author: BOYD, Justice.

text:
    STATE of Florida ex rel. SARASOTA COUNTY, etc., Relator, v. Chief Judge Tyrie A. BOYER et al., Respondents.
    No. 49794.
    Supreme Court of Florida.
    May 31, 1978.

      Richard E. Nelson, Richard L. Smith and Leslie Telford, of Nelson, Hesse, Cyril & Weber, Sarasota, for relator.
    Parker D. Thomson and Robert T. Wright, Jr., of Paul & Thomson, Miami, for respondents.
   BOYD, Justice.

Sarasota County has suggested that a writ of prohibition be issued to the First District Court of Appeal in a case pending there. After a “show cause” order was issued and a return received, oral arguments were held. We have decided that the peremptory writ should not be issued.

The facts of the case are contained in relator’s suggestion and the parties’ briefs. General Development Corporation is developing Myakka Estates, an 8,000 acre planned residential community in the City of North Port in Sarasota County. By virtue of its substantial impact on the health, safety or welfare of citizens of more than one county, the development is a DRI (development of regional impact), as defined within the Environmental Land and Water Management Act, Chapter 380, Florida Statutes. The Act sets out an approval process for a DRI to be located within the jurisdiction of a local government that has adopted a zoning ordinance.

That process was followed in this case. General Development submitted to the City an application for development approval. The application laid out a master plan for the full development and requested approval to develop four units. The application •was approved by order of the City. But the City stated in the order that, as to each increment of units beyond the initial one, a new application for development approval would have to be submitted. An application for the first additional increment of units (units 5, 6 and 7) was subsequently submitted to the City. Following hearings on the application the City entered a conditional order approving it. The Southwest Florida Regional Planning Council and the Division of State Planning appealed the second order, as they are entitled by the Act to do, to the Land and Water Adjudicatory Commission.

The Commission appointed a hearing officer to hear preliminarily the matter. At this juncture Sarasota County was allowed to intervene. On October 6, 1975, following a pre-hearing conference, the hearing officer ordered that the final hearing on the appeal would be a de novo hearing, and General Development Corporation would present its entire case for approval of units 5, 6 and 7. The officer stated in the order that he was aware of the proceeding held before the City for approval of the master plan. But, he stated, he had reviewed the transcript and had found the proceeding not to have been conducted in compliance with the Administrative Procedures Act. He ordered, therefore, that a full formal hearing was required as to approval of the three units comprising the first additional increment.

General Development moved that the final hearing be postponed for consideration of the question whether approval of a DRI could be broken into a master plan approval and increment approval to follow. The motion was heard and on January 14, 1976, the hearing officer entered a comprehensive pre-hearing order. The order set down the time and place of the final hearing and, once again, declared the scope of the hearing would not be limited by the initial order of approval for the master plan. Furthermore, as in the October 6th order, it ordered General Development to open the hearing with a presentation of its entire case for approval of units 5, 6 and 7.

On February 6, 1976, General Development, under authority of the APA, petitioned the District Court of Appeal for review of the Comprehensive Prehearing Order. Its argument against the order was that the hearing officer had erred in interpreting the APA as it applied to the proceeding before the City on the initial development application and that the error was forcing it to participate in a hearing that would be much more expensive and complex than necessary. The expense and complexity would be generated, it argued, because approval of the master plan for the additional units would have to be gained. If the hearing were limited as General Development wanted, it would have to show only that the additional units were in compliance with the master plan. Sarasota County moved to dismiss the petition for two reasons. One was that an adequate remedy would be provided by review of the final agency decision. (Nonfinal agency action is not reviewable if review of the final decision provides an adequate remedy. See Section 120.68, Florida Statutes.) The second was that the petition was untimely since the issues raised were first decided in the October 6th order. The District Court refused to dismiss the petition.

By way of the suggestion for prohibition Sarasota County renews its claim that the District Court lacks jurisdiction to consider General Development’s petition. Under traditional notions of prohibition, a superior court’s prohibition power is properly invoked where it has appellate or supervisory jurisdiction over an inferior tribunal about to act beyond its jurisdiction. But, General Development contends, whether the traditional test for prohibition is met or not, this Court’s prohibition power, as to district courts of appeal, may be applied only in an extremely narrow class of cases. The Constitution confers on this Court jurisdiction to “issue writs of prohibition to courts and commissions in causes within the jurisdiction of the supreme court to review.” Article V, Section 3(b)(4), Florida Constitution. General Development traces the history of this Court’s decisions on prohibition power under the 1885 Constitution and concludes that, under the present Constitution, as to decisions of district courts of appeal, our prohibition power is confined to cases that fall within the jurisdiction conferred by Section 3(b)(1) of Article V. That section confers jurisdiction to review district court decisions “initially and directly passing on the validity of a state statute or federal statute or treaty, or construing a provision of the state or federal constitution.” We will not adopt such a severely restricted view of our power of prohibition. We have not done so in practice in the past. If prohibition is to remain a preventive remedy, to adopt such a construction would leave us with no prohibition power whatsoever, and, therefore, would make the constitutional provision meaningless.

These are a few of the occasions when we have entertained suggestions of prohibition directed to district courts of appeal, on a basis other than the one urged by General Development, and have found our prohibition power to have been invoked properly: to enforce dismissal of an untimely petition for review of agency action, one of the bases for Sarasota County’s suggestion in this case; to consider the taking of an appeal when the notice was prematurely filed; and to consider acceptance of a transfer of an appeal from a sister court with whom the appeal had been filed mistakenly. None of the cases involved the validity of statutes or treaties or a constitutional construction. Were we to adopt General Development’s viewpoint we would lose not only our prohibition authority over the above-mentioned cases, but over nearly every other case in the district courts, as well. Moreover, we would open to challenge suggestions for prohibition in an equally significant group of cases in trial courts.

Furthermore, and most importantly, General Development’s construction would completely strip this Court of the remedy of prohibition, or else would fly in the face of the writ’s purpose. Prohibition is preventive and not corrective. It cannot be used to revoke an order already entered. Nor will it lie where proceedings have been completed. It cannot be known whether a district court decision will pass on a statute’s validity or construe the Constitution so as to give us jurisdiction to review, until the decision has been rendered. At that juncture it is too late to apply the preventive measure of prohibition.

Sarasota County’s construction, of our constitutional power of prohibition is much broader than General Development’s. The County says any district court decision which we may review is subject to our prohibition. It would include, therefore, the various decisions of district courts, reviewable by certiorari. But the construction is plagued by the same problem. How can we know if we have jurisdiction of the decision until it has been decided? And, then, how can we issue a preventive writ to undo what has been done? The answer is that we may review by prohibition any case pending in the district court if the relator shows us that on the face of the matter it appears that the district court is about to act in excess of its jurisdiction.

This answer flows from one .of two sources. First, we have found prohibition jurisdiction invoked properly where there has been shown our potential to review a pending proceeding upon its conclusion. For example, in Tsavaris v. Scruggs, we issued a rule nisi in prohibition in the pending trial of a defendant accused of a capital crime. We did not know, of course, whether conviction would result and a sentence of death would be imposed so as to give us jurisdiction by direct appeal. But, we knew the possibility of a death sentence was real, since the crime charged was a capital offense. Second, to narrow our prohibition power more than within the bounds we have set in this opinion would run afoul of a command of the Constitution. No cause in this state is to be dismissed because an improper remedy has been sought. Article V, Section 2(a), Florida Constitution. At the' same time we have held that

Once a petitioner seeks relief in a particular court by means of a petition for an extraordinary writ ... he has picked his forum. He is not entitled to a second or third opportunity for the same relief by the same writ in a different court. Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975).

Undoubtedly, we would be besieged by suggestions for prohibition that properly, under any narrow construction of our prohibition power, would lie only in the district court. We would then have to overrule or modify Jenkins in order to avoid collision with the Constitution’s command concerning “improper remedies.” Today’s decision to allow prohibition in any case pending in a lower court about to act in excess of its jurisdiction rescues the Court from such an unhappy result.

Our jurisdiction has been properly invoked in this case. But, it does not follow that the writ of prohibition should issue. Section 120.68(1), Florida Statutes, of the Administrative Procedure Act provides judicial review of nonfinal agency action if the review of the final agency decision would not prove an adequate remedy. That review of a final decision by the administrative agency in this case would not provide an adequate remedy is a decision the District Court made when it denied Sarasota County’s motion to dismiss. In essence, Sarasota County is asking us to hold that the District Court abused its discretion in so deciding. This we will not do. It is for the district courts of appeal to determine the adequacy of remedies after final agency decision in order, then, to determine the availability of a preliminary appeal under Section 120.68(1), Florida Statutes; this Court will not review their judgment on the basis of that issue, alone.

Sarasota County asks us to issue the writ, also, for the second reason advanced in its motion before the District Court. It claimed the petition was not timely since the disputed issues were decided in the October order. General Development concedes the content of the October order and that its petition was untimely if taken from that order. But it indicates that the order had no content until the substantive law to be applied by the hearing examiner was determined by the comprehensive order entered in January. At that point, argues General Development, the content of the October order became so enmeshed with the comprehensive order that all aspects of the latter were reviewable. As a general rule, of course, matters determined in an order which has become final without appeal are not later subject to appellate review simply because a later order affected those matters or applied them to other interlocutory matters under consideration by a hearing examiner. In the posture of this proceeding, however, we are unwilling to say that prohibition is available to prevent the District Court from independently considering whether the October 6 procedural orders were so intertwined with the later substantive rulings as to make the former of no substance without the latter. Just as with the determination as to adequacy of remedy, the District Court was free to evaluate the entangled nature of the respective orders and it was free to decide whether, in this case and under these circumstances, an earlier and final procedural order would be the subject matter of review when later incorporated by reference in a more comprehensive order containing both substantive and procedural matters. Prohibition is simply not available to prevent the District Court from exercising its discretion in these decisions.

The Rule Nisi in prohibition is discharged.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      . The County also petitioned for a writ of cer-tiorari, based on conflict. We have determined that conflict is absent.

      . General Development Corp. v. The Florida Land and Water Adjudicatory Commission, et al., District Court of Appeal Case No. BB-69.

      . See § 380.06(1), Fla.Stat.

      . § 120.57, Fla.Stat.

      . § 120.68(1), Fla.Stat.

      . English v. McCrary, 348 So.2d 293, 296-298 (Fla.1977).

      . State ex rel. Florida Department of Natural Resources v. District Court of Appeal, Second District, 355 So.2d 772 (Fla. filed February 16, 1978).

      . State ex rel. Shevin v. Rawls, 326 So.2d 173 (Fla.1976).

      . State ex rel. Shevin v. Rawls, 290 So.2d 477 (Fla.1974).

      . English v. McCrary, note 6, above.

      . State ex rel. Harris v. McCauley, 297 So.2d 825 (Fla.1974).

      . State ex rel. Jennings v. Frederick, 137 Fla. 773, 189 So. 1 (1939).

      . Sup.Ct. Case No. 48,637, 360 So.2d 745, Opinion filed March 17, 1977, reh. denied.

      . Art. V, § 3(b)(1), Fla.Const.

      . See, e. g., Rule 9.040(c), Fla.R.App.P.

      . See Art. V, § 4(b)(3), Fla.Const.

      . If district court decisions conflict on the availability issue in “cases on all fours” we may take jurisdiction by certiorari. But we will not issue prohibition to disturb the district court’s right to make the decision.


source: Caselaw Access Project

author: HATCHETT, Justice. ADKINS, Justice,

license: Public Domain

text:
    STATE of Florida, Appellant, v. Samuel KRAHAM, Appellee.
    No. 52697.
    Supreme Court of Florida.
    May 31, 1978.
    Rehearing Denied July 31, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, Florida, for appellant.
    Allan L. Hoffman, West Palm Beach, for appellee.
   HATCHETT, Justice.

We must determine whether Section 847.-011, Florida Statutes (1975) which makes unlawful the sale of obscene material is so inconsistent with the right to privately possess obscene material, as expressed in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) as to render the statute unconstitutional. We have jurisdiction under Article V, Section 3(b)(1), Florida Constitution. We hold the statute to be constitutional.

The appellee, Samuel Kraham, was charged by information with two counts of selling obscene motion pictures in violation of Section 847.011, Florida Statutes (1975). After entering a plea of not guilty, he moved to dismiss the information. After several hearings the trial court granted the appellee’s motion citing Stanley v. Georgia, supra, and stating:

A regulation that criminally punishes one for providing that citizen with material he has a Constitutional right to possess is illogical and arbitrary [see dicta by Mr. Justice Stevens (United Jewish Organizations, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229) at page 996 of 97 S.Ct. (1977)]. The Legislature could enact laws specific enough to accomplish the regulation it has a right to impose. The present law is overbroad for that purpose. Evenhanded enforcement of F.S. 847.011 is not possible and therefore is contrary to the Constitution; . . ”

At about the time the trial judge entered his order, this court filed its opinion in Johnson v. State, 351 So.2d 10 (Fla.1977), holding the statute to be constitutional. Since our consideration on the overbreadth issue of this statute is sqn recent, we see no reason to again set forth, our reasons for upholding its constitutionality.

Accordingly, the order of the trial court is reversed and the case remanded.

It is so ordered.

OVERTON, C. J., and BOYD and ENGLAND, JJ., concur.

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

The order of the trial court granting the Motion to Dismiss contains the following:

“Like it or not, mere private possession of obscene material is not a crime [Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969)]. The State has legitimate and broad power to regulate the public dissemination of obscene materials [Roth v. U. S., 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)].
All powers of regulation are to some extent prohibitory in the sense that acts may be precluded from performance except when done in compliance with standards assuring the preservation of public health, safety, or welfare.
It then follows that a regulation may only be imposed upon a free people if it is not arbitrary and is founded upon, directly related to, and necessary for preserving the public health, safety, or welfare. Regulations to assure that obscene materials do not fall into the hands of impressionable youngsters not mature enough to form proper judgments or persons mentally deficient to the extent they are incapable of controlling their actions, all can be justified against a charge of arbitrariness. Regulations which prevent forcing persons who desire not to view obscene materials from viewing them can also be so justified. The free, stable, mature citizen who does desire to view obscene material has that right under the Stanley v. Georgia decision cited above. A regulation that criminally punishes one for providing that citizen with material he has a Constitutional right to possess is illogical and arbitrary [see dicta by Mr. Justice Stevens at page 996 of 97 S.Ct. (1977)]. The Legislature could enact laws specific enough to accomplish the regulation it has a right to impose. The present law is overbroad for that purpose. Evenhanded enforcement of F.S. 847.011 is not possible and therefore is contrary to the Constitution.”

At present, the controlling case for the definition of obscenity is Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1972), this was a 5 to 4 decision that overruled or clarified Roth v. U. S., 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). From Roth in 1957 until Miller in 1972, the majority of the court could not agree on a standard to determine what constitutes obscene material subject to regulation under the state’s police power.

Miller set forth a few plain examples of what the state’s statute could define for regulation. The guidelines are (a) whether the average person, applying contemporary community standards would find that the work taken as a whole, appeals to the prurient interest, (b), whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; (c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.

It is interesting to note that in Miller 4 members of the court felt that it would be impossible to draft a statute that would not be void for vagueness and violate due process and equal protection.

The record in this case indicates that the person purchasing the material was a police officer; there is no allegation that he was offended by the material; and there is no allegation regarding which section of Florida Statute 847.011 has been violated.

There are three reasons which persuade me that this criminal prosecution is constitutionally impermissible:

(1)This statute regulates expression and implicates first amendment values. However distasteful these materials are to some, they are nonetheless a form of communication and entertainment acceptable to a substantial segment of societies; otherwise they would have no value in the market place;

(2) The statute is predicated on the somewhat illogical premise that a person may be prosecuted criminally for providing another with materials he has a constitutional right to possess;

(3) The present constitutional standards both substantive and procedural which apply to these prosecutions are so intolerably vague that evenhanded enforcement of the law is a virtual impossibility.

It is interesting to note that the community standards’ test as set forth by the Supreme Court had been declared void for vagueness in Connally v. General Const. Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed.2d 322 (1926), in a case involving application of the minimum wage law, where the minimum wage was to be set by contemporary community standards. The court stated that men of common intelligence must necessarily guess at its’ meaning or differ as to its’ application and that the statute violated the first essential of due process of law because it lacked any ascertainable standard of guilt.

The Constitution protects the right to receive information and ideas regardless of their social worth. Where material is being distributed to a willing adult and is not designed or intended for minors or obtrusively forced upon unwilling recipients, there is no substantial governmental interest which would justify shutting off all avenues for the willing adult to obtain the material the constitutional states he has a right to possess. The state’s power to proscribe obscenity as constitutionally unprotected, could not be exercised in this case where the book was sold to a consenting adult and was not thrusted upon the general public. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542.

I would affirm the trial court.


author: PER CURIAM.

text:
    Glen Lawrence MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 48464.
    Supreme Court of Florida.
    June 2, 1978.
    Rehearing Denied July 24, 1978.
    Louis Ossinsky, Jr., of Ossinsky & Krol, Daytona Beach, Florida, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, Florida, for appellee.
   PER CURIAM.

We are reviewing by direct appeal Glen Lawrence Martin’s conviction for first degree murder and sentence of death imposed by the Circuit Court, Seventh Judicial Circuit, Volusia County. Appellant’s conviction and sentence were received for violation of Section 782.04(l)(a), Florida Statutes, which defines, as one form of murder in the first' degree and a capital felony:

“The unlawful killing of a human being . which resulted from the unlawful distribution of heroin by a person 18 years of age or older when such drug is proven to be the proximate cause of the death of the user . . .

In relation to his conviction or sentence, Martin presents nine points on appeal, only one of which we address. We reverse and remand for a new trial because heroin obtained during a search which violated the Fourth Amendment to the U.S. Constitution was admitted into evidence at trial.

These are the pertinent facts. After drinking at a bar late on the night of August 2, 1974, Cindy Burgman and Terry C. Minton met Lacey Lee Roy Stilley, a heroin addict, to arrange a purchase of heroin. The two gave Stilley $80 and accompanied him to the parking lot of a church were Stilley departed and disappeared from their sight. Shortly thereafter Stilley returned with eight packets of what he told them was heroin. Neither Minton nor Burgman had any contact with the person from whom the packets were purchased. At an apartment occupied by Fred Miller and a juvenile girl, Stilley, Burgman and Minton agreed to inject contents of the packets. Stilley cautioned Minton that an injection of heroin could prove fatal since he had been drinking. Minton replied that he was an experienced heroin user. Shortly thereafter Minton was discovered unconscious and not breathing. Efforts to resuscitate him failed and within half an hour he was dead. The police were called and Stilley remained with the body until they arrived.

The following day Stilley told police that around noon that day he had made a purchase of heroin from Martin at the Holiday Inn, where Martin was employed as a laundry worker. Without a search warrant, Officer Willie Azama proceeded to the Holiday Inn where he spotted Martin near the laundry room. Although Martin did not exhibit suspicious behavior, Officer Azama interrupted him, searched him and discovered heroin in his possession and, with the fruits of the search in hand, arrested him.

Stilley and Martin were jointly indicted for first degree murder. Stilley was permitted to plead guilty to a lesser crime in return for testimony that Martin sold him heroin used by Minton moments before death, thereby linking Martin to the murder.

Before trial a hearing on a motion to suppress introduction into evidence of the heroin seized at the Holiday Inn resulted in the motion being granted because the trial judge found the search unreasonable within the meaning of the Fourth Amendment. During trial, the State asked the judge to reconsider his ruling because of new evidence and case law that had not been before the court at the hearing. After argument of counsel the judge reversed his ruling based on State v. Miller and Cupp v. Murphy. Our examination of the two cases leads us to believe neither supports the judge’s decision to reverse his original ruling.

In State v. Miller the facts were these. Two State Highway Patrol Officers, parked in their patrol cars at night, observed suspicious maneuvering of a red truck around and in a site where a motel was under construction. After the truck left the site the officers followed and signaled to pull over to the side of the road. As they were questioning the occupants the officers noticed a roll of carpet in plain view in the back of the truck. While one trooper detained the occupants the other returned to the construction site to discover that the motel, carpeted in the same color as the carpet in the truck, was missing carpet in one room. He returned to the truck and arrested the occupants. The carpet was admitted into evidence at trial and the defendants were convicted. The District Court of Appeal, Fourth District, upheld the convictions despite the claim that the carpet should have been excluded from evidence. Certainly the court was correct. The detention of the truck’s occupants was lawful because the troopers’ observation of suspicious movement of the truck gave them probable cause to detain while they determined whether a crime had been committed. While next to the truck, where they had a right to be, the officers inadvertently observed, in plain view, the carpet. This was enough to justify seizure of the carpet under “the plain view” doctrine. Since the Fourth Amendment was not violated by seizure of the carpet, it was not subject to the Fourth Amendment exclusionary rule.

These are the facts in Cupp. Murphy, the husband of a woman who had been murdered by strangulation, voluntarily came .to the police station for questioning. Although the police had probable cause to believe Murphy had committed the murder, they did not arrest him. As they were questioning Murphy the police noticed a dark spot on his finger and suspecting that it was dried blood they asked him if they could take a scraping of his fingernails. He refused and after rubbing his fingers behind his back put them in his pockets, making a metallic noise such as change or keys rattling which suggested destruction of any evidence of the crime that might be provided by fingernail scrapings. Over his protest, the police took fingernail scrapings without a warrant. Stressing that the evidence was not likely to remain long intact, the court upheld the warrantless search and seizure as reasonable because of the existence of probable cause, and the limited intrusion incident to the detention, as well as the destruction of the evidence ongoing at the time of the search.

The case before us does not involve the “plain view” doctrine, nor did the police have reason to believe evidence was likely to be destroyed before a warrant could be obtained. Therefore, neither Miller nor Cupp lend it their support.

It is apparent from Officer Azama’s testimony at the suppression hearing and at trial that, while he may have believed he had probable cause to arrest, his motive in detaining Martin at the Holiday Inn was not to arrest but to search:

“Q. Why didn’t you just arrest him? O’
“A. I needed the evidence.
“Q. You needed the evidence so the search was made for the purpose of getting the evidence. Is that your testimony?
“A. I needed the evidence to arrest him, yes.
“Q. And you didn’t feel you had that evidence until you made the search.
“A. After I made the search, yes.
“Q. I said before you made the search you didn’t feel you had the evidence, so you had to arrest him following the search in order to get the evidence. Is that what you are telling me?
“A. I didn’t understand that question. i>
“Q. You didn’t think you had the evidence for making the arrest, so you searched him to find the evidence so you could make an arrest.
“A. Yes, sir.”

Searches without warrants are unreasonable under the Fourth Amendment unless justified by one of the exceptions to the rule. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). None of the exceptions apply. Appellant did not consent to the search, nor were the police in hot pursuit or conducting a stop and frisk. The search was not incident to a lawful arrest; it preceded the arrest and in the arresting officer’s mind the fruits of the search were the justification for the arrest. Probable cause to search, plus an emergency which makes it impracticable to obtain a warrant will justify a warrantless search. The issue of probable cause aside, there was no such exigency. Martin was neither in flight or in a moving vehicle, nor was he about to destroy evidence or remove contraband. He was at work and there was no information he was likely to leave. The police had every opportunity to obtain a warrant.

This case should point out the dangers in warrantless searches. If law enforcement officers, without justification for the lack of a magistrate’s protective interposition, are permitted to search a person implicated by a heroin addict for a crime in which the addict is a suspect, then no citizen is free from searches condemned by the Fourth Amendment.

The admission at trial of evidence seized in a search in violation of the Fourth Amendment requires reversal of appellant’s conviction and remand for new trial.

It is so ordered.

BOYD, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

OVERTON, C. J., and ADKINS and ENGLAND, JJ., dissent.

      . Art. V, § 3(b)(1), Fla.Const.

      . “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

      . Martin was charged with possession of heroin on May 23, 1975 by the same indictment. He pleaded guilty to possession and was adjudicated guilty.

      . The heroin was subsequently admitted into evidence.

      . 267 So.2d 352 (Fla. 4th DCA 1972).

      . 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973).

      . State v. Parnell, 221 So.2d 129 (Fla.1969).

      . For hearsay to support a finding of probable cause, the police must have reason to believe the informant was credible or his information reliable. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We can understand well the officer’s hesitancy to arrest Martin on Stilley’s information alone, given both Stilley’s reputation as a heroin addict and circumstances surrounding Minton’s death which likely would result in a charge of murder against Stilley unless he could implicate someone “higher up” in the chain of heroin distribution.


author: SUNDBERG, Justice.

text:
    Donna Barnett KNAUER, Nadia Nightingale Allen, Downing Nightingale, Jr., Yvonne Barnett West, Caroline Barnett Bryan, Jane Claudia Barnett Gordon and Madeleine Camp Franklin, Petitioners, v. Charles BARNETT and William R. Barnett, Trustee, Respondents.
    No. 50504.
    Supreme Court of Florida.
    June 8, 1978.

      Jack F. Wayman, Jacksonville, for petitioners.
    C. Harris Dittmar of Bedell, Bedell, Ditt-mar & Zehmer, Jacksonville and Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for respondents.
   SUNDBERG, Justice.

This cause is a petition for writ of certio-rari to review a decision of the District Court of Appeal, First District, reported at 336 So.2d 1213, which is alleged to be in conflict with In re McCollum’s Estate, 88 So.2d 537 (Fla.1956) and Taylor v. Taylor, 279 So.2d 364 (Fla. 4th DCA 1973). Conflict is predicated upon the issue of whether the paternity of a child who has been legitimatized by both a written, attested acknowledgment and intermarriage of his parents pursuant to the provisions of Section 731.29(1), Florida Statutes (1973), is subject to attack by the collateral kindred of the child’s father.

William R. Barnett, respondent/trustee here, sought a declaratory judgment in the Circuit Court for Duval County, Florida, to determine the parties entitled to receive the income and corpus of a trust previously held for the benefit of William L’Engle Barnett (hereinafter referred to as William Barnett). Under the terms of a trust document executed by William in 1959, the income and corpus are distributable to the surviving “blood issue” of William Barnett or to the collateral kindred of William if no blood issue exists. Charles Barnett, who claims to be the son and blood issue of William, was a defendant in the suit below and is a respondent in the instant proceeding. The collateral kindred of William, who claim that he had no blood issue and, consequently, that they are entitled to the trust property, are petitioners here. The issue before the lower courts and here is whether Charles is the blood issue of William under a construction of Section 731.29(1), Florida Statutes (1973), which provides:

Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father. Such illegitimate child shall inherit from his mother and also, when so recognized, from his father, in the same manner as if the child had been born in lawful wedlock. However, such illegitimate child does not represent his father or mother by inheriting any part of the estate of the parents’ kindred, either lineal or collateral, unless his parents have intermarried, in which event such illegitimate child shall be deemed legitimate for all purposes.

The trial judge construed the statute to render the parentage of Charles a factual issue to be resolved in the declaratory judgment proceeding even though William had executed a written, attested document acknowledging himself to be the father of Charles and had married Charles’ mother, Marcelle. The judge concluded that because the provision refers to subsequent intermarriage of the parents, such means the child’s natural (biological) parents, thereby leaving open to future adjudication the question of whether the acknowledging and marrying “father” was, in fact, the natural parent of the child. The decision of the district court under review recites the evidence upon which the circuit judge based his finding that Charles is not the blood issue of William:

Charles Barnett was born in Paris, France, on May 28,1913, to Marcelle Per-ron, who was then 19 years old according to the official French record of his birth. On June 12, 1913, he was baptized in the Church of the Parish of St. Sulpice, Arch-bishopry of Paris, and his baptism was noted in the church’s Baptismal Register with the space for his father’s name left blank. In both the official civil and church records, Charles was originally identified as “Charles Perron.”
On August 13, 1918, William L’Engle Barnett and Marcelle appeared before Deputy Mayor Christie of the 17th District of Paris and declared in the presence of witnesses that they “recognize as their son” the child Charles, born to Marcelle on May 28,1913. An official entry of this act of recognition was made in the birth records of the 17th District of Paris and was signed by William, Marcelle, two witnesses and the Deputy Mayor. Four days later, on August 17, 1918, William and Marcelle appeared again before Deputy Mayor Christie, and he performed their lawful marriage, recording it in the official records. At the time of the marriage, Deputy Mayor Christie delivered to William the “Livret de Famille” the official family booklet required by French law to be retained by the head of each family as the official record of the family members. In that booklet, Deputy Mayor Christie officially recorded the marriage of William and Marcelle on August 17, 1918, and the birth of their child Charles on May 28, 1913, affixing his seal and signature.
On July 1, 1920, William and Marcelle caused Charles’ official birth record to be corrected to change his name from Charles Perron to Charles Barnett. The French official corrected the original birth record by striking through the name “Perron” and writing above it the name “Barnett” and by writing on the original birth record the following:
“Recognized the 13 August 1918, at the courthouse of the 17th district of Paris by William Barnett & Marcelle Amelie Anna Perron”
and
“Legitimized by marriage of William Barnett & of Marcelle Amelie Anna Perron, celebrated at the courthouse of the 17th district of Paris, the 17 August 1918.”
On September 10, 1921, William and Marcelle caused the Baptismal Register of the Church of the Parish of St. Sulpice to be rectified to show “William Barnett” as the father of Charles and to change the name in the record from “Charles Perron” to “Charles Barnett.” The change was made by striking through the name “Perron” and writing above it the name “Barnett” and by noting on the original record that it has been “rectified at the archbishopry on the 10 Sept. 1921.” Also on September 10, 1921, William and Marcelle obtained a certificate from the Secretary of the Archbishopry certifying the baptism on June 12, 1913, of Charles, born May 28,1913, the son of William and Marcelle.
On October 2, 1922, William and Mar-celle placed Charles in the College Chap-tal in Paris, where he received his formal education at their expense until November 7, 1928. During part of that time, William and Marcelle lived in Paris, and Charles lived with them.
On June 5,1926, William was issued an identity card by the Paris police which showed him to be an American citizen with a Paris residence, and listed Mar-celle as his spouse and Charles, born 1913 in Paris, as his child. A similar identity card was issued at the same time to Mar-celle.
On November 7, 1928, Charles left France, traveling with William and Mar-celle, and arrived in the United States on November 13, 1928. The three then drove from New York to William’s home in Tangerine, Florida. Upon his arrival in Florida, Charles was registered in the Mt. Dora High School as the son of William L’Engle Barnett of Tangerine from which he graduated in the spring of 1930. In September, 1930, William took Charles to Gainesville and enrolled him in the University of Florida paying his tuition and living expenses. Between November, 1928, and September, 1930, Charles lived with William and Marcelle in the family home in Tangerine.
On August 25, 1933, William and Mar-celle swore before a notary public that a petition prepared for filing with the French government was true in stating that Charles had been “acknowledged by the said William L’Engle Barnett as his son.” This was for the purpose of obtaining Charles’ release of allegiance to the French government preparatory to establishing his United States citizenship. On July 16, 1934, William and Marcelle executed a sworn affidavit for filing with the governments of the United States and France referring to Charles Barnett as “their son” and stating that Charles Barnett had been “acknowledged by the said William L’Engle Barnett as his son.” On February 9, 1935, William signed his name in the blank for “father” on Charles’ passport application and swore, before a Deputy United States Court Clerk, in an affidavit of birth to be submitted with Charles’ application for passport, that Charles “is my son.” 336 So.2d at 1215-16.

The evidence also revealed that Charles and his parents became estranged around 1940 due, in part, to the marriage of Charles to a woman of whom his parents did not approve. During this period of estrangement, which continued until William’s death, William began referring to Charles as his “adopted son” or “step-son” and purportedly stated that “[tjhere’s not a drop of my blood in that boy.”

On appeal, the district court reversed and remanded the cause, finding that the circuit judge had erroneously construed Section 731.29(1), supra:

This construction in our view nullifies the obvious intent of the statute which was to lay at rest the question of legitimacy when the reputed father acknowledges the child before a witness and marries the mother. We do not believe it was the legislative intent to leave this question dangling for future litigation many years later (usually at the death of the father) when the problem of proof, though it could be difficult enough at the time of acknowledgment and marriage, would be far more difficult in later years. In this connection, § 742.091, Fla.Stat. (1973), a part of the bastardy statute, should be considered in pari materia with § 731.-29(1), supra. § 742.091 states as follows:
“If the mother of any bastard child and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held legitimate, and upon the payment of all costs and attorney fees as determined by the court, the cause shall be dismissed and the bond provided for in § 742.021 shall be void . . . ”
It is significant that the foregoing statute provides that if the mother and the reputed father should at any time after its birth intermarry, the child shall be deemed and held legitimate. Obviously, the legislature meant the “reputed father” and the mother in relation to both statutes and did not intend by use of the word “parents” in one to open the question of parentage to later attack by collateral kin. 336 So.2d at 1216-17 (emphasis in original).

The district court reasoned that upon acknowledgment and marriage Charles became a legitimate child of the marriage between William and Marcelle and achieved the same status as a child born in wedlock. Due to the presumption that a child born in wedlock is the blood issue of the partners of such marriage, an individual who seeks to challenge the legitimacy of such a child has a strong, albeit rebuttable, presumption of legitimacy to overcome. The court concluded that although the husband and reputed father has the right to challenge the parentage of a child who has been legitimatized by compliance with the provisions of Section 731.29(1), supra, this right does not extend to the mother and, by the same token, is not accorded to the father’s collateral kindred after his death. Because of the absence of standing of the collateral kindred of William to challenge the parentage of Charles, the district court determined that the evidence relied upon by the circuit judge in ruling that Charles is not the blood issue of William was irrelevant. Charles’ legitimatization resulting from the acknowledgment and marriage, by definition, rendered him the blood issue of the marriage of William and Marcelle. Consequently, Charles was held to take under the trust instrument which provided for distribution to the blood issue of William.

We agree with the district court that the legislature intended that, upon acknowledgment by the reputed father and his marriage to the natural mother pursuant to the provisions of Section 731.29(1), supra, a child becomes the legitimate child of the marriage between those parties and achieves a status equal to that of a child born in wedlock. Accordingly, such a legitimatized child is necessarily the blood issue of the acknowledging and marrying father. In addition, because compliance by William Barnett with all the provisions of Section 731.29(1), rendered Charles “legitimate for all purposes,” factual proof of paternity by William was unnecessary in the declaratory judgment proceedings in issue.

This conclusion follows from a reading of Section 731.29(1), Florida Statutes (1973), the Florida Probate Law, in pari materia with Sections 742.011, 742.021, 742-031, and 742.091, Florida Statutes (1973), the determination of paternity statutes. That part of Section 731.29(1) which renders an illegitimate child the heir “of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father” fully contemplates that the one who so acknowledges the child is, in fact, its natural father. However, the enactment does not require submission of proof of paternity by the acknowledging individual and, further, provides that intermarriage of the child’s parents shall render the child “legitimate for all purposes.” We are persuaded that these provisions reflect the intent of the legislature to stabilize the status of a child born out of wedlock when an individual willingly assumes the responsibilities attendant to fatherhood by formally acknowledging his paternity of the child and, in addition, by marrying the mother of the child which he has recognized as his own. If Section 731.29(1) emphasized factual proof of paternity rather than a simple attestation by which one willingly recognizes his status as a parent, petitioners could more persuasively argue that the statute contemplates their challenge to the paternity of Charles.

To be contrasted are proceedings for determination of paternity pursuant to Sections 742.011, 742.021, and 742.031, Florida Statutes (1973), whereby a woman seeks to have one who is unwilling to accept the burdens of parenthood adjudicated the father of her child so that he may be legally compelled to accept these responsibilities. In such proceedings factual proof of biological paternity is of paramount importance, as is clearly reflected by these statutory provisions. See Sections 742.011, 742.021, and 742.031, Florida Statutes (1973); Bishop v. State ex rel. Garnette, 136 Fla. 268, 186 So. 413 (1939); de Moya v. de Pena, 148 So.2d 735 (Fla. 3d DCA 1963); Belin v. Sanchez, 101 So.2d 64 (Fla. 3d DCA 1958). Where an individual affirmatively seeks to assume the responsibilities of fatherhood, however, provisions for determination of paternity, like Section 731.29(1), do not require proof of paternity by that person. Section 742.091, Florida Statutes (1973), provides that marriage by the “reputed father” to the mother of the illegitimate child shall render the child legitimate for all purposes. Again, factual proof of paternity is not required of the person who willingly seeks to assume the responsibilities of parenthood. As was recognized by the district court in the case sub judice:

Obviously, the legislature meant the “reputed father” and the mother in relation to both statutes [Section 731.29(1) and Section 742.091] and did not intend by use of the word “parents” in one [Section 731.29(1)] to open the question of parentage to later attack by collateral kin. 336 So.2d at 1216-17 (emphasis in original).

By virtue of his formal acknowledgment of paternity with respect to Charles, William certainly achieved the status of a “reputed father” in the sense contemplated by Section 731.29(1). Consequently, the marriage of William to Marcelle made Charles legitimate for all purposes, thereby rendering factual proof of paternity by William irrelevant.

Petitioners rely upon In re McCollum’s Estate, supra, in support of their contention that the provision in Section 731.-29(1), that intermarriage of the “parents” of an illegitimate child shall render such child “legitimate for all purposes” requires intermarriage of the child’s natural parents. Consequently, conclude petitioners, proof of paternity by William is necessary. As was recognized by the district court in the instant case, however, only the first part of Section 731.29(1) was involved in McCollum. There was no marriage between the mother and reputed father of the child, but merely an acknowledgment of paternity by the reputed father. Accordingly, the second part of the enactment, which provides that upon intermarriage of the parents the child shall be deemed legitimate for all purposes, was inapplicable and not considered by the Court. The illegitimate child who sought to inherit from his alleged father’s estate in McCollum was therefore required to prove the fact of paternity as well as the acknowledgment. Here, however, there was both intermarriage and an acknowledgment, thus rendering Charles legitimate for all purposes and proof of paternity unnecessary. Petitioners also cite Taylor v. Taylor, supra, wherein the District Court of Appeal, Fourth District, concluded that Section 731.29(1) requires intermarriage by the natural parents of an illegitimate child. We adopt the response to this argument made by the district court below:

The factual situation in Taylor was totally different from that in the case sub judice, it being a divorce case in which the child was conceived before marriage and was born in wedlock. The husband contended (successfully) that he was not the father. In our view, it was unnecessary for the court to construe the aforesaid statute in the manner in which it did in order that the husband be allowed to contest the fatherhood of the child as we will subsequently point out. We disagree with the Fourth District Court’s construction of the statute. 336 So.2d at 1217 (emphasis in original).

As was acknowledged by the district court in the case sub judice, the father of a child born in wedlock has the right to challenge the parentage of that child despite the presumption that it is the legitimate issue of his marriage to its mother. Eldridge v. Eldridge, 153 Fla. 873, 16 So.2d 163 (1944). It clearly is not in the best interests of a legitimate child to permit its father to later challenge the fact of paternity. However, this right is accorded the father of a legitimate child in order that he may not be inequitably saddled with the emotional and financial responsibilities of parenthood when he is not, in fact, the parent of the child.

Since our decision in Gammon v. Cobb, 335 So.2d 261 (Fla.1976), the right to challenge the legitimacy of a child conceived to a married woman was extended to its mother as well. The basis of our decision was the achievement of equal protection of the law for such a child. Previously, “the anomalous situation exist[ed] where the reputed father of an illegitimate child born to his wife [could] attack the child’s parentage and be relieved of the obligation to support the child, but at the same time the wife [could] not maintain a suit to compel the putative or natural father to provide support for the child.” 335 So.2d at 265. Although the right to challenge a child’s legitimacy was extended to the mother in Gammon, the welfare of the child was the controlling policy — the extension of the right meant that the married mother could seek support for the child in a situation in which previously she was not allowed to do so.

Eldridge and Gammon both rest on strong policy reasons which countervail the policy of legitimatizing children. To permit the collateral kindred of William to challenge the parentage of Charles, however, is not supported by any such policy considerations and would seriously undermine the status of every child born out of wedlock who is subsequently legitimatized by acknowledgment and intermarriage pursuant to Section 731.29(1). Petitioners are attempting to prevent distribution of the trust property to respondent which property, according to the terms of the trust instrument, is to be distributed to the surviving blood issue of William Barnett. If successful, these efforts would benefit only petitioners, who are designated as beneficiaries of the trust in the event that William died without surviving blood issue.

Petitioners have forcefully argued that subsequent to his estrangement from Charles, William Barnett did not consider Charles to be his son. Consequently, William purportedly did not intend, by use of the term “blood issue,” that Charles receive the trust assets should he survive the death of the former. This Court is cognizant of the well-established principle that the intent of the settlor of a trust is controlling. West Coast Hospital Ass’n v. Florida National Bank, 100 So.2d 807 (Fla.1958); Watson v. St. Petersburg Bank & Trust Co., 146 So.2d 383 (Fla. 2d DCA 1962). However, unless the trust instrument is ambiguous the intent of the settlor must be ascertained from that which lies within the four corners of the instrument itself, and no extrinsic evidence of the settlor’s intent is admissible. See Travis v. Ashton, 156 Fla. 529, 23 So.2d 725 (1945); Pentland v. Pentland, 113 So.2d 872 (Fla. 2d DCA 1959). In the case at bar William Barnett directed that the trust assets should be distributed to his “blood issue.” When a technical term is used in a trust instrument it should be accorded its legal definition in determining the intent of the settlor, unless obviously used by him in a different sense. See In re Catlin, 97 Misc. 223, 160 N.Y.S. 1034 (1916); cf. Bradford v. Johnson, 237 N.C. 572, 75 S.E.2d 632 (1953). An intent to use a technical term in other than its legal sense would become manifest when, by a reading of the trust instrument with an application of the legal definition to such term, an ambiguity arises. No ambiguity is created by an application of the legal definition to the term “blood issue,” as used in the trust instrument in question. By virtue of William’s compliance with the provisions of Section 731.29(1), Florida Statutes (1973), Charles was rendered, by operation of law, the “blood issue” of William. The trust contains no expressed intent to exclude Charles from the definition of this term. Consequently, the district court properly concluded that Charles Barnett, as the blood issue of William Barnett, was entitled to distribution of the trust assets and that the extrinsic evidence relied upon by the circuit court below in ruling that Charles is not the blood issue of William was irrelevant to this determination.

Accordingly, the petition for writ of certiorari is granted. In view of this Court’s decision in Gammon v. Cobb, supra, that part of the decision of the District Court of Appeal, First District, concluding that the mother of a child which is legitimatized pursuant to the provisions of Section 731.-29(1), Florida Statutes (1973), may not challenge its paternity is hereby expunged. The decision of the district court is affirmed in all other respects.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD and ENGLAND, JJ., concur.

      . We have jurisdiction pursuant to Art. V, § 3(b)(3), Fla.Const.


text:
    Alphonso STUART, Petitioner, v. STATE of Florida, Respondent.
    No. 50930.
    Supreme Court of Florida.
    June 8, 1978.

      Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Linda Collins Hertz, Asst. Atty. Gen., Miami, for respondent.
   BOYD, Justice.

By petition for a writ of certiorari we have for review a decision of the District Court of Appeal, Third District (Stuart v. State, 339 So.2d 659), which conflicts with decisions in Gue v. State, 297 So.2d 135 (Fla.2d DCA 1974) and State ex rel. Flowers v. Goodman, 241 So.2d 457 (Fla.3d DCA 1970). We have jurisdiction, pursuant to Article V, Section 3(b)(3), Florida Constitution.

After being taken into custody on November 8, 1974, petitioner was informed against for breaking and entering with intent to commit grand larceny on December 12, 1974. The case was first set for trial on March 3, 1975. On that date defense counsel announced to the court readiness for trial, but the case was postponed by the court on its own motion until April 28, 1975. On April 28, defense counsel against announced that the petitioner was ready for trial. Pursuant to request by the state, the case was continued again, and set down for April 30, 1975, for trial or the entry of a plea. On April 30, with the defendant before the court, the defense once again announced readiness to proceed, and informed the court of its rejection of the state’s plea offer. The state then requested that the ease be put on the “stand-by calendar.”

On May 7, 1975, the 180th day following petitioner’s arrest and a week after the court and the state were notified in open court of defendant’s rejection of the state’s plea offer, the case was again called for trial, Counsel for the defense appeared and announced four times that it was ready to proceed. The state expressed a desire to start the trial on the following day, indicating the absence of its chief witness. Counsel for the state at this time indicated that both the state and defense wanted the continuance so that the witness and the defendant could both be present. Defense counsel immediately corrected the prosecutor saying, “I am ready to go today. They have called a witness and the witness isn’t here.” Defense counsel informed the court that the defendant was on telephone standby and would appear if the court decided to proceed with the trial that day.

In response to inquiry as to the existence of a speedy trial problem, counsel for the state advised the court that if trial commenced any day that week it would be timely. This advice was apparently based on the belief that since the weekly jury venire had been sworn on Monday of that week, within the period of the rule, trial before jurors from that venire would be timely commenced. The trial judge apparently felt that even more flexibility was allowed, as is indicated by his statement with regard to continuing the trial over to the next day: “I will put it over to tomorrow, but if a trial starts and runs three days, I don’t want anyone complaining they can’t get a speedy trial.” The prosecutor responded, “I understand.” Defense counsel made no objection, but announced again that the defendant was prepared to proceed “today.”

On May 8, 1975, the defendant filed his motion for discharge under the speedy trial rule, Florida Rule of Criminal Procedure 3.191, which was denied. After the jury returned a verdict of guilty, the trial court withheld adjudication of guilt and placed petitioner on probation. The district court of appeal affirmed, on the ground that petitioner “effectively waived his right to be tried within the time limitation of the Rule because of the plea negotiations and because of the defense counsel’s acquiescence to the Court setting the trial on the 181st day.” The court cited State v. Kelley, 322 So.2d 581 (Fla.1st DCA 1975) and State v. Earnest, 265 So.2d 397 (Fla.1st DCA 1972).

If there is any theory upon which the trial court might properly have denied petitioner’s motion for discharge, then the district court was correct in affirming, even though the trial court’s stated or indicated reasons be erroneous. Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla.1962). Accordingly, we will address every issue that appears to be relevant to a complete review of the district court’s decision. The issues are: (1) whether trial commenced within the period provided by the speedy trial rule; (2) whether petitioner failed to be “continuously available for trial” as required by Rule 3.191(a)(1) and (e), or waived strict compliance with the Rule by participating in plea negotiations; (3) whether there was waiver by agreement or acquiescence to a trial date beyond the rule period; (4) whether the nonpresence of the defendant on the 180th day indicated a lack of continuous availability; (5) whether the continuance granted on the 180th day should be deemed an extension of the rule period based on exceptional circumstances under Rule 3.191(d)(2); and, finally (6) whether under all the circumstances, the trial court was misled by defense counsel’s representations in court on the 180th day.

I.

The state contends that petitioner was brought to trial in a timely fashion. The record indicates that the trial court proceeded on the assumption that petitioner’s trial, which began on the 181st day following his being taken into custody on the charge, was timely commenced under the rule.

Counsel for the state and counsel for petitioner appeared before the trial court on Wednesday, May 7, 1975, the 180th day. The state advised the court that a commencement of the trial would be timely if had any day that week. The state persists in the contention here that a commencement is timely if trial begins before a panel of jurors who were sworn as prospective jurors within the period provided for by the rule.

Florida Rule of Criminal Procedure 3.191(a)(3) provides:

Commencement of trial. A person shall be deemed to have been brought to trial if the trial commences within the time herein provided. The trial is deemed to have commenced when the trial jury panel is sworn for voir dire examination, or, upon waiver of a jury trial, when the trial proceedings begin before the judge.

The state contends that the swearing of the weekly jury venire at the beginning of the week constituted the swearing of the trial jury panel for voir dire examination. The state cites State ex rel. Maines v. Baker, 254 So.2d 207 (Fla.1971), in support of this proposition, but its reliance thereon is misplaced. In that case a jury panel was sworn the morning of the last day on which the defendants could be brought to trial. At this time the clerk of the court propounded certain questions and excused some members of the panel. Neither the prosecuting attorney, the defendants, nor defense counsel were then present. Jurors from this panel were then called for the defendants’ trial and voir dire examination was begun the same day. The state would seem to make much of the fact that there was no further oath administered to the prospective jurors after their morning swearing as a jury venire. In holding that trial was timely commenced, this Court pointed out that the trial jury was sworn and voir dire examination begun on the last day. The fact that the prospective jurors were seated for voir dire for a particular trial within the period of the rule distinguishes Maines from the case at bar. See also State v. May, 332 So.2d 146 (Fla.3d DCA), cert. denied, 339 So.2d 1172 (Fla.1976), which held that the swearing and qualifying of a panel of jurors for the week does not amount to commencement where the case is not called for trial, and a prospective trial jury is not called and seated for voir dire in the particular case, citing Maines. Accord Hall v. State, 348 So.2d 932 (Fla.2d DCA 1977).

II.

Unlike the trial court, the district court implicitly recognized that the trial was not commenced prior to the expiration of the 180th day. This conclusion would have been required under its holding in May, above. The district court held, however, that there was a waiver of strict compliance with the rule, indicating that this finding was predicated in part on petitioner’s participation in plea negotiations which caused delay.

The state argues that the district court should be upheld on this point on the ground that the delay was in part the responsibility of petitioner because his refusal of a plea bargain offer took place only one week prior to the running of the speedy trial period, and cites State ex rel. Gutierrez v. Baker, 276 So.2d 470 (Fla.1973), for support. In that case an assistant public defender other than the one who was handling the defendant’s case waived strict compliance in order to allow more time for plea bargaining. It was held that a public defender may effectively waive a defendant’s right to compliance with the rule without notice to or consent of the defendant where it is felt that the interests of the defendant are best served by trying to gain more time for the negotiation of a plea. The ease says nothing about plea bargaining itself constituting a waiver.

In State v. J. H., 295 So.2d 698 (Fla.1st DCA 1974), the state appealed a dismissal of a petition to have a juvenile adjudged delinquent, the dismissal having been granted on the ground of violation of the speedy trial rule. The state there contended that a motion for withdrawal as counsel filed by the public defender constituted a waiver of speedy trial. The district court held that such a move was not a waiver where the motion was neither frivolous nor filed for the purpose of causing delay. Similarly, in the case at bar, there has been no showing that petitioner’s participation in plea negotiations was undertaken in bad faith or for the purpose of delay.

The state cites Rubiera, v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974), for the proposition that “there are situations in which the specific limits” of the rule become “inoperative.” The situation under consideration there was described by this Court as follows:

When he moved for discharge defendant was involved in trial preparation by availing himself of criminal discovery tools. Notice of taking depositions was served one day prior to filing of motion for discharge. They were scheduled to be taken some eight days later. Under these facts the record fails to disclose that defendant was ready to proceed with his formal defense or otherwise be “continuously available” within the meaning of Rule 3.191(a)(1) and (e).

In the case at bar, participation in plea negotiations, which ended by rejection of the state’s plea offer one week prior to the running of the time, did not constitute such a heavy involvement in trial preparation as to negate petitioner’s readiness or to indicate that he was delaying the bringing of the case to trial. It is readily distinguishable from filing notice of taking depositions one day and moving for discharge the next.

Even if petitioner had still be engaged in plea negotiations at the time of his motion for discharge, this would not necessarily render the rule period “inoperative” on the ground of waiver, nonavailability, or bad faith delay. In State ex rel. Wright v. Yawn, 320 So.2d 880 (Fla.1st DCA 1975), cert. denied 334 So.2d 609 (Fla.1976), 142 days had elapsed between defendant’s arrest and his indictment. Several grand juries had convened during this period; and the formal charge could have been made by information. Only 38 days remained in the speedy trial period, but the defendant proceeded to attempt to prepare for trial. When brought to trial beyond the rule period, he moved for discharge. Discharge was denied by the trial court on the authority of our decision in Rubiera, on the ground that defendant was still engaged in discovery procedures and thus was not “continuously ready and available for trial.” The district court held that a defendant cannot be forced to choose between availing himself of the right to criminal discovery on the one hand and preserving his right to a speedy trial on the other. By similar reasoning a defendant who has announced readiness for trial several times, and had his trial continued pursuant to requests by the state, cannot be said to have been unavailable or to have waived strict compliance due to his participation in plea negotiations.

III.

The district court also reasoned that petitioner waived his right to strict compliance by acquiescing in the setting of the case for trial on a date beyond the speedy trial time period. In support of its argument that the court was correct in doing so, the state cites the case of State ex rel. Leon v. Baker, 229 So.2d 595 (Fla.3d DCA 1969), which dealt with the now-repealed speedy trial statute, Section 915.01, Florida Statutes (1969). The Court there said, at 596-97:

The right to a speedy trial, within the three terms based on written demands as provided for in the statute, is one which a defendant can waive. Acquiescence without objection to a postponement or continuance beyond the term, by the court or on request of the state, may constitute such waiver. (Emphasis supplied.)

This Court affirmed that the statutory right was one that could be waived, but reversed the district court on the ground that no waiver was shown under the facts of the case. 238 So.2d 281 (Fla.1970). Moreover, the same district court in State ex rel. Flowers v. Goodman, 241 So.2d 457 (Fla.3d DCA 1970), held that a simple failure to object in response to a state request for and the court’s granting of a continuance, “is not a waiver by acquiescence under the provisions of § 915.101(2), Fla.Stat., F.S.A.”

The state also refers to State v. Earnest, 265 So.2d 397 (Fla.1st DCA 1972), in support of its contention that there was waiver. But in that case the sole question was stated to be, at 398:

whether an attorney representing a defendant charged with a crime may effectively waive the defendant’s right to be tried within the time limitations set forth in the speedy trial rule without first having explained to defendant his rights under the provisions of the rule and securing his consent to enter into such an agreement.

The question was answered in the affirmative, but the case gives no support to the state’s argument that petitioner’s counsel waived his right. It would indicate only that such could have been done even though petitioner was absent on the 180th day.

Another case cited by the state in its argument that there was waiver by acquiescence is State v. Kelley, 322 So.2d 581 (Fla.1st DCA 1975). In that case, however, defense counsel made no response when the prosecutor announced before the court that the state and defense had stipulated to a continuance because of the appointment of new counsel for a co-defendant. The Court held that silence under those circumstances was a waiver, just as would have been a request for a continuance made directly by defense counsel. The case at bar is readily distinguishable.

The state’s assertion of acquiescence is further undermined by reference to the decision of the district court of appeal in Gue, above. At defendant’s arraignment in that case, a trial date was set beyond the period. The Court stated, at 135:

While it is true, as the trial judge pointed out, that at arraignment the defendant might have called to the state’s attention that the case was set for trial beyond the 180 days, we find nothing in the rule which places the burden of compliance elsewhere than on the state. There being no waiver or other circumstances justifying extension, denial of the motion to discharge was error.

A case that is distinguishable from Gue is cited by the state in its brief as supporting its waiver argument. State v. Nelson, 320 So.2d 835 (Fla.2d DCA 1975), stands for the proposition that the acceptance by counsel in open court of a trial date beyond the 180-day period constitutes a waiver. The court there noted in its opinion that there was an actual verbal acceptance of the trial date and not a mere failure to object or to point out that the date would be beyond the period.

In Flournory v. State, 322 So.2d 652 (Fla.2d DCA 1975), there was a hearing held on the next to the last day of the rule time period. At this hearing, the trial was continued and set for a date beyond the period. The district court held that since the record was silent as to any agreement or acceptance of this action, a valid waiver could not be found to have taken place. Nor could a previous agreement to a continuance within the period be taken as such. See State v. Ansley, 349 So.2d 837 (Fla.1st DCA 1977); Smith v. State, 345 So.2d 1117 (Fla.2d DCA 1977).

If silence is not enough to show waiver by acquiescence, but some kind of positive acceptance is required, clearly no waiver is shown where there are repeated announcements of readiness for trial and unhesitating dispute of the state’s suggestion of a joint request for a continuance.

IV.

In order to be entitled to discharge under the speedy trial rule, a defendant must have been continuously available for trial during the period. Florida Rule of Criminal Procedure 3.191(a)(1), (e). The concept of continuous availability as an element of a defendant’s right to be tried within the time period of the rule was discussed above under point II in connection with petitioner’s availing himself of the opportunity to engage in plea negotiations. The state makes a further argument of lack of continuous availability based on the defendant’s absence on the 180th day, citing State v. Exposito, 327 So.2d 836 (Fla.3d DCA 1976). There, after declaration of a mistrial, a new trial was scheduled. When the appointed time arrived, the defendant and his counsel did not appear. Counsel for a codefendant informed the court that counsel for defendant was “down the hall.” The trial judge set a new trial date. Defendant’s subsequent motion for a discharge pursuant to Rule 3.191(g) on the ground that he had not been brought to trial within 90 days after declaration of a mistrial was granted. The district court reversed, holding that the defendant had not been continuously available.

The case at bar differs from Exposito in that petitioner’s counsel appeared at the Wednesday, May 7, 1975, hearing. The defendant was not there, apparently because he preferred to be contacted by telephone if the trial was to begin rather than to make yet another fruitless court appearance.

The trial court did not ground its denial of petitioner’s motion for discharge on lack of continuous availability. Florida Rule of Criminal Procedure 3.191(e) provides that “no presumption of non-availability attaches, but if the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish continuous availability during the term.” In order for the trial court to have based its ruling on this ground, the state would have had to carry this initial burden. State ex rel. Kennedy v. McCauley, 265 So.2d 547 (Fla.4th DCA 1972). This was not done. Furthermore, there is no indication that the defense could not have proved that petitioner was in fact on telephone stand-by on the 180th day. The concept of continuous availability contemplates readiness to proceed, Rubiera, above, which petitioner announced repeatedly through the course of the proceedings.

V.

While the considerations set out in part III above refute the state’s contention that there was agreement by acquiescence to postponement of the trial, it might well be argued that the continuance of one day which was granted to the state on the 180th day amounted to an extension of the rule time period based on good cause — the absence of the state’s chief witness.

Subsection (d)(2) of the rule provides for the period to be extended by order and sets out the methods by which this can be done. It can be either on the court’s motion or on motion of either party, in exceptional circumstances. The kinds of things that may constitute such exceptional circumstances are set out in Rule 3.191(f). Specifically excluded are: “general congestion of the court’s docket, lack of diligent preparation or failure to obtain available witnesses, or other avoidable or foreseeable delays.” Specifically included is “unexpected illness or unexpected incapacity or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial.”

Because of the trial court’s disposition of the motion for discharge, there was no determination whether the absence of the witness should be deemed to fall into the former or the latter category above. Even if an exceptional circumstance as defined by the Rule were shown, however, an extension might not be justified. The delay in this proceeding and the numerous continuances were not the fault of petitioner. It has been held that where exceptional circumstances or complexities involved in the preparation of a case for trial were occasioned by delay on the part of the state, they will not be deemed to justify a delay of the trial and an extension of the rule period. State ex rel. Boren v. Sepe, 256 So.2d 259 (Fla.3d DCA), cert. discharged, 271 So.2d 116 (Fla.1972).

Because such an extension for exceptional circumstances must be by order of the court, Florida Rule of Criminal Procedure 3.191(d)(2), and will not be automatic or presumed from the circumstances, State v. Cannon, 332 So.2d 127 (Fla.4th DCA 1976); Mullin v. State, 307 So.2d 829 (Fla.3d DCA 1974), cert. denied 317 So.2d 761 (Fla.1975); Pouncy v. State, 296 So.2d 625 (Fla.3d DCA 1974); Esperti v. State, 276 So.2d 58 (Fla.2d DCA), cert. denied 285 So.2d 614 (Fla.1973), the question of whether the circumstances were such as would justify an extension of the rule time period is a moot point. As there was no order of the court, there cannot have been an extension of the speedy trial rule time period.

VI.

The final issue to be considered is closely related to the question of waiver by acquiescence addressed above. Like the waiver issue, it arises from the events that transpired at the Wednesday, May 7, 1975, hearing. As has been recited previously, at the May 7, 1975, hearing defense counsel corrected the state’s suggestion that the request for another day’s continuance was jointly made, informed the court that the defendant was available and was awaiting a call to appear, and announced four times readiness to proceed. The judge, after being advised that the state’s witness would be unavailable until the following day, and being under the erroneous impression that a trial commenced any time that week would be timely, stated that he did not want anyone complaining that they could not get a speedy trial. The state argues that the failure to assert at that point in time that a speedy trial issue existed and that if trial were continued to the next day defense would move for discharge misled the judge. Had the defense at that time made its position clear by explicitly challenging the court’s apparent posture (that trial could be timely commenced the next day), the court, it is argued, would then have had an opportunity to decide the matter.

We deal here with a question that goes to the very nature and purpose of the speedy trial rule and to the basic principles of advocacy in an adversary system of criminal justice. Petitioner had a constitutional right to be brought to trial within a reasonable time. The rule of 180 days provides a practical way to effectuate the constitutional right. Defense counsel had tried to protect petitioner’s constitutional right by announcing readiness for trial numerous times following the filing of the information. By the time of the hearing on the 180th day, petitioner’s constitutional right had been stretched almost to the limit. By this point defense counsel was properly more concerned with protecting petitioner’s entitlement to the remedy that follows from the violation of the rule. The proper time to argue about the operation of the rule and the entitlement to a discharge is at a hearing on a motion therefor, and a motion for discharge can only be effectively made when the movant is entitled to one — after the period has run. Florida Rule of Criminal Procedure 3.191(d)(1). Defense counsel was under no duty to correct the court’s impression and to argue to the court that trial had to begin that day simply because he might have succeeded. This would have jeopardized his client’s chances of getting the remedy for a violation of the speedy trial rule. As serious as is the duty of an attorney to keep the court apprised of its position and to advise on the ramifications of court action, the duty to promote and defend the rights and lawful interests of a client accused of crime is even weightier. In the situation we consider, no concept of a duty of open dealing before the court can justify requiring the defense to do the state’s job.

Our disposition of the case makes consideration of petitioner’s other point for review unnecessary. To the extent it is inconsistent with this opinion, the decision of the district court is quashed. The case is remanded with directions that the petitioner be discharged.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND and SUNDBERG, JJ., concur.

HATCHETT, J., concurs in result only.

       A lawyer should represent a client zealously within the bounds of the law. Canon 7, Fla.Bar Code Prof.Resp. Ethical Consideration 7-3 states, “While serving as an advocate, a lawyer should resolve in favor of his client doubts as to the bounds of the law.” This duty of zealous representation is a duty owed by a lawyer both to his client and to the adversary system of justice. Id., E.C. 7-19.


author: PER CURIAM. ADKINS, Justice,

text:
    STATE of Florida, Petitioner, v. Donald OSTERGARD et al., Respondents. STATE of Florida, Petitioner, v. Carlos GUTIERREZ et al., Respondents.
    Nos. 51521, 51534.
    Supreme Court of Florida.
    June 8, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Linda Collins Hertz and Arthur Joel Berger, Asst. Attys. Gen., Miami, for petitioner.
    Walter E. Gwinn, Miami, J. Victor Afri-cano, Live Oak, Yale T. Freeman of Hirsch-horn & Freeman, Miami, Geoffrey C. Fleck of Kogen & Kogan, Miami, and W. Stephen Arnovitz of the Law Offices of Burns & Arnovitz, Miami Beach, for respondents.
   PER CURIAM.

The writs of certiorari were granted to review the decisions of the District Court of Appeal, Third District, in State v. Gutierrez, 344 So.2d 943 (Fla. 3d DCA 1977), and State v. Ostergard, 343 So.2d 874 (Fla. 3d DCA 1977), because of apparent conflict with State v. Barnett, 339 So.2d 1159 (Fla. 2d DCA 1976). We have recently disapproved the decision of the District Court of Appeal in Barnett and concurred with the decision and rationale of the District Court in Ostergard. McNamara v. State, 357 So.2d 410 (Fla.1978). Having dispelled the conflict, we discharge the writs heretofore issued.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND and ALDERMAN, JJ., concur.

ADKINS, J., concurs specially with an opinion, with which ENGLAND, J., concurs.

ADKINS, Justice,

concurring specially:

In my opinion the decisions of the district courts of appeal were erroneous, however, the majority of the court concurred in McNamara v. State, 357 So.2d 410 (Fla.1978) filed March 31, 1978, and took a contrary view.

The presiding judge of the statewide grand jury controls the exercise of its jurisdiction, governed by the statute, as well as the petition and empaneling order. The statewide grand jury is an arm of the presiding court.

The trial court is a separate and distinct court, the jurisdiction of which is determined by the nature of the crime charged (subject matter jurisdiction) and proper venue (territorial jurisdiction). The trial court does not have jurisdiction to make inquiry into the subject matter jurisdiction of the statewide grand jury.

We, in effect, have made “multi-county activity” a necessary element to be alleged and proved beyond a reasonable doubt in every criminal offense charged by a statewide grand jury indictment.

This step, giving a defendant additional technical objections (unrelated to the basic rights safeguarded by the Constitution) is the case law of Florida, so the disposition of these cases is in accordance with the majority view. In this respect I concur.

ENGLAND, J., concurs.


author: HATCHETT, Justice.

text:
    AM FI INVESTMENT CORPORATION et al., Appellants, v. Jack KINNEY, Zearl Lancaster, Marvin G. Beck, Charles Deese and Kenneth Kelson, as and constituting the Board of County Commissioners of Escambia County, Florida and Escambia County, Florida: Appellees.
    No. 52407.
    Supreme Court of Florida.
    June 8, 1978.
    J. McHenry Jones of Jones & Welch, Pensacola, for appellants.
    Robert L. Shevin, Atty. Gen. and Larry Levy, Asst. Atty. Gen., Tallahassee, and Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellees.
   HATCHETT, Justice.

Chapters 76-368 and 76-371, Laws of Florida, Special Acts, provide for repayment by the county to leaseholders on Santa Rosa Island an amount equal to all ad valorem taxes, for county and school purposes paid by them on their possessory interests from 1972 through 1974. The trial court found that these acts violated the state constitution, and granted final summary judgment for appellees. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution (1968). We affirm the trial court’s order holding these special acts to be unconstitutional on the grounds that they provide for an indirect exemption from ad valorem taxes not authorized by our state constitution and provide for refund to leaseholders of ad valorem taxes lawfully paid during 1972, 1973, and 1974.

Recently, in Archer v. Marshall, 355 So.2d 781 (Fla.1978), we determined that a similar special act was unconstitutional because it unlawfully provided for an indirect exemption from ad valorem taxes for certain leaseholders on Santa Rosa Island. There, we also concurred in the trial court’s conclusion that the legislative determination which found the county to have been unjustly enriched in an amount equal to the ad valorem taxes paid by island leaseholders had no reasonable foundation in fact. The act held unconstitutional in Archer involved á reduction in future rental payments for leaseholders in amounts equal to ad valorem taxes paid by them during the previous year. The special acts involved in this case involve retroactive payment of tax monies paid or owing by Santa Rosa Island leaseholders for 1972 through 1974. The trial court recognized that this court had previously held in Straughn v. Camp, 293 So.2d 689 (Fla.1974) that the Santa Rosa Island leasehold interests were not performing or serving a public purpose. The trial court further determined that the overall effect of these two special acts is to relieve the Island leaseholders from ad valorem tax burdens for these previous years. We agree with the trial court that the Florida Constitution requires that all property used for private purposes bear its just share of the tax burden for the support of local government and education, with certain exceptions specifically enumerated in the constitution.

Accordingly, for these reasons and the reasons set forth at length in Archer, we affirm the trial court’s order and hold Chapters 76-368 and 76-371, Laws of Florida, Special Acts, violate Article VII, Section 3 and Article III, Section 11(a)(8), Florida Constitution (1968), and are invalid.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG and ALDERMAN, JJ., concur.

      . In addition, the county is directed by these acts to reimburse all penalties and interest incurred for late payment of these taxes.

      . Article VII, Section 3. Taxes; exemptions.—
      (a) All property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation. A municipality, owning property outside the municipality, may be required by general law to make payment to the taxing unit in which the property is located. Such portions of property as are used predominantly for educational, literary, scientific, religious or charitable purposes may be exempted by general law from taxation.
      (b) There shall be exempt from taxation, cumulatively, to every head of a family residing in this state, household goods and personal effects to the value fixed by general law, not less than one thousand dollars, and to every widow or person who is blind or totally and permanently disabled, property to the value fixed by general law not less than five hundred dollars.

      . Article III, Section 11(a)(8) provides:
      (a) There shall be no special law or general law of local application pertaining to:
      (8) refund of money legally paid or remission of fines, penalties or forfeitures.


text:
    Roy Eugene CRADDUCK, Petitioner, v. STATE of Florida, Respondent.
    No. 53565.
    Supreme Court of Florida.
    June 9, 1978.
    Richard L. Jorandby, Public Defender, and Marc E. Kirk, Asst. Public Defender, West Palm Beach, for petitioner.

      Robert L. Shevin, Atty. Gen., Tallahassee and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for respondent.
   HATCHETT, Justice.

The district court, 356 So.2d 323, has certified to us the question:

Whether the speedy trial time provisions of Fla.R.Crim.P. 3.191(b)(1) apply to a defendant who, after being arrested or charged, is thereafter imprisoned on an unrelated charge?

We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution (1968) and answer this question in the negative. See Lewis v. State, 357 So.2d 725 (Fla.1978).

Therefore, we remand this case to the district court for further proceedings consistent with our decision in Lewis.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD and SUNDBERG, JJ., concur.