author: ANSTEAD, Chief Judge.

text:
    STATE of Florida, Petitioner, v. Robert KAUFMAN, Respondent.
    No. 84-1173.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Douglas N. Duncan of Foley, Colton & Duncan, P.A., West Palm Beach, for respondent.
   ANSTEAD, Chief Judge.

Relying upon this court’s prior opinions in Cookish v. State, 416 So.2d 53 (Fla. 4th DCA 1982) and Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980), the state seeks to quash an order of the trial court directing the state to show cause in writing why the respondent’s motion for post-conviction relief based on allegations of ineffective assistance of counsel should not be granted. We decline to grant the petition.

Florida Rule of Criminal Procedure 3.850 provides in part:

A prisoner in custody under sentence of a court established by the laws of Florida claiming the right to be released upon the ground that the judgment was entered or that the sentence was imposed in violation of the Constitution or Laws of the United States, or of the State of Florida, or that the court was without jurisdiction to enter such judgment or to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or that his plea was given involuntarily, or the judgment or sentence is otherwise subject to collateral attack, may move the court which entered the judgment or imposed the sentence to vacate, set aside or correct the judgment or sentence.,
If the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief, the motion shall be denied without a hearing. In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

The state takes the position that before the trial court can direct the state to respond to a motion for post-conviction relief the court itself must first exhaustively review all available files and records and make a determination that those materials do not conclusively negate the allegations of the motion. We cannot agree.

The trial court determined that respondent’s allegations of ineffective assistance of counsel, largely predicated on obviously non-record actions or the lack thereof by respondent’s counsel, appeared to state a preliminary basis for relief; and the state was ordered to file a written response showing cause why the petition should not be granted. Instead, the state filed a “Motion to Dismiss” the order to show cause, insisting that the court inspect all the records in the case itself before requiring the state to respond. In response the trial court entered the following order:

The State urges that Rule 3.850 requires the Court to review the files and records in the case to determine whether the Defendant is entitled to relief prior to issuing a Show Cause Order to the State Attorney requiring a response to the motion for post-conviction relief. In support of its position, the State cites cases holding that when the trial court denies a motion for post-conviction relief without requiring a response from the State Attorney it must attach the portions of the record which conclusively show that the Defendant is not entitled to relief, see Cookish v. State, 416 So.2d 53 (Fla. 4th DCA 1982). From these cases the State reasons that the trial court is therefore required to review the record in all cases where motions for post-conviction relief are filed and affirmatively conclude that the files and records in the case support the motion before ordering the State Attorney to respond to the motion.
The Court finds no such requirement in Rule 3.850 and specifically rejects this reasoning. The purpose in requiring the trial court to attach the portions of the record which support an ex-parte denial of the motion is to insure that the motions receive due consideration before they are denied and that the Appellate Court has a sufficient record to review the trial court’s ex-parte denial. It does not follow that the trial court is therefore required to review the entire record in all cases where a motion for post-conviction relief is filed and conclude ex-parte that the motion is well founded prior to requiring a response on behalf of the State. If the State believes that the motion is insufficient, it may file a motion to dismiss or to strike the motion for post-conviction relief.

We agree with the trial court’s observations and order.

Neither of the cases cited by the state, Jones and Cookish, involved the trial court’s authority to direct the state to respond to a motion for post-conviction relief. It is true that both cases did involve this court’s attempt to clarify, for the benefit of the same trial judge, the requirements of Rule 3.850 especially as it pertains to the facilitation of meaningful appellate review of post-conviction proceedings. In Cookish, this court, after having earlier directed the trial court to either conduct an eviden-tiary hearing or attach portions of the record supporting a denial of defendant’s claim, again reversed an inadequate order and explained an apparent misunderstanding on the part of the trial judge that the record upon which the trial judge was apparently relying was not on file in this court as the result of an earlier appeal. If anything, the Cookish decision, by directing the court to either conduct an eviden-tiary hearing or attach portions of the record, is contrary to the state’s position here that an exhaustive review of the record by the trial court must always precede an evidentiary hearing and the obvious participation of the state therein, since an evidentiary hearing was directed without mandating a prior examination of the record.

In Jones, the same trial judge who was involved in Cookish denied a motion based upon allegations of ineffective assistance of counsel explicitly upon the basis of record activities but failed to attach those portions of the record to the order denying relief as expressly required by Rule 3.850. Once again the opinion of this court reflected an effort to resolve a misunderstanding as to proceedings under Rule 3.850 and appellate review thereof. It is true that this court noted that the trial court may, in some instances, have to review the record and attach portions thereof to orders denying relief. After noting the trial court’s erroneous assumption that the issue of ineffective assistance of counsel had been resolved in an earlier appeal, this court concluded that the defendant had made allegations of ineffective assistance of counsel which required an evidentiary hearing. The net result of the Jones decision, however, was that an evidentiary hearing was directed to be held on the allegations of ineffective assistance of counsel, notwithstanding that the trial court had detailed record matters justifying the denial of the motion and that this court had no opportunity to review those record matters. Again, as in Cookish, this ruling is actually contrary to the state’s contention here that its participation in post-conviction relief proceedings cannot be required until and unless the trial court first exhaustively examines the record.

We agree that Rule 3.850 attempts to simplify the procedures for considering applications for post-conviction relief and to minimize the use of our full-blown adversary system in resolving the issues raised in such an application. The rule does contemplate that the trial court itself, usually without the intervention of counsel for either side, since most such petitions are filed by the defendant personally, consider the sufficiency of the allegations to state a cause of action for post-conviction relief. Many times the trial court will be able to quickly determine whether the allegations are facially inadequate, as in the case, for instance, when issues are raised that could and should have been raised on direct appeal; or adequate, as in the case where ineffective assistance of counsel is alleged in accord with the decision in Knight v. State, 394 So.2d 997 (Fla.1981). In addition, the allegations of the petition may be such that the trial court, especially when the same trial judge who tried the case considers the petition, may, by review and reference to the record, quickly determine the validity of the allegations. For instance, a defendant may assert that his plea of guilty was involuntary because he was never informed of the consequences of the plea. A quick examination of the transcript of the plea hearing may directly refute this allegation and, when copies of the plea transcript are attached to the order denying relief, also furnish an appellate court with the means to properly review the actions of the trial court.

Notwithstanding that the trial court may determine the adequacy of the petition or the merits thereof in the ways just outlined, there will be instances, especially in claims alleging ineffective assistance of counsel in ways not easily determinable by a quick review of the record, where the trial court, after determining that the petition is facially sufficient, may properly require the state to respond to the petition before actually directing an evidentiary hearing. Indeed, this requirement may result in the disclosure of information or assertions by the state that will make an evidentiary hearing unnecessary. Likewise such a procedure may narrow or sharpen the issues to be resolved at a hearing and thereby facilitate their prompt resolution. We must not lose sight of the fact that we have an adversary system of justice as opposed to an inquisitorial system that is prevalent in the civil law nations where the courts have a great deal more responsibility in both the investigation and trial of the cases. Under our system, even in its modified form under Rule 3.850, the court must rely on the parties to initiate the proceedings, make the assertions and counter-assertions of law and fact, and present to the court the evidentiary basis for those assertions.

Unless its authority is specifically restricted, a court has the inherent power to require the participation of the parties in the resolution of the issues before the court. We do not believe the provisions of Rule 3.850 were intended to restrict this authority in the manner now suggested by the state. Indeed, the state, as the one that investigated, initiated, and prosecuted the case against the defendant, should be in the best position to respond to the merits of defendant’s claims. The state is in no position to complain when it is called upon to perform its primary responsibility under this system to respond to the defendant’s assertions in such a way that the trial court can resolve the matter in a just and proper manner.

In the case at hand we do not believe the trial court erred in not examining the record before requiring the state to respond. Accordingly, we deny the state’s petition for writ of certiorari.

HERSEY and HURLEY, JJ., concur.

      . It was alleged in detail that the respondent could factually refute virtually all of the state’s allegations of securities fraud and that respondent wanted to testify and do so but that his counsel unilaterally decided respondent would not testify, without consulting with respondent. In addition, detailed allegations were made concerning counsel’s failure to interview certain critical witnesses and investigate or acquire certain critical evidence before trial. One of the complaints by the state to having to respond to the motion was that numerous discovery depositions would have to be taken to determine the validity of respondent’s allegations.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. John W. GAUNT, Appellee.
    No. 84-325.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellant.
    W. Thomas Wadley of Myron J. Mensh, P.A., St. Petersburg, for appellee.
   GRIMES, Judge.

The state appeals an order suppressing evidence seized pursuant to a search warrant because a duplicate signed copy of the warrant was not served upon the defendant at the time of its execution as required by section 933.11, Florida Statutes (1983).

Though contested by the defendant, the record supports the lower court’s finding that the search warrant was signed in duplicate by the judge. Moreover, the warrant was read to the defendant at the time the police came to search his house, and a xerox copy showing the judge’s signature was also given to him. When defendant asked for a signed duplicate, the police realized that they did not have a second signed copy. Shortly thereafter, a signed duplicate was obtained from the police station and furnished to the defendant.

Our decision is controlled by Harden v. State, 433 So.2d 1378 (Fla. 2d DCA 1983). There we held that in the absence of a showing of prejudice, the failure to serve a proper copy of a search warrant at the time of its execution does not justify the quashing of the search. As in Harden, the defendant here has made no showing of prejudice.

Defendant’s attempt to recast the issue on appeal by questioning whether the officers had even a signed original with them at the time of the search cannot be sustained. While the record does not unequivocally demonstrate that the officers had a signed original with them, this argument was neither included as a ground in the motion to suppress nor advanced at the hearing on the motion. Therefore, the state cannot be penalized for failure to present a more complete record on this point.

REVERSED.

RYDER, C.J., and HOBSON, J., concur.


author: SMITH, Judge.

text:
    Kenneth C. GAVIN, Appellant, v. Mary GAVIN, Appellee.
    No. AY-207.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1984.

      Bill A. Corbin, Blountstown, for appellant.
    Raymond L. Syfrett, Panama City, for appellee.
   SMITH, Judge.

This case involves one dispositive issue: Whether appellant is entitled to have the default and final judgment entered in this dissolution of marriage proceeding set aside because of premature entry of default by the clerk of the circuit court. We answer in the affirmative, and hold that appellant’s Rule 1.540, Florida Rules of Civil Procedure, motion should have been granted.

Appellee filed a petition for dissolution of marriage, which was personally served upon appellant July 20, 1983. On August 9, 1983, the twentieth day after service, appellant’s attorney prepared and, according to his certificate of service, mailed a copy of an answer and counter-petition to appellee’s attorney, the original to the clerk of the circuit court. On August 10, 1983, appellee moved for entry of default by the clerk of the circuit court, Bay County. The clerk entered default against the appellant on the same date. On August 11, 1983, appellee appeared before the trial court and secured a final judgment against appellant, dissolving the marriage between the parties. On the same date, appellant’s answer and counter-petition was received by U.S. Mail in the clerk’s office. However, this pleading was returned to appellant’s attorney by the clerk of court, pursuant to Rule 1.500(c), Florida Rules of Civil Procedure, because default had previously been entered against the appellant.

On September 1, 1983, appellant’s attorney requested that appellee and her attorney stipulate to setting aside the default and final judgment. When this request was refused, appellant filed a motion with the trial court pursuant to Rule 1.540, Flor-ida Rules of Civil Procedure, to set aside the default and final judgment. As grounds for this motion, appellant alleged that the default and final judgment were both improperly entered since appellant had served his answer and counter-petition within the time allowed by rule and by the command of the summons. Appellant’s motion was supported by a sworn statement that he had been duly served with process on July 20, 1983, that the summons stated that he had twenty days in which to answer, and that his answer and counter-petition had been served on appellee’s attorney on August 9, 1983, by U.S. Mail, the twentieth day of the twenty-day time limit for response. Appellant also alleged that appellee had actual knowledge, several days prior to her application for default, that appellant was represented by counsel and that a response to her petition for dissolution of marriage was forthcoming.

After a hearing on appellant’s motion to set aside default and final judgment held on February 8,1984, the trial court entered an order denying appellant’s motion. However, the court’s order allowed appellant’s answer and counter-petition to be filed with the court, and further indicated that the court would determine all issues raised in the appellant’s answer and counter-petition except the dissolution of the parties’ marriage. This appeal followed.

We first note what has been referred to as a “long standing policy of liberality toward the vacating of defaults.” Northshore Hospital, Inc. v. Barber, 143 So.2d 849, 852 (Fla.1962), quoted in Garcia Ins. Agency, Inc. v. Diaz, 351 So.2d 1137, 1138 (Fla. 2d DCA 1977); see also, Gay v. Moreland, 450 So.2d 1270 (Fla. 5th DCA 1984) (same). Rule 1.500(a), Florida Rules of Civil Procedure, provides:

When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper, (emphasis supplied)

Service by mail is considered complete on mailing. Rule 1.080(b), Florida Rules of Civil Procedure. The certificate of service is considered prima facie proof of service. Rule 1.080(f), Florida Rules of Civil Procedure. If a pleading containing a certificate of service is tendered for filing, the certificate is prima facie proof that service has been made effective as of the date of the certificate, even though a copy has not been received by the opposing party. Accordingly, in order to avoid entry of a default prematurely, at least five days should be allowed by the clerk for mail delivery after a return date, before default is entered. Trawick, Florida Practice and Procedure, § 25-2 (1983). Here, the certificate of service on appellant’s answer and counter-petition states that service was furnished to appellee’s attorney by U.S. Mail on August 9, 1983, which was the last day within the twenty day time period within which appellant’s response was due. There was no proof below to rebut the presumption that service was effected as stated by the certificate.

This case is indistinguishable from Meyerson v. Block, 404 So.2d 807 (Fla. 3d DCA 1981). In Meyerson, according to the certificate of service, the defendant's attorney mailed his answer nineteen days after service of the complaint. The clerk, however, entered a default on the twenty-second day, and then received and filed the answer on the twenty-third day. The court in Meyer-son held that since service was effective when mailed, that is, on the nineteenth day, the entry of default was improper. See also, Merrill Lynch, Pierce, Fenner and Smith, Inc. v. Publishers Vending Services, Inc., 296 So.2d 570 (Fla. 3d DCA 1974), cert. den., 305 So.2d 208 (Fla.1974); MoCon Properties, Inc. v. American Mechanical, Inc., 289 So.2d 744 (Fla. 4th DCA 1974).

Accordingly, default was entered prematurely in the case at bar. In such circumstances, a defendant need not show either excusable neglect or a meritorious defense in order to have the default set aside. Hyman v. Canter, 389 So.2d 322, 323 (Fla. 3d DCA 1980); Turner v. Allen, 389 So.2d 686, 687 (Fla. 5th DCA 1980). Since the default was untimely entered, the entry of final judgment was improper, and should have been set aside by the court.

Appellee attempts to defend the trial court’s ruling by arguing here that appellant’s responsive pleading was not in fact timely served. In support of this argument, appellee has filed copies of the envelopes in which appellant mailed his responsive pleading to appellee’s attorney and the clerk of the circuit court, respectively. Appellee points out that the postmark on each of these envelopes indicates a mailing date of August 10, 1983, one day after the date on which appellant’s responsive pleading was due. Appellant responded to the evidence adduced by appellee in this court by filing an affidavit of a postal clerk employed in the Blountstown, Florida post office indicating that any mail deposited in that post office after 4:20 P.M. is postmarked the day following its actual receipt. Of course, we must reject the attempt by both counsel to present evidence in this court. We think, however, that the evidence attempted to be adduced by appellee here would be insufficient, even if accepted, to overcome the prima facie effect of- the certificate of service found on appellant’s answer and counter-petition.

Two further issues raised by the parties need to be only briefly addressed. First, appellant suggests that the final judgment entered on appellee’s motion for default improperly bifurcated the proceedings below by dissolving the parties’ marriage while concurrently reserving jurisdiction for all other matters, Claughton v. Claughton, 393 So.2d 1061 (Fla.1981). As previously noted, in the trial court’s order of March 6, 1984, denying appellant’s motion to set aside default and final judgment, the court simultaneously reserved jurisdiction to determine all issues raised in appellant’s answer and counter-petition, with the exception of the actual dissolution of the parties’ marriage. The practical import of the trial court’s order below was to grant appellant’s motion to set aside default and final judgment as to some issues while at the same time denying the same as to others. However, we see no need to consider this irregular procedure because our action here in vacating the judgment because it was improperly entered renders the issue moot.

Finally, appellant has filed a petition with this court for attorney’s fees, Rule 9.400, Florida Rules of Appellate Procedure. As grounds in support of his motion, appellant cites Sanchez v. Sanchez, 435 So.2d 347 (Fla. 3d DCA 1983). Appellant’s reliance on Sanchez is misplaced. This issue here is not comparable to that in Sanchez, which involved a mere scrivener’s error, but rather, involved a basic disagreement as to interpretation of the rules of procedure. We find no basis in the record indicating that appellee or her attorney were seeking merely to harass appellant when they refused to stipulate to setting aside the default judgment. Rather, we see their actions as motivated by a genuine belief that they had taken no improper action in securing the default. Moreover, we agree with the observation of our sister court in Meyerson, supra at 808, n. 4, that “[pjrudent counsel could [have avoided] the entire problem, including the expense of having the default set aside, which in this case includes the expense of an appeal by filing as well as serving the answer within twenty days.” (emphasis in original).

The order denying motion to set aside the default and final judgment is reversed, and the trial court is ordered to vacate and set aside the final judgment dated August 11, 1983.

REVERSED and REMANDED with directions.

JOANOS and ZEHMER, JJ., concur.


author: COBB, Chief Judge.

text:
    LAUDERDALE INVESTMENTS, INC., Appellant, v. Claude Taludew MILLER, Sheriff of Brevard County, Appellee.
    No. 83-1331.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.
    Thomas F. Luken, Fort Lauderdale, for appellant.
    Peggy M. Morris, Asst. Staff Atty., Orlando, for appellee.
   COBB, Chief Judge.

This is an appeal from a final judgment of forfeiture of a plane, based upon the trial court’s finding that it was used to transport drugs. See § 932.702, Fla.Stat. (1981). The owner of the plane at the time of the offense, David Jern, did not contest the forfeiture action brought by the Sheriff of Brevard County. The action was contested, however, by Lauderdale Investments, Inc., a corporation wholly owned by attorney David Hoines, which claimed that Jern had assigned the plane to Hoines as a legal fee, and that subsequently Hoines assigned it to the corporation.

The trial court granted summary judgment for the sheriff on the basis that Laud-erdale lacked standing to contest the forfeiture, since the company did not own the plane on the date of the offense. Lauder-dale’s standing to challenge the forfeiture proceedings is the sole issue on appeal.

Under the applicable statute, title to the plane immediately vested in the state upon its seizure. § 932.703(1), Fla.Stat. (1981). Nevertheless, the statute says that the title held by the state is subject to perfection of title in accordance with the Act. Section 932.703(2), Florida Statutes (1981), states that:

No property shall be forfeited under the provisions of sections 932.701-932.704 if the owner of such property establishes that he neither knew nor should have known after a reasonable inquiry that such property was being employed or was likely to be employed in criminal activity.

Section 932.703(3) aids in interpreting the word “owner” used in section 932.703(2). Section 932.703(3) concerns lienholders’ interests in forfeited property. It states that only lienholders who acquire their interest prior to the forfeiture may retain their interest in the forfeited property. It can be inferred from this that only owners who acquire their interest pre-forfeiture may retain their interest.

Section 932.703, Florida Statutes, is similar to the United States statute regarding contraband seizure which is found in 49 U.S.C.A. § 782. The United States Supreme Court has ruled on this very question, stating as follows:

[Wjhenever a statute enacts that upon the commission of a certain act specific property used in or connected with that act shall be forfeited, the forfeiture takes effect immediately upon the commission of the act; the right to the property then vests in the United States, although their title is not perfected until judicial condemnation; the forfeiture constitutes a statutory transfer of the right to the United States at the time the .offense is committed; and the condemnation, when obtained, relates back to that time, and avoids all intermediate sales and alienations, even to purchasers in good faith.

United States v. Stowell, 133 U.S. 1, 17-18, 10 S.Ct. 244, 247, 33 L.Ed. 555 (1890).

In In Re Forfeiture of a Cessna 401 Aircraft, 431 So.2d 674 (Fla. 4th DCA 1983), review denied, 444 So.2d 416 (Fla.1984), the trial court entered summary judgment forfeiting the aircraft to the use and benefit of the Broward County Sheriff based on uncontroverted affidavits which established that the aircraft had been used to transport marijuana. The trial court held that there was no owner who knew or should have known that the aircraft was likely to be used to transport marijuana, and that the respondent contesting the forfeiture and claiming to be the owner was not the registered owner, and lacked standing. The trial court did allow one of the respondent’s lawyers to become the substitute respondent as that attorney had filed an unsworn motion stating the respondent had assigned his interest in the forfeited property to him in payment for legal services. The district court of appeal reversed, holding that the attorney’s claim of standing was “so vacuous as to preclude [any] consideration.” 431 So.2d at 675. Because the name on the registration was a fictitious name, the court ruled that the representation of an assignment from this fictitious person to his attorney was “so offensive to the lofty purpose of protecting an identified owner’s interest from an unfair seizure as to warrant the action [taken] here.” 431 So.2d at 676.

In the instant case, the plane was registered in the name of Gregory Little, and the plane was sold to one David Little. The actual name of the owner is David Jern. Therefore, in the instant case, there is an identified owner, but the registration and the purchase contract were filled out in fictitious names. The transfer to Jern’s attorney and the transfer to Lauderdale Investments were not recorded. The basis of Lauderdale Investments’ claim of ownership is a written assignment of interest not made part of the record below. Lauder-dale Investments’ standing may not be as vacuous as the attorney’s standing in In Re Cessna; however, in light of the United States Supreme Court’s decision in Stowell, Lauderdale Investments lacked standing. The summary judgment entered by the court below is

AFFIRMED.

SHARP and COWART, JJ., concur.


author: DAUKSCH, Judge.

text:
    Kenneth THOMAS, Petitioner, v. BREVARD COUNTY SHERIFF’S OFFICE CIVIL SERVICE BOARD and C.W. Miller, Sheriff, Respondents.
    No. 83-1455.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.

      Joseph R. Moss of Joseph R. Moss, P.A., Cocoa, for petitioner.
    Catherine A. Riley, Titusville, for respondent Miller.
   DAUKSCH, Judge.

This case is before the court on a Petition for Writ of Certiorari to review a decision of the Circuit Court in and for Brevard County acting in its appeal capacity. Jurisdiction is based on Article V, Section 4(b)(1), Florida Constitution. The standard of review is narrow; this court’s function is to determine “... whether the circuit court afforded procedural due process and applied the correct law.” City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982). As our supreme court recently held, “[t]he district courts should ... [grant cer-tiorari] only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla.1983). We find the circuit court did not depart from the essential requirements of law and did apply the correct law. Thus we deny certiorari.

Petitioner, Kenneth Thomas, was a deputy sheriff with the rank of sergeant in the Brevard County Sheriff’s Department until April 3, 1982. On that date Sheriff Miller suspended petitioner for thirty days pending dismissal from employment at the expiration of the thirty-day suspension period. The ground for the dismissal is insubordination consisting of petitioner’s refusal to obey a direct order from a superior officer to answer a question posed to him during the course of an investigatory interrogation.

In March, 1982, the Bureau of Staff Services of the Brevard County Sheriff’s Department conducted an internal investigation of Deputy Steve Hester. During the investigation Deputy Hester requested to be given a polygraph examination. After the results of the polygraph examination indicated deception, Deputy Hester sought the advice of petitioner Thomas. Both men were off duty when Hester called petitioner at his home; both testified that their conversation about the polygraph examination was one between friends and was not in their official capacities. During the conversation Deputy Hester told petitioner that he would like to take another polygraph examination. Petitioner responded that he would try to find out who could give Hester a second examination.

Subsequent to his phone conversation with Deputy Hester, petitioner phoned a friend of his, Wayne Porter. Wayne Porter is an investigator in the State Attorney’s office in Brevard County, and a polygraph examiner. Petitioner phoned Wayne Porter at home, at night, after work; Porter considered it a personal call. Porter testified that his conversation with petitioner in no way involved Porter’s employment at the State Attorney’s office. Petitioner asked Porter about the plausability of administering a second polygraph examination to Deputy Hester. Porter gave petitioner the name of a private polygraph examiner in Titusville who might be able to administer the second examination. Wayne Porter testified that petitioner never, during their conversation, questioned the ability or lack thereof of the examiner who first tested Deputy Hester.

In a statement he gave on March 17, 1982 to one of the department’s internal investigators Deputy Hester described the contents of his conversation with petitioner about taking a second polygraph examination. Deputy Hester stated that petitioner agreed to make a phone call in Hester’s behalf regarding a second examination. Hester also stated that though petitioner never told Hester the name of the individual whom he intended to contact, he did mention the State Attorney’s office.

Subsequent to Deputy Hester’s statement, Commander Frank Billings interrogated petitioner. At the interrogation, Commander Billings asked petitioner the name of the individual he had contacted regarding a second polygraph examination for Deputy Hester. Commander Billings testified that the answer to this question was important because the department had learned from Hester that petitioner called the State Attorney’s office; Billings was concerned that the call to the State Attorney’s office may have been in petitioner’s official capacity, judging or attempting to judge the credibility of the Sheriff’s Department, specifically, the sheriff himself. Petitioner refused to identify the individual he contacted even after a direct order from Billings “in my capacity as commander.” After the interview with petitioner, Commander Billings recommended to the sheriff that he terminate petitioner for gross insubordination to Billings during the questioning period. Sheriff Miller followed Commander Billings’ recommendation and suspended petitioner pending termination.

At petitioner’s request, the Civil Service Board of the Brevard County Sheriff’s Department conducted a hearing on April 28, 1982. At the conclusion of testimony, the Civil Service Board found that petitioner had been insubordinate in refusing to answer Commander Billings’ question. The Board was equivocal, however, on this issue. The transcript reveals the panel member’s uncertainty that Commander Billings’ order was a lawful order requiring petitioner to respond. This was an important question for the Board’s inquiry because if the order was not a lawful one, petitioner was not insubordinate in refusing to obey it and Sheriff Miller was not justified in disciplining him. By the date of the hearing, the thirty-day suspension period was almost expired. The following colloquy between two of the three Board members implies that the Board may not have concluded that petitioner’s conduct was insubordinate if it knew it had no authority to reduce the penalty.

CHAIRMAN NANCE: I will agree that there was insubordination and I think the question is the severity of the penalty.
MR. KUTSCHE: I’ve got a little bit of a problem even with the question of insubordination.
CHAIRMAN NANCE: I’ve got a problem with it too, but I mean to make it to expedite the circumstances.

Incorrectly believing they had the authority to do so, the Board decided that termination is too severe a penalty for petitioner’s offense. It reduced the penalty to thirty days suspension (of which petitioner had completed all but two days) and ordered petitioner reinstated to his former rank of sergeant at the end of the suspension period.

Petitioner appealed the order of the Civil Service Board to the Circuit Court in Bre-vard County and the sheriff cross-appealed. On the sheriffs motion, the circuit court treated the appeals as a petition and cross-petition for common law writ of certiorari. The circuit court, serving in its appellate capacity, affirmed the Civil Service Board’s finding of insubordination and reversed the Board’s finding that dismissal was too severe a penalty. The lower court concluded that once the Civil Service Board determined that petitioner had been insubordinate it was without authority to substitute its judgment for that of the sheriff as to the severity of the disciplinary action imposed.

Chapter 67-1149, Laws of Florida, creates in Brevard County a Civil Service Board to administer a civil service system for the deputy sheriffs and the employees of the office of sheriff of Brevard County. Section 17 of Chapter 67-1149, Laws of Florida, provides that “the sheriff may suspend or dismiss an employee for any just cause which, in his opinion, will promote the efficiency of the service.” Section 17 also provides that a dismissed employee or deputy has an absolute right to a hearing in front of the Civil Service Board of Bre-vard County Sheriffs Department. After such a hearing, “the Board may reinstate the person removed only in case it appears ... that the removal was made for reasons other than just cause.” Thus, the Board’s inquiry is restricted to determining whether there is just cause to support the disciplinary action which the sheriff imposed; the Board has no power to modify the sheriff’s disciplinary action unless it finds that there is no just cause for the action taken.

Section 800 of the Brevard County Sheriff’s Department Rules and Regulations Manual advises the members and employees of the Brevard County Sheriff’s Department that

... violation of, or deviation from, the rules and regulations set forth in this section shall result in disciplinary action. Said disciplinary action may result in imposition of any or all of the following sanctions:
1) verbal reprimand
2) written reprimand
3) transfer
4) suspension without pay
5) demotion
6) dismissal
The specific sanction(s) imposed will depend upon the nature and/or severity of the violation or deviation and any other information that may be considered relevant.

Section 300-7 of the Brevard County Sheriffs Department Rules and Regulations Manual defines insubordination and states that insubordinate conduct on the part of a member or employee of the Sheriffs Department is grounds for imposition of one or all of the disciplinary measures provided in Section 300:

Insubordination: Any member or employee who deliberately refuses or fails to obey any lawful order given by a superior officer or who engages in mutinous conduct such as showing gross and direct disrespect to a superior officer, shall be guilty of insubordination and in violation of this regulation.

Reading Chapter 67-1149, Section 17, Laws of Florida and Sections 300 and 300-7 of the Brevard County Sheriffs Department Rules and Regulations Manual together, it is apparent that insubordination is sufficient just cause for the sheriff to suspend or dismiss the insubordinate employee or deputy. In the case at bar the Civil Service Board of the Brevard County Sheriffs Department exceeded its authority, when, after determining that petitioner had been insubordinate, it reduced the penalty which the sheriff imposed to a period of suspension. The circuit court, in its appeal capacity, correctly construed the law when it stated:

Once “just cause” is established, the sheriff has the absolute right to dismiss his deputy. The Civil Service Board is without authority to substitute its opinion for that of the sheriff as to the severity of disciplinary action imposed, provided said disciplinary action is authorized by law.

The lower court correctly applied the law when it reversed the Civil Service Board’s modification of the penalty imposed on petitioner and reinstituted the penalty laid down by the sheriff.

Although the result in this case is unseemly in light of petitioner’s rather insignificant act of insubordination, the narrow standard of review on a petition for writ of certiorari prevents this court from granting relief where the lower court afforded petitioner procedural due process and correctly applied the law to the case. Counsel and the Civil Service Board must assume responsibility for this result because the Board did not realize, and counsel did not instruct it, that it had no authority to alter the penalty the sheriff imposed after it determined that just cause for discipline existed. It is clear that the board considered termination of petitioner’s employment too harsh a penalty for his insubordinate conduct in this case. Rather than concluding that insubordination existed “... to expedite the circumstances ...”, the board should have more energetically inquired whether petitioner disobeyed a lawful order and, consequently, whether the sheriff had just cause to discipline petitioner at all. The case is before this court, however, on a petition to review a decision of the circuit court, not one of the Civil Service Board, and there is no basis upon which to reverse the circuit court’s decision. The petition is denied.

Petition denied.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

      . This special law affords deputy sheriffs in Brevard County more due process protection than deputy sheriffs are generally entitled to in Florida. See Szell v. Lamar, 414 So.2d 276 (Fla. 5th DCA 1982) (Deputy Sheriff has no property interest in his office and no constitutional due process protections when he is dismissed).

      . The question of whether the circuit court afforded petitioner procedural due process does not require lengthy discussion. Petitioner was afforded at least the minimal due process protections at every level of review. Petitioner requested the hearing before the Civil Service Board so he clearly had notice of it; at the hearing, petitioner had the opportunity to be heard and to confront his accusers. Before the circuit court, petitioner, again, was afforded notice and an opportunity to be heard.


author: ORFINGER, Judge.

text:
    Thomas David BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 84-137.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 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 Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

Affirmed on the authority of Gordon v. State, 449 So.2d 969 (Fla. 5th DCA 1984) and Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984), without prejudice to the right of appellant to raise the issue of proper credit for time previously served in a motion under Rule 3.850, Florida Rule of Criminal Procedure. See Jensen v. State, 449 So.2d 969 (Fla. 5th DCA 1984).

AFFIRMED.

DAUKSCH and FRANK D. UP-CHURCH, JJ„ concur.


author: HOBSON, Acting Chief Judge.

text:
    Monroe BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 82-2240.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1984.
    Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant was charged with violation of the RICO statute and three counts of conspiracy to traffic in cannabis. He ultimately was found and adjudicated guilty on all four charges.

Appellant argues, and we agree, that his RICO conviction must be reversed because the state’s information against him was identical to the ones we held legally insufficient in Gillen v. State, 421 So.2d 1089 (Fla. 2d DCA 1982); Whitehead v. State, 421 So.2d 1089 (Fla. 2d DCA 1982); Beatty v. State, 418 So.2d 271 (Fla. 2d DCA 1982); Bowers v. State, 418 So.2d 272 (Fla. 2d DCA 1982); and Long v. State, 418 So.2d 1264 (Fla. 2d DCA 1982).

We have carefully considered appellant’s remaining points and find them to be without merit.

Accordingly, we affirm appellant’s convictions for conspiracy but reverse the judgment of guilt under the RICO statute and remand that case for further proceedings.

BOARDMAN and SCHOONOVER, JJ., concur.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. Bruce STANKOVITCH, Appellee.
    No. 84-74.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellant.
    James Birkhold of Edwin T. Mulock, P.A., Bradenton, for appellee.
   CAMPBELL, Judge.

Appellant, the State of Florida, seeks review of the sentence withholding adjudication of guilt in count I of the information against Bruce Stankovitch, appellee. We reverse.

Appellant contends that section 316.-656(1), Florida Statutes (1983), expressly prohibits a court from withholding adjudication for violation of section 316.193(1), Florida Statutes (1983).

On April 27, 1983, appellee was charged by information with manslaughter in count I, pursuant to section 782.07 and section 316.193(1). In Count II, he was charged with vehicular homicide pursuant to section 782.071, Florida Statutes (1983). Count II was nolle prossed. At sentencing on count I, adjudication of guilt was withheld and appellee was placed on five years probation with the special condition that he spend eleven and one-half months in the county jail. The state objected to the withholding of adjudication on the grounds stated above.

Section 316.656, Florida Statutes, did not become effective until October 1,1983, subsequent to the date appellee was charged. See ch. 83-228, § 12, Laws of Florida. Accordingly, the trial court correctly found that the mandatory adjudication provisions of section 316.656 did not apply in this case. However, counsel failed to inform the trial court of a similar provision enacted in 1982, as section 322.281(1), Florida Statutes (1982) (effective July 1, 1982, ch. 82-155, Laws of Florida). That section provides:

Notwithstanding the provisions of section 948.01, no court shall suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of section 316.193 or section 316.1931.

Here, appellant was charged with violation of section 316.193(1). According to the terms of section 322.281(1), Florida Statutes (1982), adjudication could not be withheld. Therefore, the decision of the trial court is reversed and the case remanded for further proceedings.

RYDER, C.J., and GRIMES, J., concur.


author: PER CURIAM.

text:
    BRUNSCO, a Florida corporation, and Art Bruns, Appellants, v. Karl NOONAN, d/b/a Karl Noonan Realty, Appellee. Karl NOONAN, d/b/a Karl Noonan Realty, Appellant, v. BRUNSCO, a Florida corporation, and Art Bruns, Appellees.
    Nos. 83-670, 83-2485.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Sobel & Sobel and Stuart H. Sobel, Pert-noy & Greenberg, Miami, for Karl Noonan.
    Jeanne Heyward, Adams, Hunter, An-gones & Adams and Frank Angones, Miami, for Brunsco and Art Bruns.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Noonan, doing business as Karl Noonan Realty, appeals from the trial court’s order granting Bruns and Brunsco’s motion for relief from judgment on the basis that evidence of Noonan’s assignment of his rights to all proceeds received as a result of a successful suit against Bruns and Brunsco constitutes “newly discovered evidence” within the meaning of Florida Rule of Civil Procedure 1.540(b). We reverse. Evidence of Noonan’s assignment is not material to any issue in the case and thus does not constitute newly discovered evidence justifying relief under Florida Rule of Civil Procedure 1.540(b). City of Winter Haven v. Tuttle/White Constructors, Inc., 370 So.2d 829, 832 (Fla. 2d DCA 1979).

We affirm the court’s denial of Noonan’s motion for additur on the authority of Healy v. Atwater, 269 So.2d 753 (Fla. 3d DCA 1972), cert. denied, 275 So.2d 537 (Fla.1973). We have considered the parties’ remaining arguments and find that they are without merit.

Reversed in part, affirmed in part, and remanded with directions to the trial court to enter judgment on the verdict in favor of Noonan.


text:
    Waldemar MORALES, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1246.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Ellis Rubin and S. Richard Kaplan, Miami, for appellant.
    Jim Smith, Atty. Gen. and G. Bart Billb-rough and Richard E. Doran, Asst. Attys. Gen., for appellee.
    Before FERGUSON and JORGENSON, JJ., and NORRIS, WILLIAM A., Jr., Associate Judge.
   PER CURIAM.

Affirmed. Castor v. State, 365 So.2d 701 (Fla.1978); Daizi v. State, 396 So.2d 1160 (Fla. 3d DCA 1981).


text:
    Jose Manuel GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1978.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Bennett H. Brummer, Public Defender and Marti A. Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Renee E. Rus-ka, Asst. Atty. Gen. for appellee.
    Before HUBBART, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Edwards v. State, 439 So.2d 1028 (Fla.3d DCA 1983); Chappell v. State, 429 So.2d 84 (Fla. 5th DCA 1983).


text:
    Monroe GELB and Carl A. Spatz, d/b/a Gelb & Spatz, a partnership, Appellants, v. Nelson MIRANDA, Appellee.
    No. 83-2859.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.

      Gelb & Spatz and Carl Spatz, Miami, for appellants.
    Barney V. Avchen, Hialeah, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Gelb and Spatz appeal a final order dismissing their action for failure to prosecute. We reverse.

We are faced again with an interpretation of Florida Rule of Civil Procedure 1.420(e), which, for some reason, both counsel and trial judges appear to have trouble understanding. The interpretation is relatively simple. If sufficient record activity occurs during the one-year period preceding the motion to dismiss for failure to prosecute, then the motion should be denied. Collado v. C & C Cattle Co., 415 So.2d 901 (Fla. 3d DCA 1982); Florida East Coast Railway v. Russell, 398 So.2d 949 (Fla. 4th DCA), review denied, 411 So.2d 381 (Fla.1981); Biscayne Construction Co. v. Metropolitan Dade County, 388 So.2d 329 (Fla. 3d DCA 1980).

Here plaintiff-appellant’s notice of hearing on defendant’s pending motions was filed only four days before the defendant’s motion to dismiss for failure to prosecute. Since a notice of hearing is sufficient record activity to preclude dismissal, Greenwell v. Cuiffo, 415 So.2d 901 (Fla. 3d DCA 1982); Kenet v. Stein, 326 So.2d 36 (Fla. 3d DCA 1976); see generally, Nelson v. Stonewall Insurance Co., 440 So.2d 664, 665 (Fla. 1st DCA 1983) (reviewing a number of cases regarding sufficiency of record activity), the motion to dismiss in this case should have been denied.

Reversed and remanded.

      . Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice of the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Mere inaction of a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.


text:
    FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, a Florida corporation, Appellant, v. TROPICANA PRODUCTS, INC., and General Accident Fire & Life Assurance Corporation, Ltd., Appellees.
    No. 83-3009.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.

      Bedford & Whitelock and Jack White-lock, Miami, for appellant.
    Carey, Dwyer, Cole, Eckhart, Mason & Spring and Harriet Lewis, Miami, for appel-lees.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The single issue presented is whether a personal injury protection (PIP) insurer has a statutory right of reimbursement from the owner or liability insurer of a commercial vehicle, without regard to fault, where the PIP insurer has paid benefits to its insured under a private passenger motor vehicle insurance policy for injuries incurred when the insured was struck by a commercial vehicle.

At the heart of the controversy is Section 627.7405, Florida Statutes (1981), which provides:

627.7405 Subrogation.—
Notwithstanding any other provisions of ss. 627.730-627.741, any insurer providing personal injury protection benefits on a private passenger motor vehicle shall have, to the extent of any personal injury protection benefits paid to any person as a benefit arising out of such private passenger motor vehicle insurance, a right of reimbursement against the owner or the insurer of the owner of a commercial motor vehicle, if the benefits paid result from such person having been an occupant of the commercial motor vehicle or having been struck by the commercial motor vehicle while not an occupant of any self-propelled vehicle.

Appellant contends that Section 627.7405 is not a subrogation statute which requires a showing that the commercial vehicle owner and its insurer were at fault, but grants a “pure right of reimbursement without regard to ... fault” where a PIP carrier has paid benefits to its insured owing to injuries caused by a commercial vehicle. As evidence of legislative intent appellant compares the 1978 and 1981 versions of the statute, which were entitled Subrogation, with the 1982 version which is entitled Insurers’ Right of Reimbursement. (The statute remained, otherwise, unchanged.)

Rejecting appellant’s argument, the trial court held that such a construction would be unconstitutional “as it would create two classifications of owners and insurers of vehicles, i.e., owners and insurers of commercial vehicles and owners and insurers of all other vehicles, without a rational basis for such classification....” It then looked to the pleadings and the stipulated facts presented in support of the motion for summary judgment and, finding no allegation of “facts which would give rise to a claim of subrogation in favor of the plaintiff,” entered judgment for the commercial vehicle owner and its insurer. We agree.

Affirmed.


author: NESBITT, Judge.

text:
    STATE of Florida DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Gregg C. TAYLOR and The Career Service Commission of the State of Florida, Appellees.
    No. 84-69.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.

      R.W. Evans, Tallahassee, for appellant.
    William H. Ravenell, and Meyer & Brooks and Ronald Meyer, Tallahassee, for appellees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   NESBITT, Judge.

The Department of Highway Safety and Motor Vehicles (the Department) appeals a Career Service Commission (the Commission) order reducing Highway Patrol Officer Gregg Taylor’s dismissal to a suspension.

On October 27,1982, Officer Taylor, then a two and one-half-year member of the Florida Highway Patrol, stopped to aid another officer, Epps, who had made a traffic stop. A passenger in the vehicle, William Sorrell, was being loud and boisterous and would not return to his seat in the car as directed. Trooper Taylor grabbed Sorrell by the arm and attempted to place him back in the car. Sorrell resisted and a scuffle ensued. Sorrell was wrestled to the ground, face down, in a prone position. Trooper Epps had handcuffed Sorrell’s left hand behind him and placed his (Epps’) knee in Sorrell’s back. While Sorrell was in this prone position, he freed his right hand from Taylor’s grasp and Taylor, believing a “potentially dangerous situation” had developed and that “something extra was needed to subdue Mr. Sorrell,” hit Sorrell on the forehead with his flashlight, causing a gash.

After a predetermination conference on a charge of willful maltreatment of a prisoner (in violation of Florida Administrative Code Rule 15-3.01), the Department issued a certified mail notice of termination dated April 5, 1983.

On appeal, the Commission found maltreatment, but not willful maltreatment. The Commission also found mitigating circumstances and ordered that Taylor’s dismissal be reduced to a six-month suspension.

The Commission made findings of fact that Taylor had wrongfully used his flashlight as a weapon and had maltreated a prisoner. Such findings are amply supported by the record evidence. To maltreat is to treat cruelly, handle roughly or abuse. The American Heritage Dictionary of the English Language 791 (1973). See also People v. Dednam, 55 I11.2d 565, 304 N.E.2d 627 (1973). Taylor’s use of the flashlight as a weapon when Sorrell was in a prone position with one hand cuffed and another officer’s knee in his back was more force than was necessary to subdue Sorrell and constituted abuse or maltreatment.

This case turns on whether Taylor’s maltreatment was willful. The Commission found that it was not, but did not state grounds for the finding. We glean from the record and order two possible grounds, both of which are erroneous.

First, the Commission may have interpreted willful to require a showing of malice. Such a requirement would rob the rule of its effectiveness in protecting prisoners and others from intentional abuse by patrolmen. For purposes of Florida Administrative Code Rule 15-3.01, willfulness is satisfied by a conscious intentional act, see Dezell v. King, 91 So.2d 624, 626 (Fla.1956), done without justifiable excuse. Commonwealth ex rel. Wright v. Hendrick, 445 Pa. 36, 312 A.2d 402, 404 (1973); Leukhardt v. Commonwealth, State Board of Nurse Examiners, Bureau of Professional & Occupational Affairs, 44 Pa. Commw. 318, 403 A.2d 645 (Pa.Commw.Ct.1979).

The standard for willfulness just mentioned leads us to the second possible ground for the Commission’s finding; that is, justifiable excuse. The Commission’s order indicates that Taylor’s action was necessary to protect himself. It is our responsibility to determine whether there is competent substantial evidence to support such a finding. Department of Health & Rehabilitative Services v. Hankerson, 423 So.2d 448, 449 (Fla. 1st DCA 1982). If so, the use of such force would be excusable. However, the record in no way supports a self-defense justification. Sorrell was in no position to strike Taylor. There is no evidence that he reached for Taylor’s revolver and, in fact, the physical positions of the persons involved at the time the blow was struck made such a possibility extremely remote. Additionally, Taylor himself testified that when he struggled with Sorrell alone, before Epps came to his aid and all but subdued Sorrell, he was not concerned for his own safety or well-being. Surely, then, there was no reasonable cause for concern when Sorrell was prone, with a hand cuffed behind him, and Trooper Epps’ weight on his back. Finding no competent substantial evidence to support a finding of justifiable excuse, we reverse.

Taylor has cross-appealed his suspension on a number of grounds. Our resolution of the main appeal resolves some of those grounds adversely to Taylor. We find the other grounds to be without merit.

The order appealed from is reversed and the cause is remanded to the Commission for a determination of whether the severity of the disciplinary action was justified. § 110.309(4), Fla.Stat. (1983); see Department of Health & Rehabilitative Services v. Hankerson, 404 So.2d 149 (Fla. 1st DCA 1981).

Reversed and remanded with directions.


text:
    NEW JERSEY MANUFACTURERS INSURANCE COMPANY, Appellant, v. Robert WOODWARD and Sara Woodward, his wife, Appellees.
    Nos. 84-465, 84-763.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.

      Adams, Hunter, Angones & Adams and R. Wade Adams and Christopher Lynch, Miami, for appellant.
    William J. Brown, Miami, for appellees.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

The final declaratory judgment and the judgment awarding attorney’s fees and costs are reversed and the cause is remanded to the trial court with directions to enter a decree in favor of the insurer [New Jersey Manufacturers Insurance Co.] declaring that the motor vehicle liability insurance policy herein validly provides for $15,-000/$30,000 uninsured motorist coverage limits, although the liability coverage limits are $50,000/$100,000. We reach this result for two reasons.

First, the subject insurance policy was not delivered or issued for delivery in Florida with respect to any motor vehicle registered or principally garaged in Flori-da. Without dispute, the subject policy was issued and delivered while the insureds [Robert and Sara Woodward] were permanent residents of New Jersey; the policy also, without dispute, related solely to motor vehicles which the insureds principally garaged in New Jersey. The insurance policy herein was therefore not subject to the Florida statutory requirement that the uninsured motorist coverage limits contained therein must equal to the liability coverage limits of the policy, § 627.-727(2)(a), Fla.Stat. (1983), because this requirement is applicable only to motor vehicle liability insurance policies “delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state....” § 627.727(1), Fla.Stat. (1983).

Second, we reject the argument that the insurer herein was on reasonable notice that the insureds subsequently changed their permanent residence to Florida and principally garaged the covered motor vehicles in Florida, so as to subject the insurer to the- above-stated Florida statutory requirement based on the authority of Gillen v. United Services Automobile Ass’n, 300 So.2d 3, 6-7 (Fla.1974). Prior to the accident in the instant case, the insureds sent the insurer a post office change-of-address form indicating that they had changed their mailing address to a location in Florida. There was no indication on this form that the insureds had changed their permanent residence to Florida or that the covered motor vehicles under the subject policy would now be principally garaged in Flori-da. No other notice was given to the insurer prior to the accident herein indicating the above-stated charges. Unlike Gillen, the insurer herein was therefore not on reasonable notice that the risk of the policy was centered in Florida rather than New Jersey, and, accordingly, Florida law cannot govern as to the extent of uninsured motorist coverage limits contained in the said policy.

Reversed and remanded.


author: FERGUSON, Judge.

text:
    KOEHLKE COMPONENTS, INC., an Ohio corporation, Petitioner, v. SOUTH EAST CONNECTORS, INC., a Florida corporation, Respondent.
    No. 84-1689.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager, Bradford J. Beilly, Scott M. Bernstein and Joseph Huss, Hollywood & Boca Raton, for petitioner.
    Michael J. Fingar, Miami, for respondent.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   FERGUSON, Judge.

Petitioner, Koehlke Components, Inc., seeks certiorari review of an order denying a Motion to Abate.

Petitioner filed an action for damages against respondent, South East Connectors, Inc., in the United States District Court for the Southern District of Ohio on July 3, 1983, asserting rights under a contract. That action is still pending. On August 1, 1983, respondent commenced this action for declaratory relief seeking a determination of its rights and obligations under the same contract. Petitioner sought, unsuccessfully, to abate the state action on the ground that the same issue was the subject of the pending federal suit.

Generally, a state court will abate an action upon a showing that a prior action involving the same parties and cause of action is presently pending in the same court or other court of like jurisdiction. The pendency of a prior suit in a federal court, however, is not grounds for abatement of a like suit in a state court. State ex rel. Dos Amigos, Inc. v. Lehman, 100 Fla. 1313, 131 So. 533 (1930). Instead, the usual practice in such a case is to suspend or stay the proceedings until the first action is determined. Wade v. Clower, 94 Fla. 817, 114 So. 548 (Fla.1927). Although the trial court has the discretion to deny a stay where the need for state-federal court comity is outweighed by factors such as the congestion of the federal court docket, see ITT-Community Development Corp. v. Halifax Paving, Inc., 350 So.2d 116 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1215 (Fla.1978), this case does not present such a situation. Here, the party seeking affirmative relief on the contract was the party who filed the action in federal court and thus accepted the risk of delay. The record reveals no other reason for a departure from the general rule of comity. Refusal to stay the state action pending final disposition of the federal suit constituted an abuse of discretion.

Certiorari granted.


text:
    Frederick D. McCLEARY and Evelyn Elizabeth McCleary, his wife, Appellants, v. AMERICAN HOIST & DERRICK COMPANY, et al., Appellees.
    No. AW-249.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1984.
    Norwood S. Wilner, of Zisser, Robison, Spohrer, Wilner & Harris, P.A., Jacksonville, for appellants.
    William T. Stone, of Coker, Myers & Schickel, P.A., Jacksonville, for appellees.
   PER CURIAM.

AFFIRMED.

JOANOS, WIGGINTON and BAR-FIELD, JJ., concur.


text:
    Samia RUKAB, Appellant, v. Zack RUKAB, Appellee.
    No. AX-67.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1984.
    Al Millar, Jacksonville, for appellant.
    Harry B. Mahon, of Mahon, Mahon & Farley, Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED.

JOANOS, WIGGINTON and BAR-FIELD, JJ., concur.


author: DOWNEY, Judge.

text:
    Herbert R. PHILLIPS and Annette H. Phillips, Appellants, v. Arthur B. CHOATE, Appellee.
    No. 83-1679.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1984.
    Philip E. Morgaman of Morgaman & Camillo, Fort Lauderdale, for appellants.
    Cromwell A. Anderson of Patton & Kan-ner, Miami, for appellee.
   DOWNEY, Judge.

Herbert R. Phillips and Annette H. Phillips, plaintiffs in an action for declaration of a constructive or express trust on the proceeds from the sale of a parcel of real property, appeal from a summary judgment for Arthur B. Choate on their complaint, based on their failure to join an indispensable party, Mark S. Phillips.

This litigation began on August 17, 1982, when a complaint naming Herbert R. Phillips, Annette H. Phillips, and Mark S. Phillips as plaintiffs was filed against Choate. In material part that complaint alleged the following things. On August 16, 1978, all the named parties and a corporation (which no longer was an interested party) entered into a written agreement relative to numerous things including the disposal of real property, known as The Boatyard, that belonged to the parties. However, no recorded deed showed the parties’ respective interests in that property. Pursuant to the agreement, Choate was to sell the property and disburse the proceeds to Choate and to the Phillipses. However, Choate intended to deprive the Phillipses of their share of the proceeds, and thus they sought to prohibit Choate from selling the land and distributing the proceeds in any way other than that prescribed by the agreement.

After filing an answer, Choate moved to dismiss as to Mark S. Phillips as a sanction because he failed to appear for a deposition. The court on January 19, 1983, dismissed the action as to Mark.

On March 16, 1983, Herbert, on his own behalf and as agent for Mark and Annette, filed an amended complaint against Choate. In addition to repeating the material allegations of the original complaint, it alleged that Mark had appointed Herbert as his attorney in fact pursuant to a power of attorney Mark had executed April 15, 1979, and that Herbert had assigned to himself Mark’s interest in The Boatyard.

Choate moved for summary judgment on the ground that the amended complaint failed to include an indispensable party, Mark S. Phillips. It was undisputed that Mark is a fugitive from justice and not available to proceed as a party in this litigation. The court entered an order in which it held that Choate was entitled to judgment as a matter of law since there was a failure to join an indispensable party, Mark S. Phillips.

Mr. and Mrs. Phillips raise numerous points that do not require extensive treatment. The primary point on appeal is that the order under review is erroneous because Mark S. Phillips is not an indispensable party. A subsidiary issue is whether Herbert R. Phillips is the assignee of Mark’s interest. Without making any decision on the validity of the power of attorney, we hold that the assignment is ineffective under the facts of this case because the agreement in question prohibits any assignment without the express written consent of all parties to the agreement. See 4 Fla.Jur.2d Assignments § 4.

Accordingly, the question with which we must deal is whether the circuit court properly concluded that Mark S. Phillips was an indispensable party to the present action for imposition of a trust on the proceeds of any sale of the real property referred to in the agreement of August 16, 1978.

In Shields v. Barrow, 17 How. 130, 139, 15 L.Ed. 158, 160 (1855), the Supreme Court said that the parties necessary to a lawsuit are:

“[pjersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it.”

It recognized that not all necessary parties are indispensable to the maintenance of a lawsuit by saying that indispensable parties are:

“[pjersons who have not only an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.”

Ibid.

Florida has adhered to those definitions. See Martinez v. Balbin, 76 So.2d 488 (Fla. 1954), and cases cited therein.

A later Supreme Court decision has articulated the manner in which a court applies the foregoing principles in order to resolve a motion to dismiss for failure to join an indispensable party:

To say that a court “must” dismiss in the absence of an indispensable party and that it “cannot proceed” without him puts that matter the wrong way around: a court does not know whether a particular person is “indispensable” until it has examined the situation to determine whether it can proceed without him.

Provident Tradesmens B & T Co. v. Patterson, 390 U.S. 102, 119; 88 S.Ct. 733, 743; 19 L.Ed.2d 936 (1968).

Thus, the real question in this case is whether the litigation can proceed without Mark S. Phillips.

Choate argues that this litigation cannot proceed without Mark because Mark is a joint obligee. He contends that all joint obligees must join in an action against a defendant who purportedly owes a joint obligation and the failure of one obligee to join in the action requires its dismissal on indispensable party grounds.

While at common law the general rule was that all parties having a joint interest in the subject of a contract action had to be joined as plaintiffs, see 39 Fla. Jur.2d Parties § 13, it is not now always the case that inability of some joint obli-gees to join another obligee requires dismissal for failure to join an indispensable party.

There is perhaps good reason for joinder of all joint obligors or obligees where that is feasible. In either case completeness of judgment and avoidance of unnecessary litigation will be furthered, in the social interest. In the case of joint obligees, their joinder will also protect the defendant from undue harassment. He has incurred only a single obligation and should be sued only once for it. But while these reasons are entitled to weight, they scarcely warrant the denial of substantive justice to the present obli-gees, or to obligees who can find only some of their joint obligors. And none of the other considerations listed above apply; absentees will not be prejudicially affected, nor will present parties by a judgment which does not bind absentees (except only as this leaves the floor open to further suits). There is then no justification for a rule which will stop the action for want [of] unavailable joint obli-gors or joint obligees.

James, Necessary and Indispensable Parties, 18 U. of Miami, L.R. 68, 84 (emphasis added).

See also 7 Wright & Miller, Federal Practice and Procedure: Civil § 1613. In view of the above quoted pronouncement in Provident Tradesmens, a determination whether litigation can proceed does not turn on the legal status of the missing person as a joint obligee; rather it turns on that legal status as applied to the facts of the case. The question is not whether a lawsuit should continue without a joint obli-gee but whether on the facts of the case it can proceed without a particular joint obli-gee.

The facts of the present case, as previously set forth in the summary of the pleadings, demonstrate that Herbert R. Phillips and Annette Phillips will not be able to resolve their claim against Choate if the order under review stands. It appears to us that the only harm to Choate in the event this litigation continues without Mark, and Choate prevails, is that Choate may have to face subsequent litigation by Mark on substantially the same claim his parents make. We do not think this is enough to permit a holding that the present litigation cannot continue and that we must therefore label Mark as an indispensable party.

The following reasons support this conclusion. First, a court ought not dismiss an action on the grounds of failure to join an indispensable party if dismissal would foreclose the claim of the present plaintiffs and the only adverse result of failure to dismiss is a possible subsequent action against the defendant by the missing party. See Annot., Dismissal—Joinder Not Feasible, 21 A.L.R.Fed. 12, §§ 9[g], 12 (1974). Second, the circuit court, if it deems it appropriate in the present case, might condition maintenance of this action on Mr. and Mrs. Phillips’s indemnifying Choate for any attorney’s fees and other costs he incurs upon a successful defense against a substantially similar claim that Mark S. Phillips might make at some future date. Third, the result of this litigation cannot prejudice any interest Mark might have in the proceeds of the sale of The Boatyard. If Mr. and Mrs. Phillips prevail against Choate, the court can direct Choate, if he makes a sale of The Boatyard, to pay into the registry of the court whatever percentage the entire Phillips interest in the proceeds of the sale is. All Choate would ultimately be entitled to, if the Phil-lipses prevail on their claim for imposition of a trust, is a proportion of the proceeds of any future sale; he cannot complain that his interest in the proceeds of a future sale of The Boatyard is being diminished by Mark’s absence from the litigation. The court can leave to another day a ruling as to any interest Mark might have in whatever the court finds the Phillips family’s portion of the proceeds to be. Thus, an equitable weighing of the interests of the present parties leads to the conclusion that the litigation should be allowed to continue even though Mark S. Phillips is not available to join as a plaintiff.

For the foregoing reasons, we reverse the summary judgment appealed from and remand the cause for further proceedings.

REVERSED and REMANDED, with directions.

ANSTEAD, C.J., and GLICKSTEIN, J., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    James Darrell TONEY, a/k/a James N. Toney, Appellant, v. STATE of Florida, Appellee.
    No. 84-134.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1984.
    Jerry Hill, Public Defender, and Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

We affirm appellant’s fifteen-year sentence for armed robbery under section 812.-13, Florida Statutes (1983). We agree with appellant’s contention, however, that the sentencing guideline scoresheet prepared in conjunction with this case incorrectly assessed seven points against appellant for slight victim injury.

When appellant was sentenced on November 23, 1983, Florida Rule of Criminal Procedure 3.701(d)(7) provided that “ [victim injury shall not be scored if not a factor of an offense at conviction.” Committee Note (d)(7) to the rule explained that the foregoing provision

implements the intention of the commission that points for victim injury be added only when the defendant is convicted of an* offense (scored as either primary or additional offense) which includes physical impact or contact. Victim injury is to be scored for each victim for whom the defendant is convicted of injuring and is limited to physical trauma.

In May, 1984, the supreme court approved an amendment to rule 3.701(d)(7) which provides: “Victim injury shall be scored if it is an element of any offenses at conviction.” The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla.1984) (emphasis added). The court noted that this change “makes clear that victim injury points are to be included when physical injury is an element of an offense at conviction.” Amendment to Rules of Criminal Procedure, at 824 n.*.

In light of this clarification, we agree that points for victim injury should not have been assessed against appellant when victim injury does not constitute an element of the convicted offense of armed robbery. The trial court undoubtedly would have reached the same conclusion had it had benefit of the supreme court’s subsequent clarification.

The erroneous inclusion of seven points for slight victim injury in appellant’s guideline computation in no way alters the correctness of the trial court’s ultimate sentencing decision. Deduction of the challenged points reduces appellant’s total score to 234 points, a total clearly within the 230-292 point range which corresponds to a recommended sentence of twelve to seventeen years for category three offenses. Accordingly, we strike the seven points assessed for victim injury but affirm the court’s sentencing decision in all other respects.

AFFIRMED as modified.

SCHOONOVER and LEHAN, JJ., concur.


text:
    Samuel Wade LONGMIRE, Appellant, v. STATE of Florida, Appellee.
    No. AW-478.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1984.
    Michael Allen, Public Defender, and Ann Terry Carley, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Andrea Smith Hillyer, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The order revoking appellant’s probation is affirmed. However, the case is remanded to the trial court for correction of an obvious error in the revocation order. The affidavit charged several substantial violations of probation. One of the alleged violations was the commission of a burglary. At the revocation hearing, however, the state chose to rely upon the other violations and produced no evidence pertaining to the alleged burglary. Although the revocation order recites that the appellant had violated his probation “as charged in the affidavit,” it is apparent that the court did not intend that its order encompass the burglary charge, there having been no evidence presented pertaining to that charge. Accordingly, the case is remanded to the trial court for the entry of an amended revocation order which expressly recognizes that the appellant was not found to have violated his probation by committing the alleged burglary. The appellant’s presence before the trial court shall not be required in connection with the entry of the amended order as required herein.

Affirmed and Remanded to the trial court for the entry of an amended order.

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.


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

text:
    Lee WHACK, etc., et al., Appellant, v. SEMINOLE MEMORIAL HOSPITAL, INC., etc., et al., Appellees.
    No. 83-883.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 1984.

      James T. Golden, Sanford, for appellant.
    Martin B. Unger of Swann & Haddock, P.A., Orlando, for appellees Dr. Roberts, Dr. Phillips and Drs. Roberts and Phillips, a Partnership.
    R. Barry Morgan of Adams, Hill & Ful-ford, Orlando, for appellee Seminole Memorial Hosp.
    G.B. McVay Voght of Pitts, Eubanks & Ross, P.A., Orlando,-for appellee Thomas Richards, C.R.N.A.
   STROKER, R.J., Associate Judge.

This is an appeal from a final order dismissing appellant’s second amended complaint as to defendant’s W. Vincent Roberts, M.D., and Stephen R. Phillips, M.D., d/b/a A Partnership, and the entry of a summary final judgment in favor of defendant Thomas Richards, C.R.N.A. and Seminole Memorial Hospital. Appellant contends that the trial court erred in dismissing the complaint and in denying a motion to reconsider or vacate the dismissal, and in entering a summary final judgment in favor of Richards and Seminole. We affirm the order of dismissal as to defendants Roberts and Phillips, d/b/a A Partnership, but reverse the summary final judgment in favor of Richards and Seminole.

The appellant’s/plaintiff’s decedent, Sylvia Whack, died on November 12, 1979, while undergoing a caesarian section at Seminole Memorial Hospital. Appellant, Lee Whack, as personal representative of the decedent, filed a complaint against Seminole Memorial Hospital, W. Vincent Roberts, M.D., Stephen R. Phillips, M.D. d/b/a A Partnership, and Thomas Richards, C.R.N.A., on November 18, 1981, two years and six days after the death of Ms. Whack. The complaint alleged that all defendants were negligent and the doctors involved committed medical malpractice in handling the decedent.

Appellees Roberts and Phillips filed a motion to dismiss asserting (1) the cause of action was barred by the applicable statute of limitation, Section 95.11, Florida Statutes; (2) the complaint failed to state a cause of action; and (3) the complaint failed to comply with Section 768.45, Flori-da Statutes. Appellee Seminole Hospital filed its motion to dismiss and subsequent amendment alleging in part that appellant has failed to comply with the notice provision of Section 768.28(6), Florida Statutes. On March 17, 1982, Judge Davis dismissed the complaint, allowing twenty (20) days to file an amended complaint. The order of dismissal stated that the complaint failed to state a cause of action in compliance with Section 768.45, Florida Statutes, against defendants, Roberts, Phillips and Richards. The order further denied defendants’ motions to dismiss based upon the expiration of the statute of limitation but did so without prejudice so this argument would be preserved for any subsequent motions for summary judgment which might be made.

At the end of the twenty (20) day period, appellant had not filed an amended complaint. On April 18, 1982, appellant filed a motion for an extension of time. This motion was granted and appellant filed his first amended complaint April 30, 1982. This amended complaint alleged that the defendants were negligent in failing to take precautions to protect the decedent; were negligent in performing the surgery; and failed to provide adequate emergency treatment. The causes of action were grounded upon wrongful death, negligence and medical malpractice. Appellees again filed their respective motions to dismiss which again raised as a defense the running of the statute of limitation. Appellees Roberts and Phillips filed a motion to compel discovery on May 12, 1982, which alleged appellant failed to answer interrogatories and failed to comply with their request to produce for inspection certain documents which were served on appellant December 11, 1981.

On May 25, 1982, a hearing was held on all pending motions. At this hearing, Judge Davis, sua sponte, gave notice of his intention to recuse himself because he knew one of the defendants (Roberts). Appellant indicated that he would comply with the court’s request that he answer the interrogatories submitted by Roberts and Phillips. The judge orally ordered that compliance must occur by July 1, 1982.

On June 3, 1982, Judge Davis entered an order of recusal which stated that he would not be involved further in the handling of the case. However,, on June 10, 1982, Judge Davis issued an order on all pending motions which was entered nunc pro tunc May 25, 1982. This order granted the motions to dismiss filed by Roberts and Phillips, as well as the one filed by Richards. Appellant was given twenty (20) days to file a second amended complaint. The order also granted Roberts’ and Phillips’ Motion to Compel Discovery requiring answers to the propounded interrogatories to be filed by July 1, 1982.

Appellant again failed to file a second amended complaint within the twenty day period. Defendants moved for judgment. Appellant then filed a motion to vacate the order of June 10, 1982, and filed a reply to the appellees’ respective motions. Following an order of reassignment, Judge Salfi permitted the late filing of Appellant’s Second Amended Complaint and gave defendants twenty days to file their responsive pleadings.

Roberts and Phillips served a motion for imposition of sanctions on October 21, 1982, based upon the June 10th order and appellant’s subsequent failure to comply with its mandate. On November 17, 1982, the court granted Roberts’ and Phillips’ motion and imposed the sanction of involuntary dismissal of appellant’s second amended complaint. On November 30, 1982, appellant served a motion for reconsideration of the order of dismissal, citing in part the fact that the court never disposed of his motion to vacate pending since June 18, 1982.

Appellees Richards and Seminole Hospital filed respective motions for summary judgment which alleged that appellant’s action for wrongful death was barred by the statute of limitation delineated in Section 95.11(4)(d), Florida Statutes (1979). Roberts and Phillips also filed a motion for summary judgment alleging that both the actions for wrongful death and for medical malpractice are barred by Sections 95.-ll(4)(b) and (4)(d), Florida Statutes.

On May 11, 1983, Judge Salfi issued an “Opinion and Decision” which denied Appellant’s Motion for Reconsideration on the grounds that Judge Davis’ order of June 10, 1982 (entered nunc pro tunc May 25, 1982) was valid. The court also granted Seminole Hospital’s and Richards’ Motions for Summary Judgment. Final Summary Judgment was entered for both parties.

First we address the issue of appellant’s failure to comply with the court’s order compelling answer to interrogatories. Appellant submits that Judge Davis’ order was void because it was entered after the judge recused himself from the case. In addition, appellant argues that the sanction of dismissal was an abuse of the trial court’s discretion because the failure to provide interrogatories was caused by excusable neglect. Both contentions are without merit.

An order entered nunc pro tunc means “now for then” and refers to a judicial act which memorializes a previously taken judicial act. When applied to the entry of a legal order, it normally refers, not to a new or de novo decision, but to the trial judge’s previous action of which there is not a sufficient record. See Briseno v. Perry, 417 So.2d 813 (Fla. 5th DCA 1982); Luhrs v. State, 394 So.2d 137 (Fla. 5th DCA 1981).

In the case sub judice, the nunc pro tunc order dated June 10, 1982, was not a de novo decision following recusal but instead represented only the ministerial act of making a record of the previously entered oral pronouncement of May 25, 1982. At the time the oral pronouncement was made, the court did have the authority to enter the order. Entering the order of recusal did not absolve the court of jurisdiction for those acts taken prior to recusal, nor did recusal result in making those orders previously entered void. Consequently, Judge Davis’ order issued June 10, 1982, entered nunc pro tunc May 25, 1982, was valid and properly provided a basis for the court’s finding that sanctions should be imposed for failure to answer interrogatories propounded by appellees.

Appellant’s contention that the sanction of dismissal was an abuse of the trial court’s discretion is also without merit. The record clearly shows that appellant’s counsel acted with willful disregard of the court’s authority and gross indifference to an order of the court. Appellant made no showing that he either attempted to comply with the discovery order or communicated any explanation or excuse to the court by the time of the hearing. Therefore, there was no abuse of discretion in imposing the sanction of dismissal. See Kyle v. McFadden, 443 So.2d 497 (Fla. 1st DCA 1984); Mercer v. Raine, 443 So.2d 944 (Fla.1983) rehearing denied February 9, 1984. Consequently, the order of dismissal of the claims against Roberts and Phillips, and the denial of Appellant’s Motion for Reconsideration are hereby affirmed.

We now address the trial court’s order granting summary judgments in favor of appellees Richards and Seminole Hospital which were granted on the basis of the expiration of a two year statute of limitation. Section 95.11(4)(b), Florida Statutes, provides:

An action for medical malpractice shall be commenced within two years from the time the incident occurred giving rise to the action, or within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence, provided however, that in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued, (emphasis added).

Also included within the two year statute of limitation is an action for wrongful death. See § 95.11(4)(d), Fla.Stat.

Appellant raises for the first time on appeal that Seminole Hospital is a public hospital and therefore pursuant to Section 768.28, Florida Statutes, a four year statute of limitations should apply. Since ap-pellee Seminole Hospital twice averred in its pleadings that it was a public entity the four year statute of limitations would apply. The summary judgment in favor of Seminole Hospital is reversed and remanded.

Paragraphs seven through twelve of the second amended complaint contain allegations of medical malpractice on the part of appellee Richards. Appellant alleged below and on appeal that he could not have discovered the alleged malpractice until furnished with the autopsy report containing specific physical findings and conclusions concerning cause of death. Appel-lees’ motions for summary judgment were accompanied by an affidavit from a pathologist who indicated that the autopsy report contained nothing which would indicate any medical malpractice occurred. However, appellant countered with an affidavit from a Dr. Ruffalo which stated that the autopsy report was not consistent with the pathologist’s diagnosis. This raises a question of fact concerning the cause of death and the existence of malpractice. It is clear that the appellant could not have discovered this question without the autopsy report.

Appellant did file suit within two years of his receipt of the autopsy report. The summary judgment in favor of appel-lee Richards is also reversed and remanded for further proceedings in accord with this order.

AFFIRMED in part, REVERSED in part.

ORFINGER and COWART, JJ., concur.