
    HORN & HARDART, FLORIDA, INC., Petitioner, v. John A. DIETZ, Respondent.
    No. 82-876.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.
    Rehearing Denied Aug. 31, 1982.
    G. Michael Keenan of Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauder-dale, for petitioner.
    Roy W. Jordan, Jr., West Palm Beach, for respondent.
   PER CURIAM.

This is a petition for common law certio-rari. We conclude that a departure from the essential requirements of law has been demonstrated, grant the writ, and quash the order below. This case began in County Court and after service upon the defendant, a default occurred due to defense counsel’s failure to appear at a preliminary hearing. The County Court vacated the default finding excusable neglect and a meritorious defense. The Circuit Court reversed the County Court concluding that excusable neglect was not demonstrated as a matter of law. The matters presented to the trial court were essentially factual in nature, and it was up to the trial court (the County Court Judge) to make a determination of excusable neglect. This ruling is a discretionary one, and we conclude that the Circuit Court sitting in its appellate capacity erroneously substituted its judgment for that of the factual finder. The Circuit Court thus exceeded its scope of review.

Certiorari is hereby granted, the order of the Circuit Court quashed, and the matter remanded to the County Court for further proceedings.

BERANEK and DELL, JJ., concur.

ANSTEAD, J., dissents without opinion.  