Gosby v. Third Judicial Circuit Court

562 So. 2d 775 | Fla. Dist. Ct. App. | 1990

PER CURIAM.

Jerry Wesley Gosby, an inmate in the Cross City Correctional Institute, petitions this court to issue a writ of mandamus. He shows that he filed a petition for name change in the Third Judicial Circuit in May, 1989. The Department of Corrections has filed a response to the petition pending below and Gosby has twice filed notices of hearing, yet the circuit court apparently refuses to enter a final order. Gosby argues that he is entitled to a ruling and asks this court to compel the lower tribunal to act.

We find that petitioner is not entitled to the relief he seeks. He has not alleged that he has actually scheduled a hearing on his petition with the judge’s office, or that if such a hearing was held that he or his legal representative would attend. Absent such allegations, we do not believe the trial court is obligated to rule on the name change petition and we therefore deny the petition for writ of mandamus.

We note that our decision conforms to the reasoning expressed by Judge Goshorn in his dissenting opinion in Lane v. Kaney, 557 So.2d 210 (Fla. 5th DCA 1990) and certify to the Florida Supreme Court that conflict exists between our holding in this case and the majority’s decision in Lane.

PETITION DENIED.

ERVIN and NIMMONS, JJ., and THOMPSON, FORD L. (Ret.), Associate Judge, concur.