author: GRIMES, Judge.

text:
    John L. BRIGGS, as Attorney for Sheldon Cooper and Cooper-Fletcher & Associates, Inc., and John L. Briggs, as Interim Attorney for John Joseph, Appellant, v. E. J. SALCINES, as State Attorney in and for Hillsborough County, Florida, Appellee.
    No. 80-898.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1980.
    Rehearing Denied Nov. 20, 1980.

      John L. Briggs of Briggs & LaSpada, P.A., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

In this case, attorney John L. Briggs seeks review of the denial of his motion to quash a subpoena requiring him to produce tape recordings in his possession which had been made by a client.

This matter arose out of a civil lawsuit in which Sheldon Cooper and Cooper-Fletcher & Associates, Inc. were plaintiffs and Map F. Fletcher and others were defendants. Mr. Briggs represented the plaintiffs, while Gregory E. Mierzwinski represented Mr. Fletcher.

During the course of the lawsuit, Mr. Mierzwinski took the deposition of John Joseph. Mr. Joseph, who was associated with Sheldon Cooper, testified that he had tape recorded fifteen telephone conversations between himself, the defendant Fletcher, and some of Mr. Fletcher’s associates. Mr. Joseph admitted that he did not tell Mr. Fletcher or any of the others that he was recording these conversations. He stated that the tape recordings were locked in the office of Sheldon Cooper.

On March 1, 1980, Mr. Briggs, acting on behalf of the plaintiffs in the lawsuit, filed a motion asking that the court impound the tapes because they might have been made in violation of the law. The motion also requested that the court order the tapes destroyed. On April 1,1980, Mr. Mierzwin-ski reported the matter to the office of the Hillsborough County State Attorney, and on May 14, 1980, the judge presiding over the civil suit held a hearing on Mr. Briggs’ motion. At this hearing, Mr. Briggs stated to the court that he was representing Mr. Joseph and that he had possession of the tapes. The court ordered Mr. Briggs to turn over the tapes to the state attorney.

Mr. Briggs did not give the tapes to the state attorney as ordered but asked for a rehearing. The court granted his request, and at the hearing that followed, attorney John E. Lund appeared representing Mr. Joseph and asked to intervene. The court ruled that the tapes were inadmissible in the civil proceedings and that, contrary to its earlier ruling, it would not order their production. Thereafter, the state attorney served Mr. Briggs and Mr. Lund with subpoenas duces tecum requiring the production of the tapes.

Mr. Briggs and Mr. Lund filed motions to quash the subpoenas, and a judge of the criminal division of the circuit court held a hearing on these motions. At this hearing, Mr. Lund represented to the court that Mr. Joseph had given the tapes to Mr. Briggs in the process of receiving legal advice from Mr. Briggs concerning them. He and Mr. Briggs then argued that since the recording of the tapes could be a violation of Florida law, Mr. Joseph’s Fifth Amendment right against self-incrimination protected him and Mr. Briggs, while acting as his attorney, from the forced production of the tapes. The court rejected this argument, denied the motions to quash and ordered production of the tape recordings. Subsequently, Mr. Briggs filed an appeal, and this court granted a motion to stay the trial court’s order.

As a preliminary matter, we must examine the question of whether we have jurisdiction to consider this appeal. Ordinarily, an order denying a motion to quash a subpoena duces tecum is a nonfinal order. There is nothing in Florida Rule of Appellate Procedure 9.130, dealing with review of nonfinal orders, or in Florida Rule of Appellate Procedure 9.140, dealing with appeals in criminal cases, which would indicate that we have jurisdiction to review this type of order. Thus, we cannot treat the matter as an appeal. This does not end our inquiry, however, because we do have the power to treat an improperly filed appeal as a petition for writ of certiorari. See Goff v. General Motors Corp., 292 So.2d 594 (Fla.2d DCA 1974); Fla.R.App.P. 9.040. We think this case to be an appropriate matter for consideration by certiorari. See Imparato v. Spicola, 238 So.2d 503 (Fla.2d DCA 1970).

Of course, in order for us to grant the discretionary writ of certiorari, the order from which review is sought must be a departure from the essential requirements of the law and be such as to cause irreparable harm which cannot be remedied on appeal. Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla.2d DCA 1973). Taking the latter requirement first, we believe that in this case Mr. Briggs does not have an adequate remedy by appeal; if for no other reason, he is not a party to any proceedings in which a final judgment will be entered. The only other way in which he may test the court’s order is to risk a contempt citation and then appeal if cited for contempt. We think that this is too great a price for him to have to pay in order to protect his client’s interests.

We also think that the court’s refusal to quash the subpoena departs from the essential requirements of the law. The leading case in this area and the one which controls the outcome here is Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). There, the Supreme Court faced a situation where an attorney had in his possession business records prepared for his client by the client’s accountant and given to him by the client in the course of seeking legal advice. The government sought to compel the attorney’s production of the records by subpoena, but the attorney resisted, asserting the client’s Fifth Amendment privilege against self-incrimination and also his attorney-client privilege. The Court held that the attorney-client privilege would protect an attorney from the forced production of documents given to him by a client in the course of seeking legal advice if the documents were privileged in the hands of the client. It then held that while the Fifth Amendment privilege against self-incrimination affords no protection to the contents of previously prepared documents, it does protect a person from producing documents under subpoena where the compelled production would amount to a forced testimonial communication which would be incriminating.

In Fisher, the Court found that the forced production by a person of records prepared by his accountant did not rise to the level of testimonial communication. However, at least one later case, In re Grand Jury Proceedings, 626 F.2d 1051 (1st Cir. 1980), has treated a situation where a person’s response to a subpoena would have amounted to testimonial communication. There, a federal grand jury was seeking the appointment books of a doctor. The court said:

The line of cases culminating in Fisher have stripped the content of business records of any Fifth Amendment protection; such protection is afforded only to the testimonial content of the act of turning over the records under compulsion. Compliance with the subpoena may admit certain facts, such as the existence of the requested documents, which in most cases will be so trivial that the constitution is not implicated. In many cases, however, the authentication of the document, which may be proven by an official’s testimony that he received them from the individual who prepared and possessed them, will provide a necessary link to incriminating evidence contained in the documents.
We have little hesitancy in agreeing with the district court that there is a sufficient probability that Dr. Rodriguez’s compliance with the subpoena would produce incriminating authentication evidence. If the appointment logs disclose incriminating details about meetings with union officials, as the government suspects, the logs would need to be authenticated to be legally relevant. Because the records were prepared under the doctor’s direction and were in his possession, his submission of them to the government would constitute sufficient authentication to allow introduction of the records’ content against him.

626 F.2d at 1055-56 (footnote and citations omitted).

Upon review, we have concluded that were the tapes in Mr. Joseph’s possession, the forced production of them would amount to compelled incriminating testimonial communication in that the production would serve as authentication that Mr. Joseph had made the tape recordings. Consequently, Mr. Joseph could assert the protection of the Fifth Amendment, and therefore, Mr. Briggs, by invoking the attorney-client privilege, cannot be compelled to produce the tapes.

We hereby issue a writ of certiorari and remand the case to the circuit court with instructions that it quash the state’s subpoena.

SC1SEB, C. J., and OTT, J., concur.

      . State v. Walls, 356 So.2d 294 (Fla.1978), holds that Section 934.03, Florida Statutes (1979), prohibits the secret recording of a conversation by a party to that conversation. But see State v. Tsavaris, 382 So.2d 56 (Fla.2d DCA 1980), which urges the supreme court to revisit this issue.

      . Because the extent of the attorney-client privilege is a matter of state law, we are not bound to follow the Supreme Court’s holding in this regard. However, we are confident that Florida’s attorney-client privilege as embodied in Section 90.502, Florida Statutes (1979), is broad enough to include the proposition which appears to be universally accepted that documents which are privileged in the hands of the client and which are given by the client to the attomey in the course of seeking legal advice remain privileged in the hands of the attorney. See 81 Am.Jur.2d Witnesses § 204 (1976).

      . Apparently there are no Fifth Amendment implications in the seizure of the same documents pursuant to a valid search warrant. Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976).

      . We think that in this instance the tape recordings were in the nature of business records because they were made of conversations centering around the business disputes which led to the civil litigation in which Mr. Joseph became involved. Thus we need not consider the questions left open in Fisher and In re Grand Jury Proceedings as to whether personal records and memoranda should receive more protection under the Fifth Amendment.


source: Caselaw Access Project

author: PER CURIAM. PER CURIAM.

license: Public Domain

text:
    Linda T. SMITH, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., etc., Appellee.
    No. 79-125.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.
    On Motion for Clarification Jan. 14, 1981.
    W. M. Chanfrau of Chanfrau & Chanfrau, Daytona Beach, for appellant.
    Edwin P. B. Sanders of Landis, Graham, French, Husfeld, Sherman & Ford, P. A., DeLand, for appellee.
   PER CURIAM.

The summary final judgment entered herein is reversed and the cause is remanded for further proceedings, on the authority of State Farm Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA, 1980).

REVERSED and REMANDED.

DAUKSCH, C. J., ORFINGER, J., and EVANS, VERNON W., Associate Judge, concur.

ON MOTION FOR CLARIFICATION

PER CURIAM.

Appellees request that we clarify the brief opinion filed herein by expressly pointing out the conflict between this decision and cases decided by other appellate courts. Because there is such conflict and we do not intend to preclude further review of this decision, we clarify our earlier opinion by noting that the decision sub judice, by relying on State Farm Mutual Automobile Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980), expressly conflicts with: Carter v. Government Employees Ins. Co., 377 So.2d 242 (Fla. 1st DCA 1979); Florida Farm Bureau Cas. Co. v. Andrews, 369 So.2d 346 (Fla. 4th DCA 1978); and Aetna Casualty and Surety Company v. Ilmonen, 360 So.2d 1271 (Fla. 3d DCA 1978).

The motion for clarification is granted, and as clarified herein, we adhere to our original opinion.

DAUKSCH, C. J., ORFINGER, J., and EVANS, VERNON W., Associate Judge, concur.


text:
    May WHITE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 80-54.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.
    On Motion for Clarification Jan. 14, 1981.
    Robert W. Elton of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for appellant.
    Edwin P. B. Sanders of Landis, Graham, French, Husfeld, Sherman & Ford, P. A., DeLand, for appellee.
   PER CURIAM.

The summary final judgment entered herein is reversed and the cause is remanded for further proceedings, on the authority of State Farm Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980).

REVERSED and REMANDED.

DAUKSCH, C. J., ORFINGER, J., and EVANS, VERNON W., Associate Judge, concur.

ON MOTION FOR CLARIFICATION

PER CURIAM.

Appellees request that we clarify the brief opinion filed herein by expressly pointing out the conflict between this decision and cases decided by other appellate courts. Because there is such conflict and we do not intend to preclude further review of this decision, we clarify our earlier opinion by noting that the decision sub judice, by relying on State Farm Mutual Automobile Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980), expressly conflicts with: Carter v. Government Employees Ins. Co., 377 So.2d 242 (Fla. 1st DCA 1979); Florida Farm Bureau Cas. Co. v. Andrews, 369 So.2d 346 (Fla 4th DCA 1978); and Aetna Casualty and Surety Company v. Ilmonen, 360 So.2d 1271 (Fla. 3d DCA 1978).

The motion for clarification is granted, and as clarified herein, we adhere to our original opinion.

DAUKSCH, C.J., ORFINGER, J., and EVANS, VERNON W., Associate Judge, concur.


author: SCHEB, Chief Judge.

text:
    HOME AMERICA, INC., et al., Appellants, v. George M. ATKINSON, Appellee.
    No. 80-546.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1980.

      Malcolm V. McKay of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Tampa, for appellants.
    William C. McLean, Jr., Tampa, for ap-pellee.
   SCHEB, Chief Judge.

Appellants contend that the trial court erred in ordering Home America, Inc., to specifically perform its real estate construction contract with George Atkinson and in requiring it to take a purchase-money mortgage from him. We affirm the order of specific performance but reverse the requirement that Home America finance Atkinson’s purchase.

Home America agreed with Atkinson to duplicate one of its model homes on a lot and to convey the house and lot to Atkinson in accordance with a written contract. The contract contained the legal description of the property and the price, terms and other essential details of the transaction. It included a building plan and required Atkinson to seek financing. Finally, it provided that Atkinson would sell his existing home prior to closing the transaction and immediately make the balance of the down payment. As construction proceeded a controversy developed regarding construction changes and alleged deficiencies. Atkinson sold his existing home but failed to make the balance of the down payment. Each party claimed the other had defaulted. Consequently, the transaction did not close, and Atkinson’s loan commitment expired.

Atkinson filed suit seeking specific performance of the contract. He also sought damages for losses allegedly incurred because of Home America’s untimely performance and for the loss he claimed he would sustain because the delay prevented him from availing himself of a favorable twenty-nine year, 9.75% mortgage-loan commitment. The trial court found that Home America had breached its contract and ordered it to correct construction deficiencies and convey the property to Atkinson upon his payment of the balance of the down payment. The court required Home America to take a purchase-money mortgage from Atkinson to compensate him for the lapse of his loan commitment and ordered the appellants to pay him for other damages he had incurred.

Home America seeks reversal of the court’s judgment on two grounds. First, it argues that the trial court erred in granting specific performance since Atkinson had defaulted by not paying the balance of the down payment. Second, it contends that the court erred in ordering it to finance Atkinson’s purchase since Atkinson had an adequate remedy at law.

We find no merit to the first point. The trial court properly ordered specific performance when it found that Home America had breached the contract. Specific performance is an equitable remedy which the trial court may grant in its discretion, and the court’s judgment will not be reversed on appeal unless clearly erroneous. Henderson Development Co. v. Gerrits, 340 So.2d 1205 (Fla. 3d DCA 1976). While it is not ordinarily granted in construction contract cases, courts have ordered specific performance of construction contracts where the completion of a building and the transfer of real property were involved. Floyd v. Watson, 254 S.E.2d 687 (W.Va.1979); Edison Realty Co. v. Bauernschub, 191 Md. 451, 62 A.2d 354 (1948); 81 C.J.S. Specific Performance § 88 (1977); see Connell v. Mittendorf, 147 So.2d 169 (Fla. 2d DCA 1962). Here, Home America had contracted to construct a house and convey it and the lot to Atkinson. Home America had substantially completed the building, and the trial court properly ordered it to correct the construction deficiencies as well as transfer the lot and building.

We do find merit to Home America’s second point, however. The trial court erred in invoking its equitable powers by ordering Home America to take a purchase-money mortgage from Atkinson on the terms of Atkinson’s original loan commitment. Home America’s breach of contract prohibited Atkinson from taking advantage of a loan commitment for a twenty-nine year, 9.75% mortgage loan. Atkinson, however, can still obtain a mortgage loan albeit at a higher interest rate. Consequently, Atkinson’s damages are readily calculable. They are the difference in total interest payments under a mortgage loan at the terms of the expired commitment and a mortgage loan under the current interest rate. Thus, Atkinson has an adequate remedy at law, that is, damages, and the trial court erred in fashioning an equitable remedy. J.S. Betts Co. v. South Georgia Ry. Co., 69 Fla. 46, 67 So. 861 (1915).

Accordingly, we vacate that part of the final judgment which requires Home America to take a purchase-money mortgage from Atkinson; otherwise, we affirm. We remand and direct the trial court to enter an amended final judgment awarding Atkinson damages in accordance with this opinion. In so doing the trial court must retain jurisdiction until Atkinson can arrange financing and close his transaction with Home America.

GRIMES and CAMPBELL, JJ., concur.


author: OTT, Acting Chief Judge.

text:
    Gene ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 80-82.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1980.
    Rehearing Denied Nov. 24, 1980.

      Charles L. Carlton of Carlton & Carlton, P. A., Lakeland, Tobias Simon, Miami; and Richard C. McParlain, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Acting Chief Judge.

By indictment filed May 3, 1978, appellant was charged with conspiring, between July 15 and September 15, 1975, to commit first degree murder. An information was filed and appellant’s motion to dismiss it, on the ground that the statute of limitations had run, was denied. At the ensuing trial he was found guilty as charged. We reverse the conviction because the statute of limitations had in fact run, and the motion to dismiss the information should have been granted.

Prior to the adoption of the “Florida Criminal Code”, Sections 775.011 et seq., Florida Statutes (Ch. 74-383, Laws of Florida), the periods of limitation for prosecuting criminal actions were set forth in Section 932.465, Florida Statutes. The statute of limitations for the crime of conspiracy to commit murder was two years.

Chapter 74-383 was approved by the governor and filed with the Secretary of State on July 3, 1974. Section 67 thereof specified an effective date of July 1, 1975. Section 10 directed the renumbering of Section 932.465 as Section 775.15 and amended it extensively. The statute of limitations for first degree felonies was increased from two to four years.

On May 23,1975, Chapter 75-24, Laws of Florida, effective July 1, 1975, was approved and filed, amending Section 67 of Chapter 74.383 to read “October 1, 1975” instead of “July 1,1975.” Thus, the statute of limitations governing the instant crime was not increased until some two weeks after the conspiracy charged in this proceeding had terminated.

Generally speaking, the criminal statute of limitations in effect when a crime is committed controls. State v. Wadsworth, 293 So.2d 345, 347 (Fla. 1974). The legislature can extend the limitations period without violating the constitutional prohibition against ex post facto laws if it (a) does so before prosecution is barred by the old statute, and (b) clearly indicates that the new statute is to apply to cases pending when it becomes effective. United States v. Richardson, 512 F.2d 105, 106 (3rd Cir. 1975). Fortunately, we have been spared the task in this particular instance of ascertaining legislative intent from sometimes tenuous indicia. Our supreme court has expressly held that the legislature did not indicate that the new code provisions pertaining to limitations were to apply to cases pending when the code became effective, and that therefore those provisions have prospective application only. Reino v. State, 352 So.2d 853, 861 (Fla. 1977).

The trial court had no jurisdiction and the purported conviction must be reversed. Akers v. State, 370 So.2d 81 (Fla. 1st DCA 1979). The judgment and sentence are vacated and the case remanded to the court below with instructions to dismiss the information.

DANAHY and CAMPBELL, JJ., concur.

      . The conspiracy was unsuccessful, but of course that has no bearing on this case.

      . Throughout their briefs, the parties assert, without explanation, that the statute of limitations for the crime of conspiracy to commit first degree murder is three years under the new code. Our reading of the statutes does not comport with that conclusion. First degree murder is a capital felony. Section 782.-04(1 )(a), Fla. Stat. Conspiracy to commit a capital felony is a first degree felony. Section 777.04(4)(a), Fla. Stat. The statute of limitations on a first degree felony is four years. Section 775.15(2)(a), Fla. Stat. This case, of course, does not hinge on that point.


author: McCORD, Judge.

text:
    Vincent Anthony BUSCH, Appellant, v. STATE of Florida, Appellee.
    No. GG-445.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1980.
    Rehearing Denied Feb. 3, 1981.

      Michael J. Minerva, Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

The United States Supreme Court has vacated our judgment in this case [355 So.2d 488 (Fla. 1st DCA 1978)] and remanded the cause for further consideration, 446 U.S. 902, 100 S.Ct. 1826, 64 L.Ed.2d 255. On remand, we are to consider whether the holding in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), requires that the confession of Busch following his warrantless arrest in his home be suppressed. In our previous opinion in this case, on the authority of Perez v. State, 277 So.2d 778 (Fla. 1973), we found that the trial court was correct in denying Busch’s motion to suppress his confession. Since that opinion was handed down, the U.S. Supreme Court has ruled, in Payton, that the Fourth Amendment prohibits police officers from making a warrantless, noncon-sensual entry into a suspect’s home in order to make a routine arrest in the absence of exigent circumstances. The initial question here is whether the officers’ entry into Busch’s home was, in fact, nonconsensual. The evidence shows that Busch was implicated by another suspect in a robbery case. Without obtaining an arrest warrant, two detectives went to Busch’s home, were admitted by another occupant, found Busch asleep, and with their guns drawn awoke and arrested him. He was taken to jail, given the Miranda warnings, and within approximately three hours, he had given the officers a confession. The trial court found that the confession was freely and voluntarily given and, therefore, denied Busch’s motion to suppress it. Busch was subsequently convicted of armed robbery.

The key factor is that the officers were admitted to the home by another person. The record contains conflict and is unclear as to whether the admittance was consensual. Therefore, we remand to the trial court for further hearing on the question of whether or not the admittance of the officers was consensual. If the admittance was consensual, appellant’s conviction will stand because the holding in Payton would not apply, the arrest would be deemed legal and the subsequent confession would be admissible, the court having already found that it was freely and voluntarily given.

However, if the trial court finds on remand that the admittance of the officers was nonconsensual, then, under Pay-ton, the arrest was illegal and a more complicated question arises. If the arrest was illegal, then any statements made by Busch which were the fruits of the illegal arrest should be excluded from evidence. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Thus, the question to be considered will be whether the confession Busch seeks to have suppressed is, in fact, the fruit of the illegal arrest. The court in Wong Sun declared that verbal evidence which derives immediately from an unlawful entry and an unauthorized arrest is the fruit of the illegal action on the part of police officers and must be suppressed. However, the Wong Sun court also recognized that when the connection between the illegal arrest and the statement given had “become so attenuated as to dissipate the taint,” the statement is not considered to be the fruit of the illegal arrest, and, therefore, the statement is admissible. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). The court found that Wong Sun’s confession was not the fruit of his illegal arrest since, after the arrest, he was released on his own recognizance and returned voluntarily several days later to make the statement.

Therefore, if Payton applies, in keeping with Wong Sun v. United States, we must look to the circumstances surrounding Busch’s confession to determine whether the confession was “sufficiently an act of free will to purge the primary taint of the unlawful invasion.” Id. at 371 U.S. 486, 83 S.Ct. at 416. To do so, we must inquire as to what factors will purge the primary taint.

In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the court drew a distinction between satisfaction of Fourth and Fifth Amendment requirements. The court found that while the giving of the Miranda warnings might satisfy Fifth Amendment requirements, the giving of those warnings does not in and of itself break the causal chain between an illegal arrest and a confession. The Brown decision declared that the question of whether a confession is voluntary for Fourth Amendment purposes under Wong Sun should be answered on the facts of each case. The court stated:

No single fact is dispositive ... The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, (citation omitted) and, particularly, the purpose and flagrancy of the official misconduct are all relevant. .. And the burden of showing admissibility rests, of course, on the prosecution.

In Brown, the court found that in the less than two hours that elapsed between the arrest and the confession, there was no intervening event of significance which would purge the taint of the illegal arrest. The court found further that the arrest had a quality of purposefulness in that it was an “expedition for evidence” admittedly undertaken “in the hope that something might turn up.” Because of those factual circumstances in the Brown case, the court declined to remand the case for further factual findings, concluding that the state had failed to sustain the burden of showing that the evidence in question was admissible under Wong Sun. Compare also Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), which involved a situation similar to the Brown case and which reached the same result. In both Brown and Dunaway, the arrests were illegal because they were made without probable cause.

The instant case is governed by the principles set forth in Wong Sun, Brown, and Dunaway. However, unlike the Brown and Dunaway cases, we do not find that the officers here engaged in purposeful misconduct in order to effectuate the arrest of Busch. There is no dispute that the officers had probable cause to arrest Busch, and they effected the arrest in a manner that had not been declared illegal at that time. The circumstances surrounding Busch’s confession are not so clearly set forth in the record that we can make a determination as to whether or not the confession was given so freely and voluntarily as to purge the primary taint of the unlawful arrest. Therefore, contingent upon the trial court’s finding on the entry question, further proceedings should be had below to determine whether or not the facts surrounding the confession satisfy the Wong Sun requirements.

We have considered the state’s contention that Payton should not be given retrospective application and find it to be without merit. The United States Supreme Court would not have vacated the judgment in this case and remanded it to this Court for further consideration in light of Payton if there had been no intention on the part of the Supreme Court that Payton be applied to this case, which was not final and was pending in the Supreme Court at the time its opinion in Payton was rendered. Compare Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), which states at page 627, 85 S.Ct. at page 1736:

Under our cases it appears (1) that a change in law will be given effect while a case is on direct review, (citation omitted)

Remanded for further proceedings consistent with this opinion.

LARRY G. SMITH and SHIVERS, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Rex R. KLEPFER, Appellee.
    No. 79-1978.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1980.
    Jim Smith, Atty. Gen., and James S. Pur-dy, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and David A. Davis, Asst. Public Defender, Bar-tow, for appellee.
   HOBSON, Acting Chief Judge.

Appellant State of Florida appeals the trial court’s order granting appellee Klep-fer’s motion to suppress evidence. The State contends that Manatee County sheriff’s deputies effected a valid stop of Klep-fer’s automobile which led to the seizure of the suppressed evidence. We agree and reverse.

The facts on which the trial court based its order granting suppression are as follows: Deputy Sally Kintz stopped at a Kentucky Fried Chicken restaurant to pick up dinner on her way home from work. A female employee behind the counter appeared nervous and asked Deputy Kintz for help. The employee stated that she was afraid and went on to state:

I know a young man who’s in a lot of trouble and he’s going to get hurt and I don’t want this to happen to him. He’s dealing with drugs ... I saw him today. He showed me what he had in his car. He does all of this, and I’ve got to help him, because if I don’t help him, something terrible is going to happen to him.

The employee indicated to Deputy Kintz that the young man had taken a lot of cocaine and marijuana out of his car and shown it to her. She indicated the size of the packages and the fact that she had touched them. Deputy Kintz inquired as to whether the employee could identify cocaine and whether she had ever used cocaine. The employee replied, “Are your kidding? Doesn’t everyone?”

Deputy Kintz took down information, including Klepfer’s name, date of birth, telephone number, type of vehicle and tag number and the address where he might be found. The employee stated that she wished to remain anonymous.

Deputy Kintz proceeded directly to her home and called Detective William Steube, giving him the information at approximately 5:45 p. m. Detective Steube contacted Sergeant George Harris and advised him of the information concerning Klepfer. Detective Harris replied that, several days before, a man had come into his (Harris’) office, stating that he wished to remain anonymous and wanted to give information about someone in his family who was involved with a large amount of marijuana. The informant claimed that he had seen Klepfer bring marijuana into the house and had seen marijuana in the trunk of Klep-fer’s car. He further stated that he wanted to “help the boy out and get it stopped.”

Detectives Harris and Steube proceeded immediately to the area of appellee’s home and observed him outside his residence with several other persons. Detective Steube recognized Klepfer because, several months earlier, Steube had taken a burglary report from him. Also, Klepfer’s appearance, the description of his car and address matched the information received from Deputy Kintz.

The detectives began surveillance of the home and automobile at approximately 7:00 p. m. and continued doing so until 7:25 p. m. when they observed Klepfer enter his vehicle and two other persons enter a Datsun pickup truck. Both vehicles proceeded away from the house. Detective Harris followed the Datsun and Detective Steube followed Klepfer’s automobile.

Detective Steube stopped Klepfer’s vehicle, identified himself as a law enforcement officer, and advised Klepfer that he had reason to believe that Klepfer was carrying illegal narcotics in his vehicle. At that point, Detective Harris returned to the scene and Detective Steube asked Klepfer if they could search the automobile. Klepfer replied affirmatively as to the interior of the automobile but denied permission to search the trunk. The detectives conducted a search of the interior of the vehicle and found a plastic baggie of cocaine in the console. Detective Steube read Klepfer his Miranda rights and advised that he was under arrest at that time for possession of cocaine. Subsequently, the search was resumed and a plastic baggie containing marijuana residue was found hanging on the passenger doorknob and a matchbox containing a marijuana cigarette was located next to the driver’s seat. The officers then obtained the trunk keys, opened the trunk, and discovered two large plastic bags of marijuana and five bags of cocaine.

The question before us is whether the initial stop of Klepfer’s automobile was valid. Events which transpired after the stop are not in question, inasmuch as Klep-fer consented to the search of the interior of his vehicle. The standard by which we judge an investigatory stop of an automobile is whether the law enforcement officers had “a well-founded suspicion” that the occupant of the vehicle might be involved in criminal activity. Taylor v. State, 384 So.2d 1310 (Fla. 2d DCA 1980); Mock v. State, 385 So.2d 665 (Fla. 2d DCA 1980); State v. Baxter, 378 So.2d 1339 (Fla. 2d DCA 1980).

An anonymous tip can provide the “well-founded suspicion” to justify an investigatory stop if the information carries sufficient indicia of reliability. State v. Hetland, 366 So.2d 831, 839 (Fla. 2d DCA 1979). In that case, this court stated:

We believe that one such indicium is the specificity of the information given .... Such detail carries a strong indication that the information is based on the personal observation of the informant. Moreover, the information is corroborated when officers act promplty and find an individual in the named location who exactly fits the description ....

The anonymous tips received by law enforcement officers in the instant case were clearly specific with regard to Klepfer’s description, the make, color and tag number of his automobile, the address where he could be located, and nature of the criminal activity in which he was engaged. Further, the information was fresh and within the personal knowledge of the informants. Detectives Steube and Harris promptly corroborated the information when they arrived at the reported address and observed both Klepfer and his automobile.

We hold that the initial stop of Klepfer’s automobile was valid and that the trial court erred in granting the motion to suppress evidence. We therefore reverse the order suppressing evidence and remand this cause to the trial court for further action not inconsistent with this opinion.

REVERSED.

OTT and DANAHY, JJ., concur.

      . Aff'd, 387 So.2d 963, (Fla.1980).


author: DAUKSCH, Chief Judge. COWART, Judge,

text:
    Freddie Lee MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 79-948/T4-522.
    District Court of Appeal of Florida, Fifth District.
    Nov. 26, 1980.
    Rehearing Denied Jan. 13, 1981.
    Richard L. Jorandby, Public Defender, and Denise Banjavic, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Chief Judge.

In this appeal from a sentence in a murder case the appellant assigns as error the method by which the trial judge retained jurisdiction to review any parole release order issued during the first third of appellant’s term of confinement.

Under the provisions of section 947.16(3), Florida Statutes (Supp.1978), a sentencing judge, in certain enumerated cases, “may enter an order retaining jurisdiction over the offender for review of a [parole] commission release order. This jurisdiction . .. [shall apply] to the first third of the . . . sentence . .. . ” The statute also requires that “In retaining jurisdiction . .., the trial court judge shall state the justification with individual particularity, and said justification shall be made a part of the court record.”

While we agree the statute mandates a sentencing judge to state justification for his retention of a veto power over the release of a convict, we find no guidelines for the trial judge to follow. Thus we assume each order retaining jurisdiction must be based upon articulated substantial reasonable grounds to be determined in each case and, as the statute says, “with individual particularity.”

It is our assumption that the Legislature meant to allow review of these orders retaining jurisdiction because the statute requires the justification to be made a part of the court record. This review is rather like the review in a habitual felony offender sentence, section 775.084, Florida Statutes (1979), where it is necessary for the trial judge to properly determine it is “necessary for the protection of the public” to sentence the convict to an enhanced period of confinement. Without such a finding the appellate courts have reversed sentences and required new sentencing. Eutsey v. State, 383 So.2d 219 (Fla.1980); King v. State, 369 So.2d 1031 (Fla. 4th DCA 1979); Grey v. State, 362 So.2d 425 (Fla. 4th DCA 1978); Grimmett v. State, 357 So.2d 461 (Fla. 2d DCA 1978); Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976).

Without going into the basis of our government and a treatise on the theories and applications of the separation of powers, it is sufficient, hopefully, to say that the Legislature has the sole authority to determine what acts are criminal acts and what the penalties for crimes are to be. The legislative authority in the penalties area allows for the setting of máximums and minimums, both of confinement and probation, the limits and guidelines for parole, and the particular means and methods of execution of sentences. The courts have the sole province over the particular sentence to be given an individual, but only within the statutory authority given in the various sentencing statutes, and the executive has the duty to see that the sentences are enforced. The executive performs its function through the governor and cabinet in its pardon and parole authority, and with the parole and probation commission in its statutorily limited powers, and finally, the Department of Corrections in its particular field, also statutorily limited.

All of this is to say the Legislature had the authority to say how a sentencing judge may retain jurisdiction over an offender and thus had the authority to require that it be done only with individually particularized justification. In this case the sentencing judge justified in the record the reasons for retaining jurisdiction by pointing out that the appellant had committed the most serious offense of murder, she has a reputation of aggressive behavior and she had served a sentence for hitting someone with an iron. A reputation for and a conviction of aggressive and injurious behavior is certainly sufficient justification for the retention of jurisdiction in a murder case. We affirm the sentence.

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

I agree the sentencing judge properly justified retaining jurisdiction to review any parole release order and that the case should be affirmed. Merely because the statute set no guidelines I am unwilling to assume that the legislature intended such justification be based on grounds reviewable for substance and reasonableness by an appellate court. The statute does not say this and logic does not lead to this conclusion. Everything a trial judge does should be done in a reasonable manner but that does not mean that everything he does is, or should be, reviewable by appeal.

Proceedings under the habitual offender statute, Section 775.084, Florida Statutes, do not resemble, and provide no analogy to, Section 947.16(3), Florida Statutes, which provides for trial court review of parole releases. The habitual offender statute requires a separate proceeding conducted in a particular manner in which the trial court must make a finding, based on a preponderance of the evidence, that the accused is an habitual offender, the definition of which requires findings of specific facts about the defendant, his present offense and his prior convictions, as well as a general finding or prediction that an extended sentence is necessary to protect the public from the defendant’s criminal activity. Since an extended sentence depends on these nev^ findings of fact, which are not part of the original offense, due process requires the usual constitutional safeguards relating to the procedure for establishing them and without such findings extended sentences are reversed as the majority correctly observes. The detailed procedure in that statute is designed to meet those legal necessities and specifically provides in Section 775.084(3)(d), Florida Statutes, that each of the required findings is appealable.

Trial court action to retain and review parole releases, is in three steps: (1) At sentencing the trial court enters an order retaining jurisdiction to review a parole commission release order stating the justification therefor with individual particularity; (2) within ten days of notice of a release order the sentencing court must notify the commission it still desires to retain jurisdiction; and (3) within thirty days of receiving the release order and documentation from the commission, the sentencing court must review the commission release order, its findings and the evidence upon which it is based, and if the trial court finds either that (a) the release order is not based on competent substantial evidence, or (b) that the parole is not in the best interest of the community or the inmate, the trial court may vacate the release order. The initial decision to retain jurisdiction is not conditional upon any evidence or finding of fact and is not subject to any statutory guidelines or criteria. It is purely an exercise of general judgment in contemplation of the possible desirability of later judicial action. Obviously, the first two procedural steps, merely retaining jurisdiction, are not as consequential as the later actual judicial act of exercising the retained authority with its required review of the commission’s findings and of the quality of the supporting evidence and its effect of preventing release from prison. To hold that the trial court’s initial decision retaining jurisdiction is reviewable on appeal when its ultimate action, actually vacating parole, is not reviewable creates an amazing legal paradox; yet this is the result here because the final action of the trial court vacating or approving the parole release order is not appeala-ble. Section 947.16(3)(g), Florida Statutes.

The requirement of “justification with individual particularity” causes the trial judge to reconsider the purpose of the statute in each case rather than to approve it in principle and to retain jurisdiction in every sentence. The requirement of a record permits the sentencing judge or his successor, to later have a record of why the initial decision was made in that particular case; it also serves to cause the parole commission to send a notice of the release order to the trial court under Section 947.16(3)(c), Florida Statutes. These purposes for a record do not suggest or require appellate review. The statute only requires the sentencing judge to state and record the matters that in the particular case satisfied his conscience and caused him to form the decision to exercise his judgment in favor of retaining jurisdiction. To hold that the trial judge’s reasons must be substantial and reasonable and to further assume jurisdiction to review his reasoning will serve no useful purpose. With no fact findings we have nothing with which to meaningfully compare or test his justification. We can only decide, from case to case, if the reasons given by the sentencing judge sound, to us, “substantial” and “reasonable.” We will mostly be reviewing the particular trial judge’s ability to express or articulate his conclusion. There being no requirement for underlying facts and no objective guidelines for the trial judge, or for us, we can only substitute our opinion for his and duplicate, or usurp, this sentencing function which is properly and exclusively that of the trial court. This is contrary to the statute and good law. The specific statutory denial of appellate review of trial court action vacating a parole release order indicates the Legislature intended to trust and rely on the experience, reasoning, discretion and judgment of the trial court to make the threshold decision to retain jurisdiction. We should do no less.

      . Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 1212, 18 L.Ed. 326, 330 (1967).

      . See, e. g., Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979) concerning the use of hearsay in habitual offender proceedings.

      .These three steps are not unlike discharging a firearm where (1) the safety is released, (2) the hammer is cocked, and (3) the trigger is pulled. With three deliberate sequential judicial acts required it is more likely that we err than for the trial judge to go off half-cocked and to accidentally shoot down a parole release order.


text:
    Charles Hugh BROWN, Appellant, v. STATE of Florida, Appellee.
    No. AA-179.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1980.
    Rehearing Denied Feb. 3, 1981.
    Norman J. Abood, Jacksonville, Judith A. Bass and Theodore L. Tripp, Jr., of Simon, Schindler & Tripp, Miami, and Richard C. McFarlain, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

On June 15, 1977, we rendered our decision affirming the trial court without opinion on this appeal. Thereafter, upon appellant’s petition, the Supreme Court of Florida denied certiorari and subsequently denied petition for rehearing. Appellant then petitioned the United States Supreme Court for writ of certiorari to review this court’s decision and on April 21, 1980, that court entered its order and mandate granting the petition for writ of certiorari, vacating our judgment and remanding the case to this court for further consideration in light of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). We subsequently received from the parties briefs on the applicability of Payton and in compliance with the Supreme Court’s mandate have reconsidered this cause. We reverse and remand to the trial court for further proceedings.

The trial court adjudged appellant guilty of possession of more than five grams of marijuana with intent to sell and guilty of possession of a device, contrivance, instrument, or paraphernalia, to wit: a pipe, with intent that said device be used for unlawfully administering marijuana. The convictions were rendered following nolo conten-dere pleas by appellant with reservation of his right to appeal the trial court’s order denying his motion to suppress evidence. The evidence sought to be suppressed consisted of articles seized at appellant’s home and premises at the time of the arrest of appellant and other persons and articles subsequently seized upon execution of a search warrant to search the “premises together with the yard and curtilage thereof ...” Appellant contends the articles were unlawfully seized because the seizure resulted from an unlawful arrest; that the arrests of him and others in his home were unlawful because they were made without a warrant and without the existence of exigent circumstances to justify entering his home without a warrant.

As pointed out in Payton, Florida is one of 24 states which have, until the Payton decision, permitted warrantless entry into the home to arrest even in the absence of exigent circumstances (445 U.S. 598, 100 S.Ct 1386, 63 L.Ed.2d 658). By its ruling in Payton, the Supreme Court, for the first time, holds warrantless nonconsensual entry into a home for the purpose of making a routine felony arrest to be a violation of the Fourth Amendment of the United States Constitution in the absence of exigent circumstances justifying such entry. In so ruling, the Supreme Court said:

But the critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual’s home. The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their ... houses ... shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable Government intrusion.” Silverman v. United States, 365 U.S. 505, 511, [81 S.Ct. 679, 682] 5 L.Ed.2d 734, 97 A.L.R.2d 1277. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

We must consider the pertinent facts in the case sub judice in order to apply this new ruling of the United States Supreme Court.

Appellant, during the spring of 1975, was under surveillance by undercover police on suspicion of dealing in drugs in Jacksonville, Florida. The following is a summary of the undisputed evidence presented at the hearing on the motion to suppress: Officer D. E. Taylor, working under cover, met Anthony J. Cataldo at approximately 10:30 p. m. on May 24, 1975. Cataldo advised that he had a large quantity of marijuana and Taylor said he was interested in purchasing 20 pounds. Cataldo would not take Taylor directly to the source but agreed to take him to a location near the source. Cataldo then directed Taylor to a location near the intersection of Valdura and 103rd Street, where Taylor gave him $820 front money with which to buy 20 pounds of marijuana. Cataldo advised that he would return in a few minutes with the marijuana. Taylor had an idea where Cataldo would obtain the marijuana and had a surveillance team, Officers Howell and Higgin-botham, set up at the premises located at 6209 Shindler Drive, which Taylor believed to be occupied by appellant. Taylor was in radio contact with the surveillance unit and he testified that he had reason to believe that appellant was involved in heavy drug traffic.

When Cataldo departed from the rendezvous to make the purchase, he advised that when he returned in a few minutes Taylor was to follow him down Valdura Street and that he (Cataldo) would pull off the road and turn the marijuana over to Taylor. The $820 front money that Taylor gave to Cataldo was marked in the sense that Taylor had the serial numbers for the bills. When Cataldo departed, Taylor so advised the surveillance unit and requested them to make contact if and when Cataldo arrived at 6209 Shindler Drive. Cataldo was driving a green Chevrolet Monza. In approximately a minute and a half to two minutes, the surveillance unit notified Taylor that Cataldo had pulled into the driveway of the premises at Shindler Drive. Officer Howell of the surveillance unit was situated across the street from the premises with a clear view. He observed the Monza enter the yard and drive up to the house. The driver exited the automobile and walked around to an area in the back of the house. A few minutes later, he reappeared with another individual and walked down beside the garage where Howell lost sight of them for three or four minutes. Then two individuals reappeared and walked up to the automobile. The taller of the two (not the person who drove up in the car) placed a bundle or package in the front from the driver’s side of the Monza. When the Mon-za left the premises, Officer Howell immediately radioed Officer Taylor and advised that the Monza was headed back in his direction. This was approximately 10 minutes from the time Cataldo had left Taylor. Approximately one-half to two minutes later Cataldo arrived at the rendezvous point, and Taylor followed him down Valdura Street at which time Cataldo turned six pounds of marijuana over to him. At this point, Taylor placed Cataldo under arrest and advised him of his rights.

After advising Cataldo of his rights, Taylor questioned him and Cataldo stated that he had been to the house on Shindler Drive where he got the marijuana from a man named Chuck Brown. Cataldo also told Taylor that Brown had told him that he had already sold 400 pounds of marijuana that day. In addition to the six pounds of marijuana that Cataldo had in his possession for Taylor, he also had two $20 bills of the marked money that Taylor had given him to purchase the 20 pounds. Cataldo advised that he was paying $130 a pound for the marijuana and selling it for $160 a pound. Cataldo also advised that he could not see any additional marijuana at Brown’s house but that Brown had told him he had at least 20 pounds because that was the amount that Taylor initially planned to buy.

As to the exact location on the premises from which the marijuana came, Cataldo said that it came from the garage. After placing Cataldo under arrest and searching him, Taylor next advised the surveillance unit that the buy had been consummated and that Cataldo had been placed under arrest. Subsequently, Taylor telephoned the assistant state attorney, told him what had transpired and sought advice as to what should be done next. The assistant state attorney told Taylor that he believed there was sufficient probable cause to get a search warrant.

Following the phone call, Taylor and the other officers went to the premises at 6209 Shindler Drive. Taylor was the first officer to arrive. The premises were fenced with a gate at the driveway. Taylor drove through the gate and into the premises, and as he got out of the car, a man came out the back door of the house. [He subsequently discovered this man was Chuck Brown (appellant).] Upon exiting the car, Taylor was standing at the back of the house, and appellant was standing on a small back porch or stoop. Taylor advised appellant of his identity and that he was under arrest. At the same time, Taylor could smell burning marijuana from inside the residence. Another officer behind Taylor came up and detained appellant while Taylor entered the back door of the residence and walked into a small dining room area. At this point, Taylor saw four or five people sitting around a table, one of whom was smoking a marijuana cigarette. He advised all of the individuals that they were under arrest and then checked the rest of the house to determine whether anybody else was inside. He made no search of the house at that time but was simply looking for other individuals who might be in the house. All of the individuals were searched in the dining area, and marked bills initially given to Cataldo were recovered from appellant’s pocket. All of the individuals, with the exception of appellant, were transported to jail. Officers Howell and Higginbotham remained with appellant until Taylor could return with a search warrant. None of the officers conducted any form of search of the house or garage until the search was subsequently made pursuant to a search warrant which was obtained by Taylor. Appellant told Taylor that he lived there and was the only person who lived there.

The search warrant was issued for the premises and the curtilage described in the warrant. The affidavit upon which the search warrant was issued was based entirely upon the circumstances of the marijuana buy which had been made at the premises by Cataldo. It did not mention the subsequent intrusion by the officers into the premises and the arrest of the occupants.

Pursuant'to the ruling of the United States Supreme Court in Payton, the arrests were unlawful in that they were made upon intrusion into appellant’s home without a warrant. No exigent circumstances for entering the premises without a warrant have been shown to exist. Thus, under Payton, the motion to suppress should have been granted as to items seized upon the search of the individuals’ persons and the immediate area made at the time of their arrest. These would include the marked bills and other unmarked money recovered upon search of the person of appellant when arrested. They would also include the roach clip which was in possession of the individuals around the table when the officer entered the kitchen, as well as the yellow legal pad, also referred to as a tally sheet, which was recovered from one of the individuals at the kitchen table at the time of the arrest.

There was no error in denial of the motion to suppress other items which were seized upon execution of the search warrant. These items include 180 pounds of marijuana, marijuana plants, marijuana pipes, marked money found in a wallet in the bedroom of the house, two sets of scales, and marijuana found in a tin container on the kitchen table. It appears from the evidence that none of these items were discovered until the search was made pursuant to the search warrant. The fruit of the poisonous tree doctrine enunciated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), is not applicable to the warrant search because the issuance of the warrant was not predicated in any way upon, and thus did not result from, the unlawful arrests. The evidence obtained upon the warrant search had an origin independent of the arrests and was in no way tainted by the arrests. The warrant was issued solely upon the information contained in the affidavit for search warrant showing probable cause to believe appellant’s premises contained contraband. That information related only to the buy of marijuana by Cataldo and the circumstances surrounding it.

Appellee contends that Payton should not be applied retrospectively. This contention is without merit. See Busch v. State, 392 So.2d 272 (Fla. 1 DCA, 1980).

Appellee also contends that Payton is not applicable to the factual situation sub judi-ce because appellant had stepped out of the back door of his house onto the porch when arrested; that the intent of Payton was to protect intrusion into one’s home. We are unable to agree under the facts of this case. In this connection we have considered the somewhat similar case of United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). There an undercover officer arranged a heroin buy with an individual whom he immediately placed under arrest. The officer was then informed that the money was in the possession of one Mrs. Santana, who lived approximately two blocks away. The officers proceeded to Mrs. Santana’s house in a van. When they arrived, they saw her standing in the doorway of her house with a brown paper bag in her hand. They pulled their vehicle to within 15 feet of where Mrs. Santana was standing and got out of their van while shouting “police” and displaying their identification. As they approached, Mrs. Santana retreated into the vestibule of her house. The officers followed her through the open door and caught her in the vestibule. As she attempted to pull away, the paper bag which she was holding tilted and what appeared to be heroin in glazed paper packets fell to the floor. She was placed under arrest and subsequently charged with federal narcotics violations. The Supreme Court upheld the arrest holding:

... a suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson [United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)] by the expedient of escaping to a private place.

The two questions which the court considered were (1) whether, when the police first sought to arrest Santana, she was in a public place; and (2) whether her aet of retreating into her house could thwart an otherwise proper arrest. As to the first question, the court concluded that Mrs. Santana “was not in an area where she had any expectation of privacy.” The court stated, “She was not merely visible to the public but she was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house.” In contrast to Santana, the officers in the case sub judice drove into Brown’s enclosed yard at approximately 1:45 a. m. and arrested him when he came out on his back porch. Both the officers and Brown were in a place where Brown, particularly at that time of night at his back door, could expect privacy. He was on his back porch, a part of his house, and the officers had driven into his enclosed private yard. On the other hand, in the Santana opinion, there is no indication that the officers drove into an enclosure of Mrs. Santana’s premises. The only logical conclusion we can reach from the opinion is that, unlike the case sub judice, the officers did not drive their vehicles onto private property to reach the house but set the arrest in motion from the public street.

We reverse with directions to grant the motion to suppress insofar as it seeks suppression of the evidence seized upon the arrest of appellant and the other individuals and to deny the motion in other respects. Reversed and remanded for further proceedings consistent herewith.

MILLS, C. J., and LARRY G. SMITH, J„ concur.

      . There is some confusion as to the exact spot where appellant was arrested. On direct examination, Taylor testified as follows:
      We drove into the driveway and as I got out of the car — I was in the first car that arrived — a man came out of the back door, a man I now know as Chuck Brown. I was standing right at the back door of the house. I advised him that we were police officers and he was under arrest and at that point I could smell burning marijuana from inside the residence. Somebody else was coming up behind me and they detained Mr. Brown. I went on into the residence and walked into a little dining room area that projects into the kitchen.
      On cross-examination he testified:
      Q Where was Mr. Brown at the time you placed him under arrest?
      A He was in the kitchen. He was arrested at the back porch. We asked Mr. Brown to step inside so we could round up everybody involved so we would have them in one area so we could watch them.
      For the purpose of our ruling, we consider that the arrest was either made or initiated on the back porch.


author: DANAHY, Judge.

text:
    Ronnie WOODRUFF, Appellant and Cross-Appellee, v. The EXCHANGE NATIONAL BANK OF TAMPA, Appellee and Cross-Appellant.
    Nos. 79-996, 79-1336 and 79-1099.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1980.
    Rehearing Denied Jan. 14, 1981.
    Michael S. Moreland, Fort Myers, for appellant and cross-appellee.
    James V. Lau and Steven D. Merryday of Holland & Knight, Tampa, for appellee and cross-appellant, the Exchange Nat. Bank of Tampa.
   DANAHY, Judge.

We have considered the point asserted by appellant on these appeals and find it to be without merit. However, we find merit in the point raised on cross-appeal in Case No. 79-996.

Cross-appellant, The Exchange National Bank of Tampa (The Bank), sued its debtors and their guarantor, cross-appellee Ronnie Woodruff (Woodruff), to recover a deficiency due the Bank by the debtors under a secured second renewal note dated August 10,1977. Following default by the debtors, the Bank took possession of the note’s security and sold it for an amount exceeding $275,000. That amount was applied against the indebtedness, leaving the deficiency for which this suit was brought.

Woodruff had executed a guaranty of the note reading as follows:

The undersigned [Woodruff] .. . hereby unconditionally guaranties to Bank .. . that all sums stated in such [note] to be payable will be promptly paid in full when due in accordance with the provisions of such [note] . . . together with any and all legal and other costs and expenses paid or incurred in connection therewith ....
PROVIDED, HOWEVER, that the limit of the liability of the undersigned hereunder which shall exist at any time shall be the sum of $275,000 exclusive of interest, but in the event this limit is exceeded the undersigned shall nevertheless be liable hereunder to the extent of said limit and the enforceability of this guaranty shall not be impaired or diminished by such excess.

The trial judge ruled that Woodruff was not liable to the Bank for the deficiency because his liability under the guaranty extended only to $275,000 of the debtors’ indebtedness to the Bank under the note, so that his obligation was satisfied as a matter of law when the indebtedness was satisfied to the extent of $275,000 by application of the security. We reverse the final judgment to the extent of that ruling.

We agree with the Bank’s position that the limit of liability stated in the guaranty expressed a limit on Woodruff’s aggregate liability rather than a designation of the first $275,000 of the indebtedness as that part of the debt which Woodruff guarantied. A general guaranty that contains only a ceiling on the guarantor’s aggregate liability requires the guarantor to answer for deficiencies up to the specified ceiling without respect to the amount of proceeds received by the creditor from the debtor. Strange v. Cooper Grocery Company, 4 S.W.2d 232 (Tex.Civ.App.1928), reversed on other grounds, 18 S.W.2d 609 (Tex.Com.App.1929).

We reverse in Case No. 79-996 with directions that the trial judge enter an amended final judgment in favor of the Bank and against Woodruff for the deficiency due from the debtors under the second renewal note of August 10, 1977. The final judgment in that case is affirmed in all other respects, together with the judgments which are appealed in Case No. 79-1099 and Case No. 79-1336.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

RYDER, Acting C. J., and DEWELL, JOHN H., Associate Judge, concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Margaret D. MURPHEY, Appellant, v. DEAN WITTER & CO., INCORPORATED, Appellee.
    No. 79-185.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1980.
    E. Louis Fields of E. Louis Fields, P. A., Fort Lauderdale, for appellant.
    John W. Kearns and Guy B. Bailey, Jr., of Bailey & Dawes, Miami, for appellee.
   PER CURIAM.

AFFIRMED.

MOORE and BERANEK, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I agree with the majority that the trial court did have jurisdiction to confirm the award of arbitration even though that award was made in New York. Unlike the situation in Knight v. H. S. Equities, Inc., 280 So.2d 456 (Fla. 4th DCA 1973) and Damora v. Stresscon International, Inc., 324 So.2d 80 (Fla.1975), the appellant here voluntarily chose to go ahead and arbitrate her dispute with appellee in New York as provided by the parties’ agreement. The agreement further provided that the arbitration award could be enforced by any court acquiring jurisdiction. The appellant herself initiated this action and sought approval of the award. It is true that she later voluntarily dismissed her action but that did not occur until the appellee had counter-claimed for enforcement of the award. In Knight, supra, we held that the trial court lacked the authority to compel someone to arbitrate in another jurisdiction. Here, arbitration has already taken place and resulted in an award which the appellant has not challenged. As noted in Knight:

It is recognized that agreements to arbitrate disputes are generally looked upon with approval by the courts and every reasonable presumption will be indulged to uphold arbitration proceedings which have resulted in an award.

As emphasized by the court in Knight, courts are especially prone to uphold arbitration proceedings which have resulted in an award. That is precisely what took place here.


text:
    Jamie Augusto CARVAJAL, Appellant, v. STATE of Florida, Appellee.
    No. 80-406.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1980.
    Rehearing Denied Jan. 13, 1981.
    J. Leonard Fleet, Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Jamie Carvajal appeals convictions and sentences for importation of marijuana, possession of more than 100 pounds of marijuana, ' and possession of marijuana with intent to sell. The only issue he raises which we feel to have merit is the legality of his sentence for count 3, possession of more than 100 pounds of marijuana.

Appellant was fined $10,000 and sentenced to a ten-year prison term for this offense. However, this court has held in Reinersman v. State, 382 So.2d 325 (Fla. 2d DCA 1980), that simple possession of more than 100 pounds of marijuana is a third degree felony which carries a maximum prison term of five years and a maximum fine of $5,000. § 775.083(l)(c) and § 775.-082(3)(d), Fla.Stat. (1977). Thus both the fine and the prison term imposed upon appellant on this count are excessive and must be reversed.

Accordingly, appellant’s sentence on count 3 is vacated and the cause is remanded for correction of the sentence on this count. Appellant need not be present for this purpose. The judgments and sentences are otherwise affirmed.

REVERSED AND REMANDED WITH DIRECTIONS.

RYDER, Acting C. J., and SILVER-TOOTH, LYNN N., Associate Judge, concur.


author: PER CURIAM.

text:
    Lillian FIGUEREDO, Appellant, v. LEATHERBY INSURANCE COMPANY, and Government Employees Insurance Company, Appellees.
    Nos. 78-2239, 79-75.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.
    Rehearing Denied Jan. 26, 1981.

      Horton, Perse & Ginsberg and Edward A. Perse, Miami, Bernard H. Butts, Hialeah, for appellant.
    Prunty, Ross & Olsen and Harry M. Ross, Lane, Mitchell & Harris and Byron B. Mathews, Jr., Miami, for appellees.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Appellant, defendant/counter-plaintiff/ third party plaintiff seeks reversal of a summary final declaratory judgment and an amended summary final declaratory judgment entered in the Circuit Court of Dade County, Florida in a dispute as to insurance coverage between the two insurers and the insured.

The trial court found that there existed no genuine issues of material fact and rendered summary final declaratory “no coverage” judgment in favor of appellees, Leath-erby and Geico. We find error and reverse.

We hold that a person who is operating a vehicle with the owner’s permission and is injured by the negligence of a driver of another automobile may “stack” his own uninsured motorist coverage with that of the vehicle’s owner in order to recover an amount in excess of the tortfeasor’s liability coverage pursuant to Section 627.727(2)(b), Florida Statutes (1975) .

The judgments appealed are reversed on the authority of Cox v. State Farm Mutual Automobile Insurance Co., 378 So.2d 330 (Fla.2d DCA 1980); Lezcano v. Leatherby Insurance Co., 372 So.2d 214 (Fla.4th DCA 1979) and United States Fidelity & Guaranty Co. v. Curry, 371 So.2d 677 (Fla.3d DCA 1979), cert. granted, 395 So.2d 530 (Fla.1980).

Reversed and remanded.

      . This accident occurred in 1975; therefore, the “antistacking” statute, Section 627.4132, enacted in 1976, is not applicable.


author: FRANK D. UPCHURCH, Jr., Judge. DAUKSCH, Chief Judge,

text:
    In the Interest of T. L. et al., minor children, Appellants, v. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellee.
    Nos. 78-2477/T4-296, 79-121/T4-371 and 79-290/T4-305.
    District Court of Appeal of Florida, Fifth District.
    Dec. 10, 1980.
    Rehearing Denied Jan. 15, 1981.

      Judith A. Ginn, Orlando, for appellants.
    Sally Dee Rest of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P. A., Orlando, for appellee.
    Walter Komanski, and Paul Camp Lane, Legal Aid Society of Orange County, Orlando, amicus curiae.
   FRANK D. UPCHURCH, Jr., Judge.

Three appeals have been consolidated for consideration. The first involves a habeas corpus petition directed at alleged improprieties of the court’s procedure in asserting temporary custody over minor children pending final adjudication of dependency. The issues raised in the habeas corpus petition are now moot because there has been a permanent adjudication of dependency; therefore, the petition for writ of habeas corpus is dismissed.

The adjudicatory hearing was concluded on December 8,1978, and the court entered its order finding the children dependent on December 14. Appellant took an appeal from that order. A further dependency order was rendered by the court on January 22, 1979, and appellant appealed from that order. Both appeals, for the purpose of this opinion, will be treated as one.

The questions raised on appeal are:

Whether the state’s failure to timely comply with the Uniform Child Custody Jurisdiction Act affected the circuit court’s jurisdiction over the subject matter. Whether the mother was entitled to court-appointed counsel and whether her counsel was given sufficient time to prepare for trial.

We find no reversible error and affirm. The Uniform Child Custody Act, sections 61.1302-61.1348, Florida Statutes (1979), regulates the conduct of “custody proceedings” which include dependency proceedings. § 61.1306(3), Fla.Stat. (1979). Section 61.132 of this act requires that:

[ E]very party in a custody proceeding, in his first pleading or in an affidavit attached to that pleading, shall give information under oath as to the child’s present address, the places where the child has lived within the last five years, and the names and present addresses of the persons with whom the child has lived during that period.

In this case, the information was not filed until December 4, 1978, almost two months after the children were taken into custody and six weeks after the initial pleading to determine dependency was filed. Appellant contends that this requirement is jurisdictional. This argument ignores the express language of section 61.1308, Florida Statutes, which provides:

[ A] court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if ... this state ... is the home state of the child at the time of commencement of the proceeding. . . .

This statute sets out the prerequisites for the exercise of the court’s jurisdiction. Detko/Roberts v. Stikelether, 370 So.2d 383 (Fla. 4th DCA 1979). While the failure of the court to require this information to be filed is error, it is not sufficient to deprive the court of jurisdiction. There was other competent evidence apart from this filing for the court to determine that it had jurisdiction and the information was filed in time for the court’s consideration.

As. to the second question, appellant argues that, even though she was indigent, the state never advised her of her right to counsel. There is some authority for the proposition that indigent parents are entitled to counsel at the state’s expense. In the Interest of R.W.H., 375 So.2d 321 (Fla.2d DCA 1979); Davis v. Page, 618 F.2d 374 (5th Cir. 1980). We need not address the point here because it is moot. Appellant was represented by counsel prior to the adjudicatory hearing.

The hearing was originally scheduled for October 27, but was continued until November 13 to give the appellant an opportunity to obtain counsel. Her attorney agreed to represent her on October 27. On November 13, after the hearing was underway and without previously moving to continue the hearing, counsel then moved to continue on the grounds that she was inadequately prepared. The judge denied the continuance. Appellant claims this denial prevented her from adequately presenting her side of the case. The second part of the hearing was scheduled for December 8. In denying the motion to continue, the judge announced that the appellant could present any rebuttal or impeachment evidence she deemed necessary to a complete presentation of her case at the December 8 hearing.

It therefore appears that if there were prejudice to appellant’s right to a fair hearing (and we do not so find), it was caused by her counsel rather than by any action of the state. It was also incumbent upon the trial judge to hold the adjudicatory hearing within ninety (90) days from the date the children were taken into custody. Fla.R. Juv.P. 8.180(b), (c).

AFFIRMED.

SHARP, J., concurs.

DAUKSCH, C. J., concurs specially with opinion.

DAUKSCH, Chief Judge,

concurring specially:

While I concur in the result reached, I do have a comment. I do not think the Uniform Child Custody Jurisdiction Act has anything to do with this matter because the children and the mother are residents of Florida and there is no hint in the record of any interstate involvement in the custody or dependency of these children. See Adams v. Adams, 374 So.2d 29 (Fla.3d DCA 1979).

      . This section provides:
      ‘Custody proceeding’ includes proceedings in which a custody determination is one of several issues, such as an action for dissolution of marriage or separation, and includes child neglect and dependency proceedings. (Emphasis added.)

      . Fla.R.Juv.P. 8.110(c), (d).


author: DAUKSCH, Chief Judge.

text:
    Irving T. BIRTLEY and Jessie L. Birtley, husband and wife, Appellants, v. FERNANDEZ COMPANY, a Florida Corporation, Appellee.
    No. 80-21.
    District Court of Appeal of Florida, Fifth District.
    Dec. 10, 1980.
    Rehearing Denied Jan. 13, 1981.
    Nord L. Johnson of Rano, Cauvel & Johnson, P. A., Deland, for appellants.
    William A. Spence, Ormond Beach, and Richard R. Cook, Daytona Beach, for appel-lee.
   DAUKSCH, Chief Judge.

This is an appeal of final judgment which found that appellants had failed to meet the requisite burden of proof to prove adverse possession. We find that there was clear and convincing proof that appellants adversely possessed that portion of the disputed parcel of property south of a line described by appellee’s witness, Mr. Feasel. Therefore we reverse the final judgment and remand the cause to the trial court.

A pre-emptive acquisition of rights in real property owned by another is not favored in the law and the acquisition of such rights is legally restricted. Downing v. Bird, 100 So.2d 57 (Fla.1958). However, where an occupant of property under color of title openly and notoriously is in continuous actual possession of property in opposition to the rights of the true owner for a period greater than seven years, then he is holding the property adversely. Section 95.16, Fla.Stat. (1972). Such adverse possession of real property causes real title of the property to vest in the possessor and his successors. Downing v. Bird; Osceola Fertilizer v. Beville, 86 Fla. 479, 98 So. 354 (1923). A party may adversely possess less than the total property described in his document of title.

Appellants claim title to a small triangular parcel of property adjacent to Lake Winnemissett, as shown on the drawing.

This claim is based upon a 1935 deed and the adverse possession of this parcel by the Dooleys, the previous owners of appellants’ property, from 1948 through 1961. Mrs. Dooley testified that her family had used the disputed parcel continuously from 1948 through 1961; that her family put up “no trespassing” signs to keep off all other persons; that members of her family were the only persons using the disputed parcel during these years and that her family did not get along with and stayed away from the neighbors who owned the disputed parcel by reason of superior record title. This testimony shows that the Dooleys made open and notorious use of the parcel for the requisite time period to the exclusion of others. This use was also hostile because it was inconsistent with and contrary to the use and rights of the owners of the property. Downing v. Bird; Porter v. Lorene Investment Company, 297 So.2d 622 (Fla. 1st DCA 1974).

Mr. Feasel, a resident of the neighborhood since his birth in 1922, testified for the defense. He agreed that the Dooleys had continuously maintained part of the disputed property, but placed the boundary as being “a line roughly perpendicular to the hypotenuse of that triangle ...” created by the intersection of Lake Charles Road and Lake Winnemissett Drive. Mr. Feasel stated that the record owner never used the property south of this line; it was maintained and used by the Dooleys.

Thus this record shows that all of the evidence presented to the trial court showed adverse possession of the southern portion of the disputed parcel under color of title. Even though the trier of fact was able to evaluate the credibility of the witnesses, the uncontradicted sworn testimony cannot be ignored in this case where the key and only witness for the defense having personal knowledge of the disputed parcel generally agreed that part of this parcel was adversely held. See Edwards v. Hardin Properties, Inc., 313 So.2d 82 (Fla. 2d DCA 1975).

The judgment is reversed and remanded to the trial court for entry of a judgment for appellants establishing title by adverse possession of that portion of the disputed property south of the line established by Mr. Feasel.

REVERSED AND REMANDED.

ORFINGER, J., and EVANS, VERNON W., Jr., Associate Judge, concur.

      . It is by this deed color of title was established at trial.


author: GRIMES, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. L. H., a child; C. J. D., a child; G. P. S., a child; D. T. H., a child; H. A., a child; M. D. B., a child; A. C., a child; R. A. J., a child; T. O., a child; and K. G. D., a child, Appellees.
    Nos. 80-1196, 80-1216, 80-1218, 80-1219, 80-1269, 80-1271, 80-1272, 80-1274, 80-1277 and 80-1322.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Jack O. Johnson, Public Defender, and Douglas P. Brinkmeyer, Asst. Public Defender, Bartow, for appellees.
   GRIMES, Acting Chief Judge.

These appeals present the issue of whether the amount of time the state has to file a delinquency petition after a complaint has been referred to a juvenile intake office is a matter of substantive or procedural law.

The state filed a number of delinquency petitions against appellees more than thirty but less than forty-five days from the date the applicable complaints were referred to the intake office. The trial judges dismissed the petitions because at that time Florida Rule of Juvenile Procedure 8.110(e) required the court to dismiss a petition with prejudice if the state did not file it within thirty days of the date of intake. The state argues that under section 39.05(6), Florida Statutes (1979), it was entitled to forty-five days from the dates of intake within which to file its petition. Thus, the proper determination of this case requires an analysis of the interplay between the legislation concerning juvenile delinquency and the rules of juvenile procedure.

In 1973 the legislature first provided that a delinquency petition “shall be dismissed with prejudice if it was not filed within thirty days from the date the complaint was referred to the intake office.” § 39.05(7), Fla.Stat. (1973). Rule 8.020(5) of the Rules of Juvenile Procedure (1973 revision) then provided for the same thirty day filing requirement. In the course of revamping the law on juvenile justice in 1978, the legislature extended the period within which the state had to file the petition after intake to forty-five days. Ch. 78-414, § 8, Laws of Fla. Effective June 1980, the supreme court amended its applicable juvenile rule to forty-five days. In re Florida Rules of Juvenile Procedure, 389 So.2d 197 (Fla.1980). In all of the cases before us, the complaints were referred to the intake office during the period of time in which the statute allowed forty-five days for filing and the juvenile rule of procedure permitted only thirty.

The state relies heavily upon S. R. v. State, 346 So.2d 1018 (Fla.1977). There, the supreme court had to decide if the trial court should have dismissed a petition admittedly filed out of time pursuant to the statutory word “shall” or whether the dismissal was discretionary under the applicable juvenile rule which then stated that the petition “may” be dismissed if untimely filed. The court held that the statute provided a juvenile with a substantive right to have the petition dismissed with prejudice and that the substantive statute superseded the procedural rule. Consistent with this holding the supreme court soon amended Florida Rule of Juvenile Procedure 8.110(e) to change the word “may” to “shall.”

Appellees point to State v. Golden, 350 So.2d 344 (Fla.1976), in support of their position. In that case, the trial judge had declared unconstitutional sections 39-03(7)(a) and (b) which concerned the period of time the state could detain a juvenile prior to a judicial hearing. The premise for the ruling was that these statutory provisions were in conflict with the rules of juvenile procedure. The statutes required an initial appearance within twenty-four hours and an adjudicatory hearing within fourteen days, whereas the rules called for an initial appearance within forty-eight hours and an adjudicatory hearing within thirty days. On appeal, the supreme court ruled that the length of time an individual could spend in confinement was substantive in nature and was within the prerogative of the legislature to the extent that it did not violate a constitutional provision. Acknowledging that it had no authority to adopt rules which were primarily substantive in nature, the court observed that it had adopted the time limits prescribed by the juvenile rules in issue “in order to comply with then-recognized constitutional procedural requirements.” 350 So.2d at 346-47. In reversing the trial court’s judgment, the court held that while the legislature could not lengthen the detention time period because of Sixth Amendment constitutional infirmities, it had the right to shorten the period.

The recent decision in P. L. H. v. Brownlee, 389 So.2d 649 (Fla. 5th DCA 1980), is squarely on point with the present case because it involved a delinquency petition filed forty-two days after intake at the time in which the statute permitted forty-five days and the rule only thirty. The court applied the reasoning of Golden in holding that when the supreme court promulgated the rule which required the state to file a petition within thirty days, it was prescribing a procedural implementation of a constitutional right. Thus, as in Golden, our sister court concluded that the legislature could shorten the time but could not lengthen it.

With all due respect, we believe that the court decided P. L. H. v. Brownlee on the wrong premise. The constitutional rights, which the juvenile rules referred to in Golden implemented, involved the prompt disposition of pretrial detention. The requirement to file the petition within thirty days after intake as contrasted to forty-five days does not involve a constitutional right. Absent legislation, a juvenile’s rights are ordinarily similar to those of an adult. See Johnson v. State, 314 So.2d 573 (Fla.1975). There is no constitutional limitation on the time for charging an adult by indictment or information except in those circumstances in which the defendant can prove he was prejudiced by the late filing. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); Suggs v. State, 358 So.2d 55 (Fla. 2d DCA 1978). Had the legislature not enacted a law specifically limiting the time for filing the petition for delinquency, there could be no such limitation on the time. Therefore, unlike the situation in Golden, the thirty day provision in Rule 8.110(e) did not constitute an implementation of a constitutional right. Hence, the question boils down simply to whether the designating of a specific time period for the filing of a delinquency petition after intake is substantive or procedural. If it is substantive, the statute controls, but if it is procedural, the rule controls since the Constitution of Florida gives our supreme court control over practice and procedure. State v. Garcia, 229 So.2d 236 (Fla.1969); Art. V, § 2(a), Fla.Const. We believe that it is substantive and thus hold that the trial court erred in following the thirty day provision of the rule.

The requirement that the state file a petition for delinquency within a specified time is akin to a statute of limitations. Statutes of limitation derive their authority from the legislature; they are not judicial in nature. Rausaw v. United States, 253 F.Supp. 528 (S.D.Tex.1966), aff’d, 376 F.2d 154 (5th Cir. 1967); Lake v. Lietch, 550 P.2d 935 (Okl.1976); Carney v. Smith, 222 Tenn. 472, 437 S.W.2d 246 (1969). Before our new constitution authorized the supreme court to establish the time periods for the taking of appeals, the courts held that the determination of the time within which appeals could be taken was a legislative rather than a judicial function. Ramagli Realty Co. v. Craver, 121 So.2d 648 (Fla.1960); Saffan v. County of Dade, 159 So.2d 102 (Fla. 3d DCA 1963), rev’d on other grounds, 173 So.2d 138 (Fla.1965). Moreover, as the state contends, the supreme court in S. R. v. State did hold, albeit in another context, that the very provision of the statute with which we are dealing was substantive rather than procedural.

We reverse the orders of dismissal and remand the cases for further proceedings.

OTT and CAMPBELL, JJ., concur.

      . Obviously, the supreme court could not have felt that its thirty day rule was intended to implement a constitutional right because it later followed the lead of the legislature in extending the time period to forty-five days.

      . Appellees do not contend that the state was ever in violation of the separate speedy trial provision contained in the juvenile rules. Fla. R.Juv.P. 8.180.


author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. Rudolph Stephen VUKOJEVICH, Appellee.
    No. 80-1050.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1980.
    Rehearing Denied Jan. 13, 1981.
    Jim Smith, Atty. Gen., Tallahassee and G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jack O. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   RYDER, Judge.

The State appeals from the discharge of Rudolph Stephen Vukojevich pursuant to Florida Rule of Criminal Procedure 3.191. We reverse.

The Charlotte County Sheriff’s Department arrested appellee on July 19, 1979. The State filed an indictment charging first degree murder on July 30, 1979. Appellee moved for a change of venue on October 17, 1979, and the court denied the motion subject to trying to select a Charlotte County jury. The court, after several delays charged to the State, set trial for January 2, 1980.

After voir dire had been initiated on January 2, and after several prospective jurors had been discharged for cause, the State withdrew its objection to venue change and the appellee renewed his motion for change of venue. The court granted the motion and reset the case for trial on January 21, 1980 but in Collier County. On January 11, appellee moved for discharge noting that 180 days had passed since his arrest. Ap-pellee also filed a motion for continuance on January 18. At hearing on January 21, the court denied the motion for discharge, finding that exceptional circumstances required a change of venue. Citing the need for further discovery, appellee then pursued his motion for continuance and agreed that the delay would be charged to him. The court set trial for June 10 in Hendry County. The record reflects that extensive discovery and motion practices followed.

During voir dire on June 10, appellee again moved for discharge. The court granted discharge, asserting that the State had had two weeks within which to try appellee after the change of venue, and was prevented from doing so only by a crowded trial docket. The court alternately observed that appellee should have been brought to trial within 90 days from the grant of his motion for continuance on January 21.

Rule of Criminal Procedure 3.191 requires that the State bring an accused to trial within 180 days of taking him into custody on a felony charge. The rule specifically provides that a person is deemed to have been brought to trial when trial commences by the swearing of a jury panel for voir dire examination. Fla.R.Crim.P. 3.191(a)(3). Since the voir dire examination of prospective jurors began on January 2, 1980 below, appellee was brought to trial within 180 days for the purpose of the rule. Moore v. State, 368 So.2d 1291 (Fla.1979); Stuart v. State, 360 So.2d 406 (Fla.1979); State ex rel Capibianco v. Green, 377 So.2d 979 (Fla. 1st DCA 1979).

We hold that the granting of ap-pellee’s motion for change of venue at that time to be equivalent to a mistrial, which gave the State 90 days within which to retry appellee. The court properly set trial for January 21, and properly denied the motion for discharge filed on January 16. Appellee then moved for continuance and this had the effect of eliminating the 90-day requirement. When the continuance was granted, the time limits set forth in the rule became inapplicable, and speedy trial requirements become determined in the light of individual circumstances as a matter of judicial discretion. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), quoting State ex rel Butler v. Cullen, 253 So.2d 861 (Fla.1971).

We hold that the trial beginning on June 10 was thus permitted by the rule, and appellee was not entitled to discharge. We note that appellee could still have demanded speedy trial within 60 days under the provision of Florida Rule of Criminal Procedure 3.191(a)(2), but failed to do so.

The order of discharge is reversed and the case remanded for further proceedings.

REVERSED and REMANDED.

SCHEB, C. J., and CAMPBELL, J., concur.