text:
    David HESS and Donna Hess, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellees.
    No. 84-608.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1984.
    Leen & Schneider and Joseph L. Schneider, Hollywood, for appellants.
    Daniels & Hicks and Patrice A. Talisman, Miami, Richard E. Hardwick, Coral Gables, for appellees.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   HENDRY, Judge.

This appeal questions the correctness of a summary judgment rendered in favor of Liberty Mutual Insurance Company on appellants’ third party complaint.

The facts giving rise to this appeal are as follows. David Hess and his wife Sydelle lived in apartment 409-A of the Summer-winds Apartments. They procured a homeowner’s policy on their residence from Liberty Mutual Insurance Company. The Hess’s daughter, Donna, occupied apartment 301-A in the same building under a lease signed by her and her father. Soon after she took possession under the lease, a fire originated in her apartment and caused extensive damage. The fire was caused by the alleged negligence of Donna.

Northbrook Property and Casualty Insurance Company paid $61,514.72 to its insured, the owners of the apartment building. Northbrook was then subrogated to any claim of its insured for this property damage. Thereafter, Northbrook filed suit against Donna and David Hess. The company alleged that the fire was caused by the negligence of Donna and that she and her father were liable for the damages under an indemnification clause in the lease. Donna and David filed a third party complaint against Liberty Mutual upon the homeowner’s policy which David had with the company. The complaint demanded a judgment against Liberty Mutual for all damages for which appellants would be liable to Northbrook.

Liberty Mutual moved for a summary judgment on the grounds that its coverage applied only to the named insured and specified insured locations and that Donna’s apartment was not such an insured location. The trial court granted this motion for summary judgment and entered final judgment in favor of Liberty Mutual and against David and Donna Hess. It is from this judgment that the Hesses have appealed.

Appellants’ sole point on appeal is whether the trial court erred in granting the third party defendant’s motion for summary judgment. They argue that there is a question of whether they are covered under definition 4: “insured location means ... (h) any part of a premises occasionally rented to any insured for other than business purposes”, precluding summary judgment. They note that the term “occasionally rented” is not defined in the policy and they argue that the term is ambiguous. We disagree.

In Saha v. Aetna Casualty & Surety Co., 427 So.2d 316 (Fla. 5th DCA 1983), the court stated:

When the language of an insurance policy is clear and unambiguous it must be accorded its natural meaning. An insurance policy should receive a reasonable, practical and sensible interpretation. Although ambiguities should be resolved against the insurer, this principle applies only when there exists a genuine inconsistency, uncertainty or ambiguity in meaning after resort to the ordinary rules of construction.

Id. at 317 (citations omitted). Accord Southeastern Fire Insurance Co. v. Lehrman, 443 So.2d 408 (Fla. 4th DCA 1984). Insurance contracts are complex instruments. The fact that analysis is required for one fully to comprehend them does not mean the contracts are ambiguous. State Farm Fire & Casualty Co. v. Oliveras, 441 So.2d 175, 178 (Fla. 4th DCA 1983). We find that definition 4(h) is not ambiguous. The reasonable, practical and sensible interpretation of the language “any part of a premises occasionally rented to any insured for other than business purposes” does not refer to the situation where a father co-signs a one year lease for his daughter. Rather it refers to rentals occurring now and then, such as vacation rentals. Accordingly, the entry of final summary judgment for the appellee is affirmed.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jean WAXMAN, Appellant, v. Norman K. SCHWARZ, P.A., and Norman K. Schwarz, individually, Appellees.
    No. 84-688.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1984.

      Ellis Rubin and Edward Brigham, Miami, for appellant.
    Norman K. Schwarz, Miami Beach, and Louis Tertocha, Fort Lauderdale, for appel-lees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

We agree with the appellant’s contention that the remedy of dismissal for failure to post a $100.00 cost bond pursuant to section 57.011, Florida Statutes (1983), is too harsh where, as here, the plaintiff offers to post the bond, albeit tardily, and the face of the complaint demonstrates sufficient assets in the form of a one-half interest in a condominium located in Dade County, Florida, which would provide an ample basis for recovery of costs.

Finding that the trial court abused its discretion in this regard, we reverse and remand with directions to the trial court to reinstate the amended complaint.


author: BOARDMAN, Acting Chief Judge.

text:
    Mildred M. FILKINS, Appellant, v. Harry A. FILKINS, Appellee.
    No. 84-469.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1984.
    Louis Kwall of Gross & Kwall, Clear-water, for appellant.
    Joanne F. Killeen, St. Petersburg, for appellee.
   BOARDMAN, Acting Chief Judge.

In this dissolution of marriage proceeding, appellant/wife contends the trial court abused its discretion ⅛ failing to award her permanent periodic alimony. We agree and therefore reverse.

The parties were divorced after twenty-nine years of marriage. At the time of dissolution, the husband was a fifty-eight-year-old seaman earning an estimated $45,-000 a year. The fifty-seven-year-old wife, on the other hand, had been a homemaker for the duration of the marriage, had raised three children, and possessed an eleventh grade education. The wife has not worked since the beginning of the marriage and is not presently trained for any employment. The wife did testify, however, that three years ago she worked on an assembly line for one day, but the job was too much for her to handle.

The final judgment of dissolution awarded the wife rehabilitative alimony of $1300 per month for twenty-four months, reduced to $500 per month for the next twelve months. The court further awarded to the wife the parties’ marital home in Tampa (estimated value $62,000) and their mobile home lot in Ruskin, Florida (estimated value $10,000). The husband received the parties’ beach house on Anna Maria Island (estimated value $73,000 with a $20,000 mortgage), two lots in Hillsborough County, and $7000 in receivables due from various relatives. A negligible amount of stock was divided equally between the parties.

An award of rehabilitative alimony to a party presupposes the actual or potential capacity for self-support within the prescribed period commensurate with the party’s accustomed standard of living. Maloy v. Maloy, 431 So.2d 743 (Fla. 2d DCA 1983); Holland v. Holland, 406 So.2d 496 (Fla. 5th DCA 1981); Burke v. Burke, 401 So.2d 921 (Fla. 5th DCA 1981); Wagner v. Wagner, 383 So.2d 987 (Fla. 4th DCA 1980); and Messer v. Messer, 342 So.2d 1076 (Fla.2d DCA 1977). Without this capacity there is nothing to which one can be rehabilitated. See, e.g., Patterson v. Patterson, 315 So.2d 104 (Fla. 4th DCA 1975), cert. denied, 330 So.2d 20 (Fla.1976); Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975). Here, in view of the facts that appellant has less than a high school education and has not worked in twenty-nine years, there is little, if any, chance that she will be self-supporting within three years, certainly not to the standard of living she enjoyed while married.

Accordingly, we reverse and remand this cause to the trial court with directions to revisit the question of permanent alimony based on the wife’s needs and the husband’s ability to provide for those needs. We affirm the final judgment of dissolution in all other respects.

Reversed and remanded for further proceedings not inconsistent herewith.

GRIMES and SCHEB, JJ., concur.


author: PER CURIAM. ORFINGER, Judge,

text:
    Cathryn C. POLLOCK, Appellant, v. ALBERTSON’S, INC., etc., Appellee.
    No. 83-39.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.
    J. Russell Hornsby of The Law Offices of J. Russell Hornsby, P.A., Orlando, for appellant.
    Robert W. Mixson of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

COWART, J., and DAVIS, S.J., Jr., Associate Judge, concur.

ORFINGER, J., dissents with opinion.

ORFINGER, Judge,

dissenting.

The plaintiff appeals from an adverse summary judgment in an action for false imprisonment and slander. We must consider the record in the light most favorable to the plaintiff, as the non-moving party and the testimony is viewed in that fashion. Holl v. Talcott, 191 So.2d 40 (Fla.1966); O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982).

Cathryn C. Pollock went into Albertson’s store to shop. Her husband and daughter were waiting for her in their car in the store’s parking lot. As she went by the cosmetics counter she decided to purchase two tubes of lipstick, and after selecting the colors she wanted she placed them in her shopping cart. The small tubes, not mounted on a card, slipped through the openings in the shopping buggy, and when this happened for the third time, Ms. Pollock wrapped them in a manufacturer’s “cents-off” coupon which she had acquired in the store, and placed them in her pocketbook, which she described as a large, open bag without a lock or any compartments. She wrapped them in the coupon so that she could easily get to them in her pocketbook when she arrived at the checkout counter. She selected the few other items she had come in for, and got into the express check-out lane to pay for her purchases, including the lipsticks.

While waiting in the check-out line, a security guard employed by Albertson’s approached her, asked her to step out of the line and in a loud and accusing voice said: “... I’m going to give you a break. I could arrest you but I’m going to give you a chance to pay for those two tubes of lipstick in your pocketbook.” Although she explained to this person that she was waiting in line to pay for her purchases and had every intention of paying for the lipsticks, he nevertheless continued this conversation so that everyone nearby in the “very busy store” could hear. Plaintiff contends that she was embarrassed, humiliated and shamed and sought damages for the store’s actions.

The trial court apparently granted Al-bertson’s motion for summary judgment on the basis of section 812.015(3-5), Florida Statutes (1981), which permits a merchant who has probable cause to believe that merchandise has been unlawfully taken by a person, to detain that person in a reasonable manner for a reasonable length of time in order to recover that merchandise, and without liability to such person for “false arrest, false imprisonment or unlawful detention.” (Section 812.015(3)(c)). See Rothstein v. Jackson’s of Coral Gables, Inc., 133 So.2d 331 (Fla. 3d DCA 1961) and Weissman v. K-Mart Corp., 396 So.2d 1164 (Fla. 3d DCA 1981), both cited in the order granting the motion for summary judgment. But while the court may have been correct in holding that by virtue of section 812.015, it was reasonable for the security officer to believe that plaintiff was unlawfully taking the lipstick when she put it in her pocketbook and thus reasonable for him to detain her in a reasonable manner, the court was not correct in concluding that this statute protected Albertson’s from the effect of a slander committed in the course of such detention.

In Food Fair Stores, Inc. v. Kincaid, 335 So.2d 560 (Fla. 2d DCA 1976) the court held that the predecessor statute to the one involved here, while protecting a merchant against a claim for false arrest, did not offer any protection against a claim of malicious prosecution “so the law otherwise applicable to this cause of action applies.” Weissman v. K-Mart, supra, cited by the trial court here, approved the same principle. Since the subject statute likewise offers no protection to the merchant for any slander, the law otherwise applicable to that cause of action applies.

In Tip Top Grocery Co. v. Wellner, 135 Fla. 518, 186 So. 219 (1938), there was an appeal taken from a verdict for plaintiff in an action for slander based on facts quite similar to those here. There, a store clerk had accused the plaintiff, a customer, of not having paid for bread which she had gotten earlier. In holding these words to be slanderous per se, and in affirming the verdict, the supreme court said:

The words alleged to have been used by an employee of the defendant being: “You did not pay for the bread you got Saturday”, were said in a loud and accusing voice in the defendant’s grocery store where it could be heard by those present. The words are per se slanderous and from their use it may be implied that the plaintiff committed the crime of larceny by taking the bread. If the publication is false and not privileged and the proximate consequence is to injure a person in his personal, social, official or business relations in life, wrong and injury are presumed. In the ease of McClellan v. L’Engle, 74 Fla. 581, text 588, 589, 77 So. 270, text 272, this Court said:
A civil action for libel will lie when there has been a false and unprivileged publication which exposes a person to distrust, hatred, contempt, ridicule, or obloquy, or which causes such person to be avoided, or which has a tendency to injury such person in his office, occupation, business or employment. If the publication is false and not privileged, and is such that its natural and proximate consequence necessarily causes injury to a person in his personal, social, official, or business relations of life, wrong and injury are presumed or implied and such publication is actionable per se. [Citations omitted].

Defendant here does not deny that the incident occurred, but does not agree with plaintiffs version of what transpired during the incident. Defendant also claims privilege in the statements made to plaintiff and says that the statements “were not made with the requisite knowledge of falsity or reckless disregard for the truth.” Clearly then, on the cause of action for slander, several jury issues are made. First, there is a dispute as to the facts. If the words were spoken as plaintiff asserts they were, they are slanderous because they accused her of trying to steal the lipsticks. Next, there is an issue as to the truth of the accusation that Ms. Pollock intended to steal the lipsticks. The act of moving goods within a self-service store is not per se an indication of intent to steal, although an asportation and concealment of goods within a self-service store may be sufficient evidence to prove the intent to steal. Haslem v. State, 391 So.2d 389 (Fla. 2d DCA 1980). Intent is ordinarily a question of fact for the trier of fact. State v. Waters, 436 So.2d 66 (Fla.1983). Here there is evidence that plaintiff was waiting in the check-out line to pay for the goods, including the lipstick, and the evidence is undisputed that she had the money to do so. It is therefore up to the trier of fact to determine whether or not criminal intent existed.

Similarly, the issue of privilege should not have been decided summarily. Plaintiff testified that the statements were made in a loud, accusatory voice so that everyone (including customers) in the vicinity could hear them. If there is a qualified privilege in making the statements, that privilege could be exceeded if made before too wide an audience, and the question of whether a privilege exists or has been exceeded in some manner creates a mixed question of law and fact which should be determined by the trier of fact. See Glynn v. City of Kissimmee, 383 So.2d 774 (Fla. 5th DCA 1980) and cases cited therein.

The majority has not expressed its reasons for affirmance, but it seems to me that the plaintiff was entitled to present the slander issue to a jury and should not have been summarily deprived of that right. The absence of a cause of action for false imprisonment does not make the slander action disappear. I therefore dissent, and would reverse the judgment.


author: FRANK D. UPCHURCH, Jr., Judge. SHARP, Judge,

text:
    Frank J. CRISTICH, et al., Appellants, v. ALLEN ENGINEERING, INC., Appellee.
    Nos. 83-813, 83-1059.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.

      Richard H. Miller of Crofton, Holland, Starling, Harris & Severs, P.A., Titusville, for appellants.
    Ted R. Brown of Maguire, Voorhis & Wells, P.A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants Frank J. Cristich and Tom S. Clark filed suit against appellee Allen Engineering to recover for damages sustained as a result of an erroneous survey. The survey was prepared on an apartment complex and was certified accurate as of January 18, 1980, on the order of Johnson L. and Sally Murphy. On May 21, 1980, the Murphys entered into a contract to sell the apartment complex to appellants and furnished them with a copy of the survey.

Appellants claimed that they relied on the survey in deciding to buy the property and subsequently discovered that the dimensions, size and volume of the apartment units were not in accord with the survey. Appellee affirmatively alleged that the action was barred by the statute of limitations. Appellants actually discovered the errors in the survey on October 10, 1980, when their workmen were preparing to install carpet and did not commence this action until November 9, 1982, more than two years later. The trial court granted appellee’s motion for summary judgment, finding that the two-year statute of limitations for professional malpractice applied here.

Section 95.11, Florida Statutes (1981), provides in relevant part that:
Actions other than for recovery of real property shall be commenced as follows: (4) WITHIN TWO YEARS
(a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.

Appellants argue that this two year statute of limitations does not apply here because (1) this case does not involve a “professional act,” and (2) even if it does, appellants were not “persons in privity with the professional” and hence the two year limitation period is inappliable to them under the express language of the statute. If this limitation period is inapplicable here, then appellants would have four years within which to bring suit under the statute of limitations governing general negligence actions. See § 95.11(3)(a), Fla.Stat. (1981).

We believe that a “professional act” is involved here and that section 95.11(4)(a) applies to the alleged malpractice of appel-lee, a surveyor, just as it applies to attorney malpractice. See, e.g., Rosa v. Roth, 442 So.2d 323 (Fla. 3d DCA 1983); Cherney v. Moody, 413 So.2d 866 (Fla. 1st DCA 1982). The legislature has not provided a definition of “professional malpractice” in Chapter 95 nor has listed what particular professions are encompassed within the term. Webster’s New Collegiate Dictionary (1979) defines “Professional” as one who is “engaged in one of the learned professions.” “Profession” is defined as “a calling requiring specialized knowledge and often long and intensive academic preparation.”

Land surveying is regulated by the Board of Land Surveyors, Department of Professional Regulation, pursuant to Chapter 472, Florida Statutes (1981). Section 472.005 includes the following definition:

(4)(a) ‘Practice of land surveying’ means, among other things, any professional service or work, the adequate performance of which involves the application of special knowledge of the principles of mathematics, the related physical and applied sciences, and the relevant requirements of law for adequate evidence of the act of measuring, locating, establishing, or reestablishing lines, angles, elevations, natural and man-made features in the air, on the surface and immediate subsurface of the earth, within underground workings, and on the beads or surface of bodies of water, for the purpose of determining or establishing the facts of size, shape, topography, tidal datum planes, legal or geodetic location or relocation, and orientation of improved or unimproved real property and appurtenances thereto, including acreage and condominiums.

This definition reveals that land surveying requires a great degree of specialized knowledge. This knowledge is generally derived from extensive academic preparation and indeed before one can sit for the surveyor’s licensing exam in this state, he must either have graduated from a university surveying program and have at least two years experience in land surveying under a professional land surveyor, or have at least eight years experience under a land surveyor. See § 472.013, Fla.Stat.

We conclude that the preparation of a survey, involving as it does such intricate knowledge of mathematics, geography and the physical sciences, is a “professional act.” Therefore, it is encompassed within section 95.11(4)(a), Florida Statutes. We recognize that the Fourth District, in Toledo Park Homes v. Grant, 447 So.2d 343 (Fla. 4th DCA 1984) has concluded otherwise.

The second and more difficult issue involves the last sentence in section 95.-ll(4)(a) which reads, “However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.” Appellants position is that since the sellers of the property contracted with appellee for the survey, they are not in privity and are not limited to the two year limitation period.

. Undoubtedly the survey was prepared by appellee with the knowledge and intent that it would be relied upon by purchasers of the property because it was part of the condominium documents furnished to purchasers. See First American Title Ins. Co. v. First Title Service Co., 457 So.2d 467 (Fla.1984). Appellants, as intended and known beneficiaries of the surveying contract, stand in the shoes of the party contracting for them and can have no greater right than a party to the contract. It would be incongruous to hold that one who deals directly with the professional is limited to two years within which to institute suit while the one who does not, but for whom the agreement is made, can assert a cause of action against the professional within four years. We hold that the court correctly applied the two year statute of limitations.

AFFIRMED.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I disagree that these purchasers (Frank J. Cristieh, et al.) of real estate are in “privity” with the surveyor (Allen Engineering, Inc.), for purposes of applying the two year statute of limitations of section 95.11(4)(a), Florida Statutes (1981). In this case, the purchasers sued Allen Engineering for damages allegedly caused them by its negligent performance of professional duties in preparing a survey for the Mur-phys, the prior owners of the property. At the time the survey was done for the Mur-phys the purchasers had not contracted to buy the property. Nor does the record show that when the survey was prepared the purchasers knew anything about the Murphys’ property, nor that the Murphys knew anything about the purchasers.

The surveyor’s potential liability in this case does not depend on a finding that the purchasers and the surveyor were “in privity” with one another. For example, in Navajo Circle, Inc. v. Development Concepts, 373 So.2d 689 (Fla. 2d DCA 1979), the Second District, while finding no privity of contract between the plaintiffs, a condominium association and owner of a unit in the condominium, and the defendant architects who supervised construction of the building, nevertheless allowed the plaintiffs action for negligence in the construction of the condominium to stand. The court stated:

The issue in any negligence action is whether the injury resulted from defendant’s violation of a legal duty owed to the plaintiff. The threshold question, therefore, is whether these defendants have a legal duty to plaintiffs. ‘[T]he absence of contractual privity between plaintiff and defendant does not affect plaintiff’s tort claim, provided plaintiff can establish the existence of a duty between the parties, and defendant’s breach of such duty, with the proximate result that plaintiff suffered the damages of which it complains.’ Detweiler Bros., Inc. v. John Graham & Co., 412 F.Supp. 416, 419 (E.D.Wash.1976). See also Cooper v. Jevne, 56 Cal.App.3d 860, 128 Cal.Rptr. 724 (Ct.App.2d 1976).
The duty owed by a defendant to a plaintiff may have sprung from a contractual promise made to another; however, the duty sued on in a negligence action is not the contractual promise but the duty to use reasonable care in affirmatively performing that promise. The duty exists independent of the contract. Existence of a contract may uncontrovertibly establish that the parties owed a duty to each other to use reasonable care in performance of the contract, but it is not an exclusive test of the existence of that duty. Whether a defendant’s duty to use reasonable care extends to a plaintiff not a party to the contract is determined by whether that plaintiff and defendant are in a relationship in which the defendant has a duty imposed by law to avoid harm to the plaintiff.

373 So.2d at 691. See also Luciani v. High, 372 So.2d 530 (Fla. 4th DCA 1979) (engineer liable to homeowner for negligence in testing land on which house was located, even though he was employed by the contractor who built house).

However, the majority has concluded that the purchasers’ suit against the surveyor is barred because they were “in privity” with the surveyor. In a recent case, First American Title Insurance Company, Inc. v. First Title Service Company of The Florida Keys, Inc., 457 So.2d 467 (Fla.1984), the Florida Supreme Court reaffirmed its prior view that a buyer of real estate is not in privity with the seller (nor with the seller’s abstract company) for purposes of establishing the right of the buyer to sue the abstractor who prepared an abstract of title for the seller. See Sickler v. Indian River Abstract and Guaranty Co., 142 Fla. 528, 195 So. 195 (1940). In First American Title Insurance Company, the court quoted Sickler:

An abstractor is liable in damages for injuries resulting from wrongful or negligent errors, defects or omissions in an abstract prepared and furnished by him.... [H]is liability is not in tort, but is contractual.
* * * * * *
The general rule is that the liability of an abstractor extends only to the person employing him, or to one who is a party of privy to the contract of employment.
* * * * * *
The negligence or unskillfulness of an abstractor does not render him liable to the alienee, devisee, or other successor in interest [to the one] employing him, or other persons with whom there is no privity of contract. (Emphasis supplied).

457 So.2d at 468 (quoting Sickler at 142 Fla. at 532-33, 195 So. at 197-98).

Since successor owners of land are not (in general) in privity with the prior owner’s abstract company, I conclude that they are also not in privity with the prior owner’s surveyor — absent an extraordinary showing, which is simply not made in this record. As noted above, there is no basis in this record to conclude that this survey was ordered for the use of these purchasers, or that the surveyor company knew these purchasers would rely on the survey. Cf. First American Title, at 470. I would reverse the summary judgment which can only be sustained on the basis of finding that these purchasers were in privity with the surveyor.

      . Appellants claimed damages due to: (1) an increase in the cost of renovating the apartments because they varied in size and were not one size as the survey had indicated, (2) fees incurred in preparing new condominium documents to reflect a corrected survey, and (3) loss in the re-sale value of each unit because of their irregular dimensions and in some cases, lower than indicated ceilings.

      . Appellants claim that section 95.11(3)(c), Florida Statutes, which contains a four year statute of limitations, is the appropriate statute of limitations here. That subsection provides:
      (3) Within four years:
      (c) An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event, the action must be commenced within 15 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer, whichever date is latest.
      In Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla.1983), the supreme court, while rejecting this court’s conclusion that the statute of limitations had not run on the school board’s claim for defective roofs, agreed that the statute of limitations found in (3)(c) and not the one found in (4)(a) was applicable. 435 So.2d at 805, n. 2. The basis for this conclusion was that the case involved alleged architectural errors in the design of the roofs and the language of (3)(c) was more specifically applicable to the situation. See generally, Carcaise v. Durden, 382 So.2d 1236 (Fla. 5th DCA 1980) (generally a special statute of limitations which addresses itself to specific matters will take precedence over a general statute). Here, (3)(c) is not applicable as it applies to actions "founded in the design, planning, or construction of an improvement to real property." The survey in this case was not a designing, planning or constructing function related to the improvement of real property.

      . Actions other than for recovery of real property shall be commenced as follows: .
      * * * * * *
      (4) WITHIN TWO YEARS.— '
      (a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.

      . There is nothing in the record in this case to support the statement in the majority opinion that this survey was prepared for these purchasers except in an extremely general sense, that any future purchaser, be it developer or condominium unit owner, would rely on the condominium documents. The facts are that the survey was completed and certified on January 18, 1980. It was furnished by the Murphys with other condominium documents to the Florida Division of Condominiums and it formed part of the recorded documents for the condominium. However, not until April of 1980 did these purchasers become interested in buying the project. At that time, the Murphys gave them a copy of the survey, which they allege they relied upon in entering into the contract to purchase (on May 1980), and in closing (on June and August of 1980).


author: STROKER, R.J., Associate Judge. COWART, Judge,

text:
    In re the Marriage of David HOLLAND, Appellant, v. Debra Ann HOLLAND, Appellee.
    No. 83-1134.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.
    Tim Keyser, Interlachen, for appellant.
    . No appearance for appellee.
   STROKER, R.J., Associate Judge.

This is an appeal from a Final Judgment of Dissolution of Marriage which, in pertinent part, awarded the care, custody and control of the parties’ minor children to the mother. Prior to the final hearing the parties filed “Supplemental Marital Settlement Stipulations” which provided for full retention by both parents of their parental rights and responsibilities. At the hearing, counsel for the appellee/wife stated to the Court that she is “unaware of any reason that shared parental responsibility would be detrimental to the children in this case.”

After hearing argument from counsel, the Trial Court declined to enter a shared parental responsibility order and awarded care, custody and control of the minor children to the wife. This decision was not based on a finding that shared parental responsibility would be detrimental to the children but on the general proposition that one of the parents must be possessed of the ultimate decision making authority on matters concerning the children. In all other respects the Pinal Judgment of Dissolution incorporated the stipulations of the parties concerning shared parental responsibility and frequent and continuing contact by the father.

As this Court recently noted in Elebash v. Elebash, 450 So.2d 1268 (Fla. 5th DCA 1984), the trial court does have the authority to decline to follow a settlement agreement between the parties relating to child custody, visitation and support. Sections 61.13(2)(b)2.a., Florida Statutes (Supp.1982) expressly provides that the court may grant to one party the ultimate responsibility over specific aspects of the child’s welfare including primary residence, education, medical care and others. It is clear, however, that the law contemplates such decisions being made on a case-by-case basis after an evidentiary finding concerning the best interest of the child. No such finding was made in this case. The trial court said: “I will not enter a shared parental responsibility order ...” and explained its refusal to enter an order of shared parental responsibility by stating, in part:

... the Legislature has no power under the Constitution of the State of Florida to mandate my use of my judicial discretion .... I find that the right to make the ultimate decision concerning the care of the child, medical consents, school consents, in the event that the parties are unable to reach an agreement, must ultimately rest with one person; and for that reason I do not enter an order of the type you seek to enter. ... what I will do, I will enter an order awarding the primary custody to one parent. I will then enter all of the remaining paragraphs ... and in every respect except that of having the ultimate responsibility rest with one person, it would read identically with the shared parental responsibility provisions of the Legislative act.

Section 61.13(2)(b)2, Florida Statutes (Supp. 1982) states:

The Court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. If the Court determines that shared parental responsibility would be detrimental to the child, the Court may order sole parental responsibility. (Emphasis Added).

The decision of the lower Court is reversed and the cause remanded to permit the trial court to make a finding on the question of whether or not shared parental responsibility would be detrimental to the children in this case.

ORFINGER, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

The problem in this case is solely one of words, context, semantics, and philosophy, not judicial error.

Many persons apparently believe that under section 61.13, Florida Statutes, “shared parental responsibility” is an antonym or the antithesis of child custody and that the statute has abolished the concept of custody. Those persons usually also believe (1) that unless the court first explicitly finds that shared parental responsibility would be detrimental to the child (i.e., that one parent is unfit to have custody), the court must provide that the “primary physical residence” (custody) of the child is to be shared (equally ?) between the parents by rotation or some other form of division; (2) that the trial court should not now refer to "custody” and may not place “custody” of the child or children with one parent; (3) that notwithstanding the trial court’s opinion as to what is in the best interests of a child, the trial court is bound by any agreement the parents may make relating to the child’s physical residence; and (4) that “shared parental responsibility” means that the problem as to where the children are to sleep when the parents cannot agree must be left unaddressed by the court in the original dissolution proceeding.

These are erroneous beliefs founded, in part, on desires of their advocates and, in part, on the fact that often, in times past, the parent given custody, that is, the authority to decide the place of the child’s physical residence, was also given, or usurped, exclusive decision-making authority over most of the important aspects of the child’s welfare. Notwithstanding, custody means merely the safekeeping of something within the personal care and control of the custodian. While in the context of child custody it necessarily connotes certain rights and duties as to matters requiring immediate, moment-to-moment decisions, it does not include exclusive decision-making authority as to major decisions relating to long range matters concerning which there is ample time to consider available alternatives, such as education, religious training, and non-emergency medical and dental care. In fact, as presently worded, section 61.13, Florida Statutes, which provides for “shared parental responsibility,” refers, affirmatively and favorably, seven times to “custody." The statute refers to “child custody dispute” (§ 61.13(3)©); to the “custodial home” (§ 61.13(3)(e)); to the person or persons “awarded custody of the child” (§ 61.13(1)), and refers to the court “determining custody” (§ 61.13(2)(b)l.). The statute states clearly that the court “shall have jurisdiction to determine custody” (§ 61.13(2)(a)); "shall determine ail matters relating to custody” (§ 61.13(2)(b)l.), and “may make such orders about what security is to be given for the care, custody, and support of the minor children” (§ 61.13(4)). The statutory term “primary physical residence” (§ 61.13(2)(b)2.a.) appears to be the equivalent of the proper meaning of the word custody, while the statutory term “sole parental responsibility” (§ 61.13(2)(b)2.b.) appears to approximate what is the erroneous concept of custody. The reciprocal or converse of the term and concept “primary physical residence” would be “secondary physical residence,” which is unmentioned in the statute, but equates with the concept of parental visitation.

From the recorded dialogue between the trial judge and the father’s attorney the trial judge appears to have had the correct impression of these words and terms and the father’s attorney seems to have been advocating the erroneous concepts arguing that “the concept of custody is unfounded in the [shared parental responsibility] law.” With this the trial judge could not agree and, after stating that he would “not enter a shared parental responsibility order” “— of the type you seek to enter,” the trial judge stated, “I am a firm believer in shared parental responsibility. And I encourage the parties in every case to share the responsibilities of parents so that they do not abrogate their responsibilities to their children or the children’s right to both a mother and a father.” The trial judge further stated, “I concur that shared parental responsibility is a beautiful principle and I encourage it [but] I will not enter the order that you seek. ” The trial judge then entered the final judgment in this case with the husband’s attorney saying that the “only objection to it is the one paragraph, numbered five, the first sentence, that provides for a custody award to the wife ....” (emphasis supplied)

In defining “shared parental responsibility” section 61.13(2)(b)2.a., Florida Statutes (1983), explicitly provides in part:

In ordering shared parental responsibility, the court ... may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those aspects between the parties based on the best interests of the child.... Such areas of responsibility may include primary physical residence, education, medical and dental care, and any other responsibilities which the court finds unique to a particular family and/or in the best interests of the child, (emphasis supplied)

Custody provisions of dissolution judgments delineating one parent responsibility as to specific decision making areas of parental responsibility are entirely consistent with this statutory definition of “shared parental responsibility.” Therefore, to make specific allocations or divisions of parental responsibility as to specific items or areas of parental responsibility, including primary physical residence or “custody,” does not require that the trial judge first “determine that shared parental responsibility would be detrimental to the child” as is necessary for the court to order “sole parental responsibility.” See § 61.-13(2)(b)2., Fla.Stat.

In the final judgment in this case, the pertinent portion of which is set forth below, in view of “shared parental responsibilities” language in subparagraphs 5b. through 5f. plus the additional subpara-graphs a. through c., the “care, custody and control” language in the introductory sentence, (which is the only one to which the father objects), is, in legal effect, merely duplicative of the language in subpara-graph 5a. as to the children’s primary residence. That was the intent and understanding of the trial judge expressed in the comments quoted in the majority opinion. If the “care, custody and control” sentence were stricken from the final judgment the legal effect of the final judgment would be unchanged. The final judgment exactly follows the “shared parental responsibility” statute in granting the primary physical residence (i.e., care, custody and control) of the children to one party and in otherwise providing that the responsibility for parental decisions will be shared by both parents. This is an order for “shared parental responsibility” as was the order in Elebash v. Elebash, 450 So.2d 1268 (Fla. 5th DCA 1984), and the order in this case should be affirmed as was the order in Elebash.

No rule of law or procedure requires that a trial court either articulate on record, or make an explicit written finding as to, every essential fact that underlies a legal conclusion and judgment in a case. In making a custody determination the trial court does not have to expressly state its factual finding that “shared parental responsibility” is “detrimental to the child” nor articulate by rote that its decision as to the custody or “primary physical residence” of the children is, in the judge’s opinion, “in the best interest of the children.” When the evidence in a case coupled with the court’s discretion supports the trial court’s conclusion, appellate courts should apply the general rule that trial court determinations are presumed to be correct and assume that the trial court found the essential fact necessary to support its conclusion. In fact, an appellate decision requiring a trial judge to support his decision with factual findings is but an oblique way of not applying the general principle of law that trial court decisions are to be presumed valid and are to be affirmed if supported by facts and law even if no findings are made and even if erroneous reasons are given. This principle was recently recognized by the supreme court of Florida in a domestic relations case, Vandergriff v. Vandergriff, 456 So.2d 464 (Fla.1984), in which the court stated:

We are not prepared to hold, as Judge Nimmons apparently would, that trial judges must support their decisions with factual findings. This would be contrary to the well-established rule that trial court decisions are presumptively valid and should be affirmed, if correct, regardless of whether the reasons advanced are erroneous.

The problem here is that the trial court expressed, emphatically and, unfortunately, on the record his rejection of the husband’s attorney’s erroneous interpretation of the legislature’s intent in passing the shared parental responsibility law. Hopefully the trial judge in this case and others will understand that this case is being reversed because of his comments and not because of his improper interpretation of the shared parental responsibility statute.

      . Such was the apparent understanding of the trial judge whose action was reversed in Strickland v. Wedekind, 436 So.2d 250 (Fla. 5th DCA 1983), in changing custody from the father to the mother not on the basis of a substantial material change in circumstances but merely because the shared parental responsibility statute had been enacted.

      . Paragraph 5 of the Final Judgment of Dissolution of Marriage relates to child custody and provides as follows:

        The care, custody and control of the minor children is awarded to the Wife, (emphasis supplied) Both parents shall confer as often as necessary to afford each opportunities for participation in major decisions affecting the welfare of the children.
      a. The primary residence of the children shall be in the home of the mother as long as it is located within Putnam County, Florida.
      b. The father shall have frequent and continuing contact with the minor children.
      c. The parties shall share all expenses from contact and visitation including travel, child care, entertainment, recreation, and pOrsonal [sic] needs.
      d. The parent with whom the children reside primarily during most of the school year shall have the right to claim the children as dependents for tax purposes.
      e. In a medical emergency either parent may seek reasonable care without the necessity of consent from the other.
      f.Each parent shall act in good faith to encourage unhampered contact and access between the children and the other parent in order to foster love, respect and affection between the children and the other parent. Neither parent shall do anything to estrange, damage or impair the natural development of a parent-child relationship. At all times, each parent should treat the other with civility in the presence of the children.
      Other provisions regarding the minor children are as follows:
      a. Each party shall promptly notify the other of any serious illness, accident, or trauma affecting the children.
      b. The parties shall not attempt to alienate the affection of the children, nor permit any other person to do so.
      c. The parties shall consult and confer regarding all important health and education matters concerning the children.
      [The emphasized sentence is the only one to which the father’s attorney objected.]

      . Many steps in the reasoning of the trial judge may be defective and still his conclusion be correct, and the judgment may be affirmed upon a theory of the case which did not occur to the court that rendered it. Justice Bleckley of Georgia was the first to see the analogy of this legal concept to some lines written by Oliver Goldsmith (1728-1774) in a poem entitled Retaliation [1774], lines 45-48:
      The pupil of impulse, it forc’d him along, His conduct still right, with his argument wrong;
      Still aiming at honour, yet fearing to roam, The coachman was tipsy, the chariot drove home.”

        Lee v. Porter, 63 Ga. 345 (1879), per Bleckley, J., quoted in Office Boy’s Digest 22 (B. Milburn ed. 1904). See also Carraway v. Armour and Company, 156 So.2d 494, 497 (Fla.1963). For this reason in some legal circles this rule of law is known as the "tipsy coachman” rule.

      . This court cannot be sure that the trial judge did not state his ultimate findings of fact at the evidentiary hearing relating to the dissolution and child custody determination because a record of that hearing is not made a part of the record on appeal which consists only of the final judgment and a court reporter transcript of the attorneys’ argument before, and with, the trial judge when the attorneys presented a proposed final judgment to the trial judge.


text:
    Rebecca S. DOYLE, et al., Appellants, v. Charles WILLIAMS, Jr., et al., Appellees.
    No. 83-1517.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.
    Stephen D. Hughes, Largo, for appellants.
    B. Paul Katz, P.A., Daytona Beach, for appellees.
   PER CURIAM.

AFFIRMED. See Mercer v. Raine, 443 So.2d 944 (Fla.1983).

FRANK D. UPCHURCH, Jr., SHARP and COWART, JJ., concur.


author: PER CURIAM. COWART, Judge,

text:
    Wendall J. CHATMAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1591.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.
    James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Fike v. State, 455 So.2d 628 (Fla. 5th DCA 1984).

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

A criminal information must unequivocally allege the facts upon which the court’s jurisdiction is based. When the circuit court has jurisdiction over a felony charge and the county court has jurisdiction over a misdemeanor charge, an information dis-junctively alleging facts charging a felony or a misdemeanor is defective and legally insufficient to invoke the jurisdiction of either court. Young v. State, 439 So.2d 306 (Fla. 5th DCA 1983), and Nelson v. State, 398 So.2d 920 (Fla. 5th DCA 1981), are correct. See the dissent to Fike v. State, 455 So.2d 628 (Fla. 5th DCA 1984).


text:
    Calvin Wallace KIMBLE, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1614, 83-1643.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.

      James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

In 1980 appellant pled guilty to burglary and was placed on probation. On October 18, 1983, appellant was found guilty of violating his probation. Although his original offense was committed before the effective date (October 1, 1983) of the sentencing guidelines, appellant was sentenced after that date, and elected to be sentenced under the guidelines. The trial court ruled that the sentencing guidelines did not apply to this case because the violation of probation occurred prior to the date sentencing guidelines were effective and did not impose the recommended guideline sentence and did not state in writing reasons for imposing a departure sentence. Because of appellant’s election the guidelines were applicable. See Carroll v. State, 454 So.2d 791 (Fla. 5th DCA 1984); Rutlin v. State, 455 So.2d 1347 (Fla. 5th DCA 1984); Mack v. State, 458 So.2d 347 (Fla. 5th DCA 1984).

We have recently held that as to sentence imposed before July 1, 1984, in the exercise of judicial sentencing discretion and when articulated in writing as required by the rules, a violation of probation may serve as a clear and convincing reason for a departure from a guideline sentence. Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984); Neely v. State, 453 So.2d 129 (Fla. 5th DCA 1984); Bodine v. State, 452 So.2d 957 (Fla. 5th DCA 1984); Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984); Maged v. State, No. 83-1705 (Fla. 5th DCA Sept. 20, 1984) [9 FLW 2010]; See also Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984), section 921.-005, Florida Statutes (1983), and the special concurring opinion in Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984).

We affirm the appealed convictions but vacate the sentence in circuit court case number 79-2719 and remand for sentencing to the presumptive or recommended guideline sentence or to a departure sentence imposed in accordance with the sentencing guidelines.

CONVICTIONS AFFIRMED, SENTENCE VACATED AND REMANDED.

SHARP and COWART, JJ., concur.

DAUKSCH, J., concurs in conclusion only.

      . See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983).

      . July 1, 1984, is the effective date the original guidelines were amended to cause a violation of probation to become a factor involved in the computation of a presumptive or recommended sentence under the guidelines. See Ch. 84-328, Laws of Florida, and The Florida Bar: Amendment to the Rules of Criminal Procedure (3.701; 3.988 — (Sentencing Guidelines), 451 So.2d 824 (Fla.1984).


author: SHARP, Judge. COWART, Judge,

text:
    Sylvester MORMAN, Appellant, v. STATE of Florida, Appellee.
    No. 84-331.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.
    Sylvester Morman, pro se.
    No appearance for appellee.
   SHARP, Judge.

We affirm the trial court’s denial of Mor-man’s motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 because the result is correct, although the basis given for the denial is erroneous. Morman’s pro se rule 3.850 motion alleged he was convicted of robbery (Count I) and also of being an accessory after the fact of the same robbery (Count II). He argues it was a violation of his double jeopardy rights, U.S. Const, amends. V & XIV; Fla. Const, art. I, § 9, to be convicted of both crimes, and that his attorney who failed to advise him of these rights prior to his entering a guilty plea to both crimes, was incompetent. Chapman v. State, 389 So.2d 1065 (Fla. 5th DCA 1980).

However, we do not think double jeopardy is involved in this context. An accessory after the fact contains a completely different bundle of elements than the crime of robbery. Section 777.03, Florida Statutes (1983), provides:

Whoever, not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to the offender, maintains or assists the principal or accessory before the fact, or gives the offender any other aid, knowing that he had committed a felony or been accessory thereto before the fact, with intent that he shall avoid or escape detection, arrest, trial or punishment, shall be deemed an accessory after the fact, and shall be guilty of a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.

To commit such a crime it must be proved that the defendant aided or assisted another person to commit a crime, or to escape detection, arrest, trial or punishment. Clearly a person cannot aid and abet himself to commit a crime. Conviction for such a fact situation would be a violation of due process because it would be a non-existent crime. State v. Sykes, 434 So.2d 325 (Fla.1983).

However, Morman’s allegations in this case and the records furnished to us are insufficient to raise this issue because we cannot ascertain whether there was more than one robber or principal involved in his criminal activity. Conceivably if there were two robbers, and if Morman later aided his co-robber to avoid or escape detection, he could be convicted for both robbery and for being an accessory after the fact. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Gibson, 452 So.2d 553 (Fla.1984).

Our affirmance in this case is without prejudice to Morman to file another rule 3.850 motion properly raising the due process issue, if it is applicable.

AFFIRMED.

DAUKSCH, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

This is an appeal from an order denying a motion for post conviction relief under Florida Rule of Criminal Procedure 3.850 entered without an evidentiary hearing and without attaching to the order any files and records from which it can be conclusively determined that the petitioner is entitled to no relief. Under this rule this action is proper only when such denial is predicated on the legal insufficiency of the motion on its face.

While inartfully drawn, Morman’s pro se 3.850 motion alleges that he was convicted of the offense of robbery (count one) and also, in count two of the same information, of Accessory after the Fact of the same robbery. He contends that he cannot be both principal and accessory as to one and the same offense. If, as asserted, counts one and two did in fact relate to the same offense, then Morman’s contention is correct because a principal in the commission of a crime cannot also be guilty of being an accessory to the same crime by aiding himself or his co-perpetrator to avoid or escape detection or arrest. However the record on this appeal is insufficient to determine whether both convictions in fact relate to the same offense. The order of the trial court denying Morman’s 3.850 motion without a hearing does not attach the original charging document or other files and records in the case from which it can be conclusively determined that Morman’s assertion is incorrect and that he is entitled to no relief. In fact the order denying relief implies that Morman’s assertion is correct in that it states that the defense of former jeopardy was waived by the entry of a plea of guilty, citing Johnson v. State, 299 So.2d 155 (Fla. 3d DCA 1974). However, Morman’s 3.850 motion alleges that he pled guilty “ill-advised” of his double jeopardy rights and of the effect of his plea of guilty as to those rights and requests that he be allowed to withdraw his guilty plea. Although he does not use the magic words “ineffective assistance of counsel,” that is the substance of his claim, and in view of the lack of a record showing sufficient to negate his assertion and claim he should have an evidentiary hearing.

The majority opinion states that the allegations in Morman’s 3.850 motion were insufficient to raise the due process issue of whether Morman could be convicted of both robbery and accessory after the fact of the same robbery. The majority opinion then addresses that question and holds as a matter of law that, if Morman was one of two robbers, by aiding his co-robber to avoid or escape detection or arrest Morman could be convicted of robbery and accessory after the fact of the same robbery. The majority opinion then affirms the denial of an evidentiary hearing without prejudice to Morman raising the due process issue in a subsequent 3.850 motion. I do not agree with this holding but even under it, under Rule 3.850 Morman would be entitled to an evidentiary hearing in this case (and this case should be reversed and remanded for that purpose) unless the files and records which are required to be attached to every order denying an evidentiary hearing, show that Morman was convicted as an accessory by aiding a co-robber to avoid or escape detection or arrest. They do not.

This ease should be reversed and the trial court directed to either attach files and records refuting Morman’s assertion that his conviction as accessory after the fact related to the same crime for which he was convicted as a principal, to hold an evidentiary hearing, or to vacate his conviction as accessory after the fact.

      . See generally 1 Wharton’s Criminal Law § 33 at 171 (14th Ed.1978). “Since an accessory after the fact renders aid to a felon after the underlying felony has been completed, he cannot be regarded as having caused the felony to be committed. Nevertheless, the accessory after the fact is regarded by the common law as a party to the underlying felony, even though it is obviously impossible for his mens rea to be the same as that of the felon whom he aids.” Id.

      . Cases are legion which hold that where a 3.850 motion is not insufficient on its face, and the trial judge has not attached relevant portions of the case file or record conclusively showing that the prisoner is entitled to no relief, the matter will be remanded for the trial court to either attach the appropriate portions of the record or to conduct an evidentiary hearing. See, e.g., Williams v. State, 447 So.2d 442 (Fla. 5th DCA 1984); McMillian v. State, 411 So.2d 1372 (Fla. 5th DCA 1982); Brown v. State, 409 So.2d 129 (Fla. 5th DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981); Wade v. State, 402 So.2d 534 (Fla. 5th DCA 1981); Benton v. State, 401 So.2d 1114 (Fla. 5th DCA 1981); Stephens v. State, 399 So.2d 1106 (Fla. 5th DCA 1981); Young v. State, 397 So.2d 1159 (Fla. 5th DCA 1981); Brown v. State, 390 So.2d 447 (Fla. 5th DCA 1980); Battle v. State, 388 So.2d 1323 (Fla. 5th DCA 1980).


author: GRIMES, Acting Chief Judge.

text:
    Gerald Albert TOBEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-895.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1984.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant complains that the trial court erred in refusing to allow him to withdraw his guilty pleas.

Pursuant to a plea bargain, appellant pled guilty to one count of attempted sexual battery and one count of procuring a minor to perform in sexually oriented motion pictures. Prior to accepting appellant’s guilty pleas, the trial court conducted an extensive inquiry into the basis for the pleas and the voluntariness of the pleas. The trial court stated:

I have agreed, should you plead guilty, to order a presentence investigation and to sentence you under the sentencing guidelines. I do not know what they are at this time, but whatever they are, your sentence will fall within it.

At no time during the plea colloquy was the actual length of appellant’s sentence discussed.

At the sentencing hearing, defense counsel objected to the presentenee investigation report as being deficient and biased. He also urged that appellant should be allowed to withdraw his pleas because the assistant state attorney had previously represented to defense counsel that appellant’s presumptive sentence under the guidelines would be thirty-six months imprisonment, whereas the guideline range actually called for five and one-half to seven years. Defense counsel said he had told appellant that his sentence under the guidelines would be thirty-six months and that appellant entered his pleas on this basis. In response, the assistant state attorney admitted discussing the “likelihood” of such a sentence based on his knowledge of appellant’s prior record. While the assistant state attorney also explained that often his office is not aware of a defendant’s full criminal background at the time the plea is entered, appellant’s one prior conviction had already been disclosed when he entered his pleas. The trial court refused to allow the appellant to withdraw his pleas, stating that the only agreement made with appellant was to sentence him pursuant to the guidelines. The appellant was subsequently sentenced to two concurrent terms of seven years imprisonment.

When a defendant moves to withdraw his plea of guilty, the court should be liberal in exercising its discretion to permit the withdrawal, especially where it is shown that the plea was based on a failure of communication or a misunderstanding of the facts. Richardson v. State, 432 So.2d 750 (Fla. 2d DCA 1983). Such a situation may arise where the attorney for a defendant misrepresents to him the consequences of his plea. Costello v. State, 260 So.2d 198 (Fla.1972); Brown v. State, 245 So.2d 41 (Fla.1971); Folske v. State, 430 So.2d 574 (Fla. 5th DCA 1983).

In Banks v. State, 136 So.2d 25 (Fla. 1st DCA 1962), our sister court outlined the facts upon which a plea of guilty was entered:

From a careful examination of the testimony offered by the Assistant State Attorney and counsel for appellant, it is clearly apparent that appellant was persuaded to and did in fact withdraw his plea of not guilty to the charge against him, and entered his plea of guilty to aggravated assault entirely as a result of an honest mistake, misunderstanding or misapprehension which occurred between his counsel and the Assistant State Attorney. From the evidence it appears without any serious question that appellant would not have changed his plea of not guilty to that of guilty except for the understanding of his attorney, erroneously as it may have been, that under the circumstances in the case defendant would be placed on probation and not sentenced to serve a term of imprisonment. The record does not reveal the slightest indication of trickery, fraud or overreaching on the part of either of the attorneys in the case. It is equally clear that the trial judge made no previous commitment as to what disposition he would ultimately make of the case prior to the time sentence was imposed.

136 So.2d at 26-27. The court concluded that because of the misunderstanding, the defendant should be permitted to withdraw his plea.

In the instant case, there is no suggestion that the court failed to honor the plea bargain. The problem arises from the fact that appellant’s pleas were based on a failure of communication or misunderstanding between defense counsel and the assistant state attorney. The appellant should not be penalized for this honest misunderstanding. As in Banks, the ends of justice will best be served by allowing appellant to withdraw his pleas. The state may, of course, reinstate the original charges, one of which was lowered pursuant to the plea bargain.

Accordingly, we reverse appellant’s judgments and sentences and remand the case for further proceedings.

SCHEB and DANAHY, JJ., concur.


text:
    Boyd Earl GILBERT, Appellant, v. STATE of Florida, Appellee.
    No. 83-1884.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed and remanded for new trial on the authority of Richardson v. State, 246 So.2d 771 (Fla.1971); Cumbie v. State, 345 So.2d 1061 (Fla.1977).

ANSTEAD, C.J., and LETTS and HURLEY, JJ., concur.


text:
    Lemoris KELLEY, a/k/a Lamar Kelley, Appellant, v. STATE of Florida, Appellee.
    No. 83-2447.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Richard L. Jorandby, Public Defender, Ellen Morris and Richard B. Greene, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, James P. McLane and Joan Fowler Rossin, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

It appearing that both the acts constituting a violation of probation and commencement of the revocation proceedings which led to the order revoking probation appealed here occurred well beyond termination of the probationary period, we reverse and direct that appellant be discharged. Kimble v. State, 396 So.2d 815 (Fla. 4th DCA 1981); Gardner v. State, 412 So.2d 10 (Fla. 2d DCA 1981).

REVERSE.

LETTS, HERSEY and GLICKSTEIN, JJ., concur.


text:
    Essie FIELDS, Appellant, v. STATE of Florida, Appellee.
    No. 84-73.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Robert D. Jones of Fuchs & Jones, Royal Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Zeigler v. State, 402 So.2d 365 (Fla.1981); Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980).

ANSTEAD, C.J., and LETTS and HURLEY, JJ., concur.


text:
    Elissa ROSS, Appellant, v. Howard B. HOPPENHEIM and Pierre Martin, as Partners of Hoppenheim, Martin & Associates, a Canadian partnership, and Misener Financial Corporation, a Canadian corporation, Appellees.
    No. 84-332.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Michael P. Gable, Miami, for appellant.
    James R. Merola of Levy, Shapiro, Kneen & Kingcade, P.A., Palm Beach, for appellees.
   PER CURIAM.

We reverse the trial court’s order dismissing appellant’s counterclaim. Although the counterclaim may be poorly drafted, and amendments may be necessary in order for appellant to set out a claim superior to that of appellees, we believe she has sufficiently set out a claim as to the personal property involved to require a responsive pleading and she should be allowed leave to amend her claim as to the real property involved.

Accordingly, we reverse and remand for further proceedings in accord herewith.

ANSTEAD, C.J., and DELL and WALDEN, JJ., concur.


text:
    Eileen HEIM, Appellant, v. William MARKHAM, as Property Appraiser, et al., Appellees.
    No. 84-392.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Eileen Heim, pro se.
    Harry Stewart and Alexander Cocalis, Gen. Counsel, Claudette A. Pelletier and Gaylord A. Wood, Jr., Fort Lauderdale, for appellees.
   PER CURIAM.

Affirmed on the authority of Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

ANSTEAD, C.J., and HURLEY and DELL, JJ., concur.


text:
    Jeffery Glen BRADLEY and One Chevrolet El Camino Truck, Appellant, v. STATE of Florida, Appellee.
    No. 84-653.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Catherine M. Brunson, Delray Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Marks v. State, 416 So.2d 872 (Fla. 5th DCA 1982).

ANSTEAD, C.J., and LETTS and HURLEY, JJ., concur.


text:
    Alberta EDWARDS, as Personal Representative of the Estate of Lenon Edwards, deceased, Appellant, v. MONARCH DODGE, INC., etc., et al., Appellees.
    No. 84-785.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Akhtar Hussain, Miami, for appellant.
    Michael D. Stewart of Michael D. Stewart, P.A., Fort Lauderdale, for appellee, Monarch Dodge, Inc.
    James C. Cunningham, Jr., of Shutts & Bowen, Miami, for appellee, Atlantic Nat. Bank.
    Carl E. Jenkins of Walton Lantaff Schroeder & Carson, Fort Lauderdale, for appellee, Chrysler Corp.
   PER CURIAM.

We reverse on the authority of Aller v. Editorial Planeta, S.A., 389 So.2d 321 (Fla. 3d DCA 1980), and Bernuth Marine Shipping, Inc. v. Integrated Container Service, Inc., 369 So.2d 424 (Fla. 3d DCA 1979).

REVERSED AND REMANDED.

GLICKSTEIN, HURLEY, and BARK-ETT, JJ., concur.


text:
    CORAL REEF LEASING, INC., Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.
    No. 84-878.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Rick J. Burgess of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Laud-erdale, for appellant,
    Marcia E. Levine of Fazio, Dawson & DiSalvo, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed on the authority of Excelsior Insurance Company v. Pomona Park Bar & Package Store, 369 So.2d 938 (Fla.1979).

ANSTEAD, C.J., and LETTS AND HURLEY, JJ., concur.


text:
    SOLITRON DEVICES, INC., Petitioner, v. VEECO INSTRUMENTS, INC., Respondent.
    No. 84-1414.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Gary N. Gerson and Kenneth A. Marra of Nason, Gildan, Yeager & Gerson, P.A., West Palm Beach, for petitioner.
    T.M. Barlow of Crofton, Holland, Starling, Harris & Severs, Titusville, for respondent.
   PER CURIAM.

We deny the petition for certiorari on the authority of Mercer v. Raine, 443 So.2d 944 (Fla.1983) and Erie Winds, N.V. v. Crab Pot Oceanside, Inc., 449 So.2d 426 (Fla. 4th DCA 1984).

Denied.

LETTS, GLICKSTEIN and DELL, JJ., concur.


text:
    Gary R. GINSBERG, Appellant, v. AMERICAN BANK OF MARTIN COUNTY, a Florida banking corporation, and Beth Ellen Segali, Appellees.
    No. 84-1531.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.

      John G. White, III, of Levy, Shapiro, Kneen & Kingcade, Palm Beach, for appellant.
    James A. Bond, Stuart, for appellee.
   PER CURIAM.

The complaint of American Bank failed to plead sufficient facts so as to establish jurisdiction over Ginsberg, a Connecticut resident, under Florida’s long arm statute, Section 48.193, Florida Statutes (1983). Hickok Teaching Systems, Inc. v. Equitech Training Systems, Inc., 421 So.2d 772 (Fla. 4th DCA 1982); and Cosmopolitan Health Spa, Inc. v. Health Industries, Inc., 362 So.2d 367 (Fla. 4th DCA 1978). Thus, it was error to deny Ginsberg’s motion to abate/quash.

Reversed.

LETTS, DELL and WALDEN, JJ., concur.


text:
    Jerry BOYCE, Appellant, v. STATE of Florida, Appellee.
    No. 84-570.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 1984.
    James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen. Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Maged v. State, 455 So.2d 1153 (Fla. 5th DCA 1984); Neely v. State, 453 So.2d 129 (Fla. 5th DCA 1984; Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984).

COBB, C.J., and FRANK D. UP-CHURCH, Jr. and SHARP, JJ., concur.


text:
    Cheynee Dexter WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 80-923.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
   BY ORDER OF THE COURT:

ORDERED that Appellant’s December 6, 1982 Motion for Rehearing and/or Clarification is denied. See 421 So.2d 810 (Fla. App. 4 Dist.1982) and 427 So.2d 1143 (Fla. App. 4 Dist.1983).


author:
CALOGERO, Justice.
      LEMMON, Justice,

text:
    STATE of Louisiana v. Junius TERRY.
    No. 84-KP-0594.
    Supreme Court of Louisiana.
    Oct. 15, 1984.
    Rehearing Denied Nov. 15, 1984.
    Dissenting Opinion Nov. 19, 1984.
    Louis A. Heyd, Jr., New Orleans, for applicant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Dorothy A. Pender-gast, Louise Korns, William C. Credo, III, Abbott Reeves, Asst. Dist. Attys., for respondent.
   CALOGERO, Justice.

The issue presented in this case is whether a guilty plea conviction, once set aside by the trial court, can be reinstated by the sua sponte action of the trial court, after the defendant has been returned to the court’s jurisdiction by the state, been re-arraigned on the original charge, and, without a protest by the state, been allowed to enter a plea of not guilty to the reinstated charge.

The circumstances giving rise to this rather unusual situation are as follows. On February 10, 1977, defendant Terry withdrew his former plea of not guilty and entered a plea of guilty to a charge of armed robbery, a violation of La.R.S. 14:64. He was sentenced to a term of 30 years imprisonment, without benefit of parole, probation or suspension of sentence. Soon after defendant began serving his term in the State Penitentiary at Angola, he began petitioning for post-conviction relief, contending, among other things, that his plea had been an unknowing one because of the court’s failure to advise him fully with respect to the rights he waived upon entering the plea.

Defendant’s latest post-conviction petition was filed in the district court on October 17, 1983, and was allotted to Judge Clarence E. McManus. The application for relief was grounded upon claims that defendant’s 1977 plea was not an intelligent one, for the reason that he was not fully advised with respect to his privilege against self-incrimination. Thus, he contended that he had not knowingly waived his constitutional rights upon entering his plea. He asked that the plea and conviction be set aside and that he be allowed to plead anew. As required by law (La.C. Gr.P. art. 926(D) & La.Sup.Gt. Rule XXVII), this October 17, 1983 application contained the following request: “Please Serve CUSTODIAN and JOHN MAMOUL-IDES, DISTRICT ATTORNEY, 24th JUDICIAL DISTRICT, STATE OF LOUISIANA.”

On November 17, 1983, the trial judge ruled on defendant’s petition, without an answer from the state, granting defendant the relief requested and vacating his guilty plea conviction and sentence. In his written reasons for judgment, the trial judge found that there had been no specific in court advisement, by the trial judge who accepted the plea, with respect to the privilege against self-incrimination and, in the absence of. his attorney’s signature on the guilty plea form, the record failed to show that the defendant had been so advised out of court either. Relying on State v. Halsell, 403 So.2d 688 (La.1981) and State v. Williams, 400 So.2d 868 (La.1981), the trial court found the record insufficient to support a valid waiver of rights upon entry of the guilty plea. Accordingly, the trial court set aside the 1977 guilty plea conviction and sentence, appointed the Indigent Defender Board as Counsel and ordered defendant returned from Angola for re-arraignment. This order, too, bears the inscription “PLEASE SERVE: Mr. John Mamoulides, District Attorney, Parish of Jefferson.”

The state took no action to block or oppose the relief ordered by the trial court. Rather, apparently acquiescing in the order, the state filed two petitions for “Writs of Habeas Corpus Ad Prosequendum” (one on November 22, 1983, 5 days after the order granting relief, and the other on December 2, 1983) in order to effect defendant’s return from Angola. And, on January 9, 1984, defendant appeared with appointed counsel and was arraigned anew on the armed robbery charge. Defendant entered a plea of not guilty and was given 15 days to file appropriate motions. Bail was also set at this time.

Just four days later, however, on January 13, 1984, Judge McManus, apparently of his own accord, upset his November 17th ruling (in which he had vacated defendant’s guilty plea conviction and sentence), stating:

IT IS ORDERED that the order of this Court of November 17, 1983, be and the same is hereby vacated, and that defendant, Junius Terry, be brought before this court on the 1st day of February, 1984, for a hearing to determine whether he should be granted a new trial.

On February 21, 1984, an evidentiary hearing was held before Judge McManus. At the conclusion of the hearing, the trial court deferred ruling and took the matter under advisement. The following month, on March 14, 1984, Judge McManus issued a third order in this case, this time denying defendant’s application for post-conviction relief. In pertinent part, this order states:

After a careful examination of the entire record and the testimony heard at the evidentiary hearing, the Court finds that defendant was properly advised by the court and that the record reflects a knowing and voluntary waiver of his privilege against self-incrimination.

It is from this ruling that defendant is now before us, his writ application having been granted on June 1, 1984. State v. Terry, 450 So.2d 962 (La.1984).

Defendant argues that the trial court erred on January 13th when, apparently acting sua sponte, it reversed the earlier November 17th ruling in which the court had ordered defendant’s guilty plea conviction and sentence set aside. Defendant argues that once the conviction was vacated, it could not be revived.

The state, on the other hand, contends that because the November 17th ruling was not issued in conformity with the Code of Criminal Procedure articles governing post-conviction actions (particularly C.Cr.P. art. 927, which allows the state an opportunity to answer), it was a nullity. Accordingly, the state argues that defendant’s conviction was never properly vacated.

The rules on post-conviction relief are set out in La.C.Cr.P. arts. 924 et seq. Pertinent to the case before us, La.C.Cr.P. art. 927 provides:

If an application [for post-conviction relief] alleges a claim which, if established, would entitle the petitioner to relief, the court shall order the custodian, through the district attorney in the parish in which the defendant was convicted, to file an answer within a specific period not in excess of thirty days.
If the court orders an answer filed, the court need not order production of the petitioner except as provided in Article 930.

In the instant case, the trial court, as provided in La.C.Cr.P. art. 927, did not order the state to answer defendant’s petition for post-conviction relief, and no answer was in fact filed, before rendition of the judgment granting the relief prayed for. Nonetheless, contrary to the state’s argument, that does not render the November 17th judgment a nullity.

This Court has consistently held that “a trial court’s vacation of a conviction, even if beyond its authority, effectively and conclusively invalidates the verdict thus invalidated.” State v. Neames, 377 So.2d 1018 (La.1979); State v. Reed, 315 So.2d 703 (La.1975); State v. Oglesby, 164 La. 329, 113 So. 865 (1927). Furthermore, these articles of the Code of Criminal Procedure on post-conviction relief merely implement the Constitutionally authorized right, of a court, to issue the writ of habeas corpus. La. Const, art. I, § 21 & art. V, § 2. Additionally, the statute (La.C.Cr.P. art. 927), which provides that the state be allowed to file an answer, was enacted to allow the trial court to rule on the post conviction pleadings, without bringing the petitioner to court as had formerly been required. The purpose of its adoption was not for it to serve as a prerequisite to the court’s exercise of its Constitutional authority. C. Joseph, Postconviction Procedure, 41 La.L.Rev. 625 (1981).

Accordingly, the November 17, 1983 judgment, vacating defendant’s guilty plea conviction and sentence was valid, although subject to appellate review. The remedy of the state, if aggrieved, was to seek writs from that judgment. The state no doubt received notice of the judgment and did not seek writs. Instead, in apparent acquiescence in the judgment, the state secured defendant’s return from Angola and, represented by an assistant district attorney, made no objection at defendant’s arraignment, on January 9, 1984. At that time defendant entered a plea of not guilty and bail was set. Over this 2 month period (from November 17, 1983 when judgment was rendered awarding defendant his post-conviction relief, until the January 9, 1984 arraignment) the state never once complained of the trial court’s earlier action granting defendant the post conviction relief he had prayed for.

The trial court clearly had jurisdiction over the person of defendant and the subject matter of his application. La.C. Cr.P. arts. 16, 17 & 925; cf., State ex rel. Becnel v. Blackburn, 410 So.2d 1015 (La.1982). The court did not lose that jurisdiction simply because it did not order the state to answer to defendant’s petition. La.C.Cr.P. arts. 16 & 17. If the state had any objection to the court’s November 17th ruling, its remedy was to seek writs from the ruling. In failing to do so, and in going forward with the reinstated charges, the state waived any objection it may have had to the trial court’s November 17, 1983 judgment vacating defendant’s guilty plea conviction and sentence. Accordingly, that judgment became final and the later attempt to reverse it (by the trial court’s sua sponte ruling of January 13, 1984) was without effect. State v. Neames, supra; State v. Reed, supra; State v. Oglsby, supra.

Decree

For the foregoing reasons the trial court judgment of January 13, 1984 and its March 14, 1984 judgment as well, are reversed and set aside; the trial court judgment of November 17, 1983, vacating defendant’s guilty plea conviction and ordering him arraigned anew, and tried should he plead not guilty, is reinstated; the case is remanded to the district court for further proceedings.

JUDGMENTS OF JANUARY 13, 1984 AND MARCH 14, 1984 REVERSED; JUDGMENT OF NOVEMBER 17, 1983 REINSTATED; REMANDED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

The statutory scheme for applications for post-conviction relief in Louisiana is contained in La.C.Cr.P. Art. 924 and following. Article 928 authorizes the trial judge, immediately upon the filing of the application for postconviction relief, to deny relief without a hearing and without notice to the district attorney, if the application fails to state a claim upon which relief may be granted. However, the trial judge has no authority to grant an application for post-conviction relief without ordering the district attorney to answer. Indeed, Article 927 A provides:

“If an application alleges a claim which, if established, would entitle the petitioner to relief, the court shall order the custodian, through the district attorney in the parish in which the defendant was convicted, to file an answer within a specified period not in excess of thirty days.”

Thus, the overall scheme does not require an answer in response to a mere filing of the application, which may be (and frequently is) dismissed on the pleadings. An answer is required, however, when the application is not denied outright, and the obvious purpose is to afford the state an opportunity to be heard pursuant to the order to file an answer. Nevertheless, the district attorney need not file an answer until the court issues the required order.

In the present case, the district attorney asserts that his office was never ordered to answer, as required by Article 927, and the record contains no contrary evidence. Therefore, the district attorney clearly would have been entitled to have the trial court set aside the ex parte order granting postconviction relief if he had applied immediately upon learning of the rendition of that order.

Thus, the key issue here is whether the district attorney’s failure to take immediate steps to seek review constitutes a “waiver” of the district attorney’s right to contest the legality of the order granting postcon-viction relief and precludes the trial judge from acting on his own motion to vacate the illegally granted order.

Someone in the district attorney learned at some point of the trial judge’s order vacating the conviction and scheduled an arraignment. Because of the volume of cases handled by that office, it is understandable that the validity of every order is not researched. The district attorney’s initial actions in apparent compliance with the trial court’s order should not preclude the trial court from acting on its own to vacate the illegally issued order, unless the defendant shows that he suffered some prejudice from the state’s delay in raising a prompt complaint, especially since the state was not provided the legislatively-required opportunity to respond to defendant’s application. Since no prejudice to the defendant has been even suggested, I would affirm the judgments of the trial court.

      . The transcript of the guilty plea proceedings indicates that the trial judge did not advise defendant of his privilege against self-incrimination. While the guilty plea form defendant signed did contain such an advisement, it also contained a section for the attorney to sign providing that he had "informed the defendant of his or her rights," and defendant’s attorney had not signed the form.

      . A writ of habeas corpus ad persequendum is defined as ”[a] writ which issues when it is necessary to remove a prisoner in order to prosecute in the proper jurisdiction wherein the fact was committed." Black's Law Dictionary 837 (4th ed. 1968) (Emphasis in the original.)

      . In attendance at the arraignment before the trial judge were the assistant district attorney, defendant and his appointed counsel. Bail was also set at $500,000.00.

      . The record offers no reason why Judge McMa-nus took this action.

      .Defendant sought writs in both the Court of Appeal and this Court from the January 13th ruling. However, both courts declined to exercise their supervisory jurisdiction, finding it unnecessary to do so at that time, with an eviden-tiary hearing forthcoming, scheduled for February 21, 1984.

      . While the state asserts that it was not properly served with the November 17, 1983 judgment (and this may or may not be true — the order itself contains the notation "PLEASE SERVE: John Mamoulides, District Attorney, Parish of Jefferson"), they can hardly contend that they were not notified, for just 5 days after rendition of the November 17, 1983 judgment, on November 22, 1983, and again on December 2, 1983, the state filed writs of habeas corpus ad prose-quendum to secure the defendant’s return from Angola, presumably to commence the re-prosecution of defendant, as ordered by the November 17, 1983 judgment.

      . The trial court's granting of summary relief under the circumstances was clearly invalid. Article 929, which authorizes summary disposition, clearly envisions such actions only after the state has been ordered to file an answer and has been afforded the opportunity to do so.
      I especially disagree with the implication in this opinion and in State v. Neames, 377 So.2d 1018 (La.1979), that postconviction relief, once granted, may not be set aside by the trial court. There is no authority whatsoever for such a proposition, and basic notions of criminal procedure are contrary to such a concept.

      . Silence seldom forms a valid basis for a determination of waiver of rights. Even more basic in this case, however, is the fact that there is no showing that the district attorney was ever notified that the order granting the postconviction relief had been issued.