was held that the defendant, who had obtained a judgment of acquittal at his first trial because the state proved that the alleged offense had occurred two days later than charged in the bill of particulars, was estopped from asserting a double jeopardy defense in a properly-charged retrial based on the same incident. In language which is pertinent here, the court reasoned:

It is the defendant — not the State — who is estopped. The defendant is estopped by virtue of his inconsistent positions in first claiming as a basis for acquittal the materiality of the date and then contending on the new information that the actual, different date of the alleged offense is immaterial now, so that whatever the date of the alleged offense he was acquitted of it in the first trial. He cannot carry water on both shoulders.

298 So.2d 376, at 378. Parallel results had earlier been reached in State v. Bentley, 81 So.2d 750 (Fla.1955) regarding a material variance as to the gender of an animal allegedly stolen, and in State v. Cootner, 60 So.2d 734 (Fla.1952) regarding a material variance as to the ownership of property allegedly burned. See generally Hoffman v. State, 397 So.2d 288 (Fla.1981) and Stang v. State, 403 So.2d 542 (Fla. 4th DCA 1981).

In a similar context, our Supreme Court stated that “[a] material variance between the name (of the murder victim) alleged (in the information) and that proved” (at trial) would be “fatal” to any murder conviction. Raulerson v. State, 358 So.2d 826, at 830 (Fla.1978), cert. denied 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978). See also pp. 12-13 and pp. 219-220 of Florida Standard Jury Instructions in Criminal Cases (1981) (Instruction 2.03 and Instruction on Drug Abuse — Sale, Manufacture, Delivery, or Possession with Intent, Section 893.13(l)(a), Florida Statutes (1981)).

Here, quite clearly, the facts as alleged in the second information — that appellee had delivered methaqualone to Officer Gren— would not have supported a conviction of the offense charged in the first information — that appellee had delivered metha-qualone to Detective Ecklund. Thus, the lower court’s dismissal of the second information was reversible error, and we remand the cause for trial.

The only case which even colorably lends support to appellee’s position is State ex rel. Volkers v. Blount, 336 So.2d 377 (Fla. 1st DCA 1976), cert. denied 341 So.2d 1079 (Fla.1976). In Volkers, defendant was arrested for selling marijuana to a Deputy Grier, but was charged by information with selling marijuana to a confidential informant. At trial, the state proved that defendant had sold the marijuana to Deputy Grier. The trial court granted defendant’s motion for a judgment of acquittal at the conclusion of the state’s case. The state then filed a second information charging defendant with selling marijuana to Deputy Grier. The First District Court of Appeal issued a writ of prohibition as to the attempted retrial. Although the court did find that a retrial would constitute double jeopardy, it appears that its primary motivation in prohibiting a retrial was its conclusion that the material variance had been the product of bad faith by the state and that a second trial would constitute a “gross injustice.” Volkers at 378. Volkers is distinguishable from the present case in that no bad faith is alleged here. In any event, on the double jeopardy issue, we believe that Volkers is contrary to the law as stated in Katz.

For the reasons stated, we reverse the lower court’s dismissal of the second information and remand this cause for trial.

BERANEK, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.


author: BERANEK, Judge.

text:
    Jean L. RIHON, Appellant, v. Herbert J. T. WILSON, d/b/a Wilson Insurance Agency, Appellee.
    No. 81-1686.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Rehearing Denied July 9, 1982.

      Thomas E. Kingcade of Levy, Shapiro, Kneen & Kingcade, P. A., Palm Beach, for appellant.
    Robert D. Moses of Pomeroy, Betts, Wiederhold & Moses, West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal from the final dismissal of a complaint. Appellant, an exchange student from Belgium, residing in the home of Lucille D. Rybovich, was seriously injured in an automobile accident caused by an uninsured motorist. Mrs. Rybovich, the owner of the car appellant was driving, had an automobile liability insurance policy issued by Ohio Casualty Insurance Company. Appellee, an insurance agent, had procured this policy for Mrs. Rybovich. After the accident, it was discovered that the policy provided limits of $100,000/300,000 for bodily injury protection coverage but only $10,-000/20,000 for uninsured motorist coverage. The UM coverage was inadequate to cover the injuries sustained by appellant.

Appellant brought an action against ap-pellee alleging that appellee was negligent in failing to disclose and explain the UM coverage provisions and options available to Mrs. Rybovich and in improperly and inadequately advising her as to the same. There is no allegation that Rybovich would have purchased higher UM limits had she been more fully advised. Further, there is no allegation of any deficiency concerning the written rejection of UM coverage. Appel-lee moved to dismiss the complaint on the grounds that appellant had no standing to sue him for an alleged error committed by him in an agency relationship with Mrs. Rybovich. Further, the complaint did not allege that appellee owed any duty to appellant in his dealings with Mrs. Rybovich. The trial court dismissed the complaint with leave to amend. Appellant filed an amended complaint adding the insurance company as a party defendant. Appellee again moved to dismiss on the same grounds cited in his previous motion. The trial court granted the motion with prejudice after appellant refused to amend further. This appeal follows.

Appellant contends that the trial court erred in refusing to allow him to bring a direct action against the insurance agent for that agent’s alleged negligence in providing a policy of insurance to the named insured. Citing our recent decision in Hamer v. Kahn, 404 So.2d 847 (Fla. 4th DCA 1981), he asserts that an injured person who is an additional insured or third party beneficiary to an automobile liability insurance policy has a cause of action against an insurance agent who negligently procures the policy involved. While appellant is correct in his reading of our holding in Hamer, a case that also came to us after a motion to dismiss, he fails to discern the crucial difference between his complaint and the complaint filed in Hamer. Hamer alleged in her complaint that she was a third party beneficiary of both the insurance policy and the written contract to procure the insurance. In order to bring a direct cause of action against an agent for his negligence in procuring a policy, one must allege status as a legally recognized beneficiary of the written or implied contract to procure insurance between the agent and the named insured. After a careful review of the complaint in this case, we find that appellant only alleges that he is a third party beneficiary of the insurance policy. Nowhere does he allege that he is a beneficiary of whatever contract existed between the insurance agent and Mrs. Rybo-vich to procure the policy. The omission of this allegation is fatal to appellant’s suit against the agent. In the face of appellant’s refusal to amend, we affirm the dismissal with prejudice.

AFFIRMED.

ANSTEAD, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.


text:
    Gregory EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1688.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The parties have stipulated and we agree that this cause should be remanded for re-sentencing pursuant to our decision in Fogelman v. State, 410 So.2d 564 (Fla. 4th DCA 1982). Accordingly, the sentence of the trial court is hereby vacated and this cause is remanded for further proceedings consistent herewith.

ANSTEAD, BERANEK and HURLEY, JJ., concur.


text:
    Dan FORBERT, Appellant, v. STATE of Florida, Appellee.
    No. 81-2176.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.

      Alan H. Schreiber, Public Defender, and T. Don Tenbrook, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant seeks review of a sentence of eight years for robbery imposed pursuant to his motion to correct an illegal sentence.

As a negotiated plea appellant pleaded guilty to the charge of robbery and the court sentenced him to five years in prison to be followed by three years’ probation. On authority of Villery v. Florida Parole & Probation Com’n, 396 So.2d 1107 (Fla.1981), appellant sought correction of the sentence. After a hearing at which appellant’s exemplary prison record was demonstrated, the court vacated the prior sentence and sentenced appellant to eight years in prison with credit for time served.

Appellant contends that, since his plea and original sentence were negotiated, if the trial court could not coipply with the agreement, appellant should be allowed to withdraw his plea and go to trial. The trial court did not allow the withdrawal of the original plea and appellant contends that was error.

Appellant further contends that the new sentence violates the rule laid down in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). However, in Villery, supra, written long after Pearce, supra, our Supreme Court seemingly authorized the very action taken by the trial court in this case. A substantially identical situation was presented by Beech v. State, First District Court of Appeal Case No. AE-337, Opinion filed April 7,1982, wherein three questions were certified to the Supreme Court. We agree with the disposition by that court and thus affirm the sentence appealed from. Moreover, we also certify the same three questions the First District did as being of great public importance; however, we add one additional question of great public importance to our certification:

1. In correcting a voidable sentence, is the maximum sentence that can be imposed imprisonment for a period of time not exceeding the total of the imprisonment and probation originally imposed? If not, what is the maximum sentence?
2. If the sentence imposed is imprisonment for a period of time not exceeding the total time of the imprisonment and probation originally imposed, can such sentence violate the prohibitions of Pearce?
3. If compliance with Pearce is required under the circumstances set forth in 2. above, at what point does a sentence of imprisonment that replaces a sentence of a combination of imprisonment and probation become a more severe sentence subject to the limitations of Pearce ?
4. If the original sentence was imposed pursuant to and as part of a negotiated plea, in resentencing a defendant upon a Villery motion to correct an illegal sentence can the trial court impose a longer sentence of imprisonment than o.riginally imposed without giving the defendant an opportunity to withdraw his negotiated plea?

DOWNEY, HURLEY and DELL, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Wayne Clark FERGUSON, Petitioner, v. The Honorable Barry J. STONE, as Circuit Judge of the Seventeenth Judicial Circuit, Respondent.
    No. 81-2198.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Alan H. Schreiber, Public Defender, and T. Don Tenbrook, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for respondent.
   GLICKSTEIN, Judge.

Petitioner, defendant in a criminal case before respondent, tendered a plea of nolo contendere to a charge of sexual battery. Based upon newly discovered evidence, he later filed a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(f), which the trial court denied. He now petitions this court for a writ of certiorari, seeking review of the order denying his motion. We conclude the petition should be denied.

Petitioner was charged by information with the sexual battery of his twelve-year-old nephew. He originally pleaded not guilty. Although he continued to maintain his innocence, on May 5, 1981, he entered a negotiated plea of nolo contendere. At the change of plea hearing, defense counsel, citing specifically to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), refused to admit petitioner’s guilt. He maintained petitioner changed his plea solely because he believed it was in his best interests. Counsel acknowledged, however, that if the jury believed the victim’s testimony, such would be sufficient to convict petitioner of the charge. Thus, the testimony constituted a legally sufficient basis to support the plea. In exchange for his plea, the court withheld adjudication and placed petitioner on probation for five years. It also required him to undergo any psychological or psychiatric evaluation ordered by his probation officer and any treatment or programs recommended and supported by the evaluation and to avoid communication with his sister, the victim’s mother, or the victim, his nephew.

In September of 1981, petitioner filed his motion for leave to withdraw his plea on the ground that the victim had recanted his story. In October the trial judge, who had conducted a pre-trial bond revocation hearing and had accepted the plea, held a hearing on the motion. The attorneys at the hearing were the same ones involved in the change of plea. A case worker from the Department of Health and Rehabilitative Services also attended the proceeding. Counsel stipulated the case worker would testify that since the entry of the plea the victim had been placed in a foster home and dependency proceedings were pending to remove him from the custody of his mother because of child abuse.

The victim, now thirteen, testified that his original accusation was untrue and was the result of a beating given him by the man then living with his mother, Willie Slappy, who forced him to lie to his mother and to the police. On cross-examination by the assistant state attorney, however, the victim admitted that when he went to the prosecuting attorney’s office to recant his accusation, he had lied by saying it was his mother, not Slappy, who had beaten him, and that his mother was crazy. Although the victim immediately thereafter maintained his recantation to the prosecutor was the truth, at one point during cross-examination he stated:

Q. In other words, everything you told me in the office was a total and complete lie; is that right?
A. Right.

Slappy also testified at the hearing. He described petitioner as a friend, having no disagreements with him. While living with the victim and his mother, he explained, the victim had complained of his mother’s beatings. He denied having anything to do with the victim and his mother going to the police to report petitioner’s acts. Nor did he tell them what to tell the police.

Bearing in mind that we are being asked to grant a writ of certiorari, petitioner has the burden of establishing a departure from the essential requirements of law. State v. Braverman, 348 So.2d 1183 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 128 (Fla.1978). Focusing more carefully on the issue, we must decide whether the trial judge abused his discretion in denying petitioner’s motion for leave to withdraw his plea of no contest based on the recanting testimony of a key state witness. Id. On the facts recounted above, we think he ruled property-

We distinguish this case from Riddle v. State, 212 So.2d 122 (Fla. 2d DCA 1968), wherein the Second District Court of Appeal, in a split decision, reversed the trial court’s denial of the appellant’s motion to withdraw his plea of guilty. In Riddle the victim’s mother signed an affidavit stating she had procured her daughter to tell the police appellant had raped her. Additional evidence at the hearing tended to support appellant’s position. In the present case, however, the trial court specifically recited at the end of the hearing that not only did he find the victim’s recantation incredible but also that his testimony was contradicted by that of another witness.

Accordingly, we deny the petition.

BERANEK and HURLEY, JJ., concur.

      . Because petitioner is not “a prisoner in custody under sentence,” as Florida Rule of Criminal Procedure 3.850 requires, he is unable to seek post-conviction relief. See Bellcase v. State, 406 So.2d 116 (Fla. 5th DCA 1981) (probationer lacks standing under rule 3.850). Therefore, petitioner’s remedy is to seek a writ of certiora-ri.

      . The victim’s guardian ad litem in the proceedings was present.

      . The alleged child abuse apparently included beatings with an electrical cord and forced feeding of narcotics into the child’s system.

      . The victim explained he had lied because Slappy was with him in the prosecutor’s office. The record is unclear concerning whether he told the prosecutor his mother killed people.

      . Slappy conceded he had beaten the victim “last year.” The Information which this court had forwarded to it gave January 23, 1981, as the date the alleged offense was committed. That was also the year in which petitioner changed his plea and the court conducted the hearing on his motion to withdraw the plea.

      . The abuse of discretion standard is also applied when reviewing the propriety of a trial court’s denial of a motion for a new trial based on recantation of testimony by a prosecuting witness in a sex crime. Mollica v. State, 374 So.2d 1022 (Fla. 2d DCA 1979), cert. denied, 386 So.2d 639 (Fla.1980). See Annot., 51 A.L.R.3d 907 (1973).

      . There was another important element involved in Riddle; namely, the record indicated ignorance, fear, and misapprehension on appellant’s part in pleading guilty. We have none of that — petitioner’s plea was knowingly, intelligently and voluntarily made.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Donald F. REAGLE and Reagle Properties, Inc., Appellants, v. CHICAGO TITLE INSURANCE COMPANY and Robert G. DeSantis, As Trustee, Appellees.
    No. 81-1517.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    L. Murray Fitzhugh of Knight & Fitz-hugh, Stuart, for appellants.
    W. Jay Hunston, Jr. of DeSantis, Cook, Gaskill & Silverman, P. A., North Palm Beach, for appellee Robert G. DeSantis, as trustee.
   PER CURIAM.

AFFIRMED.

BERANEK, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

I reluctantly dissent from the majority’s affirmance of the trial court’s dismissal with prejudice of appellant’s counterclaim. My dissent is with reluctance because a review of the record reflects that the trial court generously gave the appellant four opportunities to amend the counterclaim so as to set forth a cause of action. Despite this the appellant continued to file pleadings which failed to clearly and concisely set out a cause of action. However, based on the authority of Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927), I believe the appellant has stated a cause of action for breach of a fiduciary relationship. Scattered among the allegations of the various counterclaims filed are statements that the appellant listed his property with the appellee broker at a time when the appellant was incompetent and his incompetency was known to the broker, and that despite the obviousness of this incompetency the appel-lee broker took advantage of the appellant and purchased appellant’s property at a price well below its then market value.


text:
    Juan PEREZ, as Administrator of the Estate of Johnny Perez, a minor, deceased, Appellant, v. Maria OTERO and United States Fidelity & Guaranty Company, Appellees.
    No. 81-567.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Horton, Perse & Ginsberg and Edward A. Perse, Ratiner & Glinn, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before HENDRY and DANIEL S. PEARSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   MELVIN, WOODROW M. (Ret.), Associate Judge.

Perez appeals a final declaratory judgment wherein the trial court held that the appellee, United States Fidelity and Guaranty Company, did not have to pay interest on a punitive damages portion of a judgment that had been entered in favor of Perez against U. S. F. & G.’s insured, Otero.

The appellant, while recognizing that U. S. F. & G. is not liable to pay the punitive damages award [Nicholson v. American Fire and Casualty Insurance Company, 177 So.2d 52 (Fla.2d DCA 1965); Hartford Accident & Indemnity Company v, U. S. Concrete Pipe Company, 369 So.2d 451 (Fla. 4th DCA 1979) ] contends it is liable for interest on that portion of the judgment, due to an ambiguity in the contract of insurance. The claimed ambiguity is found in the following clause:

“HI. SUPPLEMENTARY PAYMENTS
The company will pay, in addition to the applicable limit of liability:
(a) all expenses incurred by the Company, all costs taxed against an insured in any suit defended by the company and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the Company has paid or tendered or deposited in the court that part of the judgment which does not exceed the limit of the Company’s liability thereon;”

The appellant contends this clause must be interpreted to include interest on the award of punitive damages in the instant case because, any ambiguity must be construed against the company. We disagree and affirm the trial court. Insurance companies are not liable for punitive damages assessed against their insured for torts committed by their insured as a matter of public policy. Nicholson v. American Fire and Casualty Insurance Company, supra; Hartford Accident & Indemnity Company v. U. S. Concrete Pipe Company, supra. For this court to adopt the interpretation of the clause in question as advocated by the appellant would result in the absurd result of penalizing the insurance company for not paying a judgment it is not legally obligated to pay. This we will not do. See Paddock v. Bay Concrete Industries, Inc., 154 So.2d 313 (Fla.2d DCA 1963); Hunt v. First National Bank of Tampa, 381 So.2d 1194 (Fla.2d DCA 1980). The only reasonable interpretation of the clause in question, is to hold that the insurer is only liable to pay interest on that portion of the judgment that is not in violation of the public policy of the State of Florida.

Therefore, the judgment under review is hereby affirmed.

Affirmed.


text:
    Linda F. CARROLL, Appellant, v. Bernie R. CARROLL, Appellee.
    No. 81-898.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Melvin A. Rubin, Miami, for appellant.
    No appearance for appellee.
    Before HUBBART, C. J., and BASKIN, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

The final order of child support under review which was entered below in an action brought under the Uniform Reciprocal Enforcement of Support Act [ch. 88, Fla. Stat. (1981)] is reversed and the cause is remanded to the trial court for further proceedings.

The order appealed from is, in our view, defective in two respects. First, the said order requires the ordered child support payments to be paid directly to the child’s mother [appellant Linda F. Carroll], rather than the court system of the initiating state as more particularly described in Section 88.241, Florida Statutes (1981). Secondly, the said order adjudicates visitation rights for the father [appellee, Bernie R. Carroll] and conditions the ordered child support payments upon the allowance of such visitation rights by the mother Linda F. Carroll, although neither of these provisions in the order is authorized under the Uniform Reciprocal Enforcement of Support Act. Vecellio v. Vecellio, 313 So.2d 61 (Fla.4th DCA 1975). It follows, then, that the order appealed from must be reversed and the cause remanded to the trial court with directions to modify the order under review in accordance with the views expressed in this opinion.

Reversed and remanded.


author: FERGUSON, Judge.

text:
    Winifred R. FLOYD and Chester C. Floyd, Appellants, v. The GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Appellee.
    No. 81-975.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Byrd V. Duke, Jr., North Miami, for appellants.
    Shutts & Bowen and Edmund T. Henry, III, Miami, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Appellants, husband and wife, filed a complaint for a declaratory judgment to determine whether there was coverage for the husband under a group health insurance policy. The trial court entered an order granting appellee’s motion to dismiss for failure to state a cause of action with leave to amend within twenty (20) days — which was non-appealable, Cassidy v. Ice Queen International, Inc., 390 So.2d 465 (Fla. 3d DCA 1980) — then entered an appealable order of dismissal with prejudice when plaintiffs did not amend the complaint within the allotted time. As the single issue in this appeal appellants contend that the complaint was sufficient and should not have been dismissed. We agree and reverse.

Chester Floyd is the husband of Winifred Floyd. They claim that Chester is an insured dependent under a policy of insurance issued to Winifred through her employer. GUARDIAN, the insurer, disputes Chester’s rights under the policy, relying on provisions in the policy identifying the wife as a Class II employee whose dependents are not covered. Mr. Floyd incurred large medical expenses, a small portion of which GUARDIAN paid before denying liability. The Floyds brought an action for, among other things, declaratory relief.

A complaint seeking declaratory relief must allege ultimate facts showing a bona fide adverse interest between the parties concerning a power, privilege, immunity or right of the plaintiff; the plaintiff’s doubt about the existence or non-existence of his rights or privileges; that he is entitled to have the doubt removed. Grable v. Hillsborough County Port Authority, 132 So.2d 423 (Fla. 2d DCA 1961); Colby v. Colby, 120 So.2d 797 (Fla. 2d DCA 1960); May v. Holley, 59 So.2d 636 (Fla.1952). Also, the persons having an actual, present and adverse interest in the subject matter must be shown. Miller v. Miller, 151 So.2d 869 (Fla. 2d DCA 1963).

Although prolix, the complaint satisfied these requirements and is sufficient to establish a claim for declaratory relief. A bona fide adverse interest was asserted by plaintiffs on the ground that they were insured either directly under defendant’s policy or, as shown by the issuance of Group Insurance Enrollment and Record Cards to Chester C. Floyd, as an eligible dependent. The complaint also alleges a right to coverage which cannot be readily ascertained due to ambiguous provisions in the policy. Lastly, it is alleged that inconsistent acts of GUARDIAN, bearing on the question of coverage, make plaintiffs’ status under the policy uncertain and that plaintiffs are entitled to have that status determined.

Appellee urges us to find that the complaint sounds solely in contract thus the only proper forum is at law for damages and not in equity for declaratory relief, citing several cases as authority. In the cases relied upon by appellee—Reddick v. Christie, 226 So.2d 434 (Fla. 4th DCA 1969) (complaint on construction contract for sums owed to plaintiffs did not state a claim for declaratory relief); Broward Drug Stores, Inc. v. Perini Land & Development Company, 170 So.2d 86 (Fla. 2d DCA 1964) (Lessee’s complaint showed no doubt existed as to lease provisions and no special circumstances requiring declaratory relief beyond available legal remedies); Barrett v. Pickard, 85 So.2d 630 (Fla.1956) (provisions of the instrument clear and free of ambiguities leaving only an issue of damages not properly ascertainable under Declaratory Relief Statute) — the courts were not faced with complaints alleging ambiguity in the terms of a written agreement and seeking a determination of rights and obligations of the parties.

The possibility that a proper interpretation of the insurance policy would result in a decree adverse to plaintiffs does not preclude their right to a declaratory decree. Talcott v. Central Bank and Trust Co., 220 So.2d 411 (Fla. 3d DCA 1969).

Reversed and remanded for further consistent proceeding.

      . Appellees contend that the order dismissing with leave to amend is an order to amend and failure to comply is grounds for dismissal on the merits, appellate review of which is limited to whether the trial court abused its discretion. We considered the same issue recently, Neze-
        lek v. Sunbeam Television Corporation, 413 So.2d 51 (1982), and held to the contrary. A party whose complaint has been dismissed for failure to state a cause of action with leave to amend has the option of amending or awaiting entry of an appealable order if he wishes to challenge the correctness of the dismissal.

      . Section 86.021, Florida Statutes (1979) provides:
      Any person in doubt about his rights under a ... instrument in writing or whose rights, status or other equitable or legal relations are affected by ... memorandum, or instrument in writing may have determined any question of construction or validity arising under such ... contract, deed, will, ... memorandum or instrument in writing, or any part thereof, and obtain a declaration of rights, status or other equitable or legal relations thereunder.

      . The complaint alleges in pertinent paragraphs:
      4.That on March 31, 1977, Plaintiff, Winifred R. Floyd was a full time employee of Manson Clinic and made application for Group Insurance Enrollment and Record Card, setting forth Plaintiff, Chester C. Floyd, her husband, as eligible dependent, a copy of said Group Insurance and Record Card is attached, marked Exhibit “B”, and made a part hereof.
      7. Plaintiff, Winifred R. Floyd, pursuant to page 4(a) of said policy was eligible and insured for Dependent Coverage for her husband, Chester C. Floyd, and the bottom of the page states “Except as provided below, each employee who meets these requirements shall become insured for Dependents Coverage,
      11. That when Plaintiff, Chester C. Floyd was hospitalized on November 12, 1979, Defendant thru [sic] its employee, Clara or Clara Sipes of Defendant’s office at 720 Olive Street, St. Louis, Mo. verified to North Shore Hospital by telephone that Plaintiff, Chester C. Floyd had dependent coverage of 100% to unlimited amount.
      15. That by reason of the ambiguity and uncertainty of the provision of said policy, Exhibit “A” and Enrollment and Card, Exhibit “B”, and by reasons of Defendant’s conduct and payment of some claims, and the provisions of the omission of the words “and dependent” from Part III of the policy on second page no. 36, and the concealment of Defendant of the policy as to page 1027.1003 and 1027.1004 which will be described hereafter which was drawn by Defendant; that Plaintiffs are in doubt as to their rights under the policy in the circumstances alleged herein.
      18. The Defendant orally denied Plaintiffs’ claims, denied liability under its policy and failed and refused and still fails and refuses to pay Plaintiffs the claim of $25,477.95 or any part thereof.
      WHEREFORE, Plaintiff demands the court to grant relief as follows:
      1. To interpret and construe the provision of the policy and Group Insurance Enrollment and Record Card and to render and enter a declaratory judgment of the meaning and effect in the circumstances of said provision, ... that the Defendant is ... liable upon its policy....