author: SCHOONOVER, Judge. CAMPBELL, Judge,

text:
    Bruce Allen BRADFORD, Appellant, v. STATE of Florida, Appellee.
    No. 83-837.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1984.
    Rehearing Denied Dec. 31, 1984.

      Jerry Hill, Public Defender, and W.C. McLain, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, Bruce Allen Bradford, appeals the judgments and sentences entered against him pursuant to a jury verdict finding him guilty of first-degree murder and arson. He received a life sentence for the first-degree murder charge and a ten-year consecutive sentence for the arson charge. We affirm.

Two of the appellant’s five points on appeal merit discussion. They are first, that the trial court erred in admitting bite-mark identification testimony and second, that the trial court erred in denying appellant’s motion for judgment of acquittal.

The victim in this case, Brenda Clark, died early on the morning of April 27,1982. She was beaten, strangled to death, and burned in her bed. Appellant was subsequently arrested and charged with the crimes.

The events leading up to the victim’s death took place on Sunday, April 26, 1982. The victim’s roommate, Sandra Grein, held a party at her apartment on Marco Island, Florida. The party began around noon. The victim was at the apartment most of the day, and at one point during the afternoon her boyfriend, Ray Newman, visited her at the apartment. Mr. Newman was a retired policeman and was married to Marsha Newman. He had a reputation for being jealous of the victim and had been engaged in an affair with her for approximately two months prior to the murder.

The appellant and his neighbors, Mr. and Mrs. A1 Vandermeulen, also attended the party. When the appellant began making preparations to use cocaine, the victim’s boyfriend became upset and left. Shortly thereafter, the victim, who appellant later referred to as a bitch, told appellant and A1 Vandermeulen to leave. They chose to remain after Sandra, the roommate, told them they could stay.

At approximately 11:30 p.m. the Vander-meulens left the party and returned to their home in Bonita Springs, Florida. Because appellant had been drinking all day and was to help Sandra move some furniture the next day, Sandra told him he was welcome to spend the night. Appellant slept on the couch in the living room. Lynn Morris, who was another guest, and her son, who had earlier been put to bed in Sandra’s room, also decided to spend the night at the apartment. Ms. Morris and her son slept in Sandra’s room.

At approximately 3:00 a.m., Sandra woke up to an apartment full of smoke. Upon leaving her bedroom, she noticed the apartment was in disarray. Before she could move throughout the apartment, she had to move a table and some chairs that had been overturned in the dining/living room. Appellant, who had been sleeping on the couch, was no longer in the apartment. After discovering the smoke was coming from the victim’s bedroom, Sandra woke Lynn Morris and her son and got them out of the apartment to the balcony. Sandra then threw a pail of water on the victim’s bed in order to extinguish the fire. She called the fire department at approximately 3:45 a.m.

When the firemen arrived, they found the victim lying on the bed with a scarf around her neck. Ordinarily, the scarf was tied to a mandolin hanging on the wall outside the door to the victim’s room. The victim had been strangled with the scarf. She died before being burned but after her lower jaw had been broken in two places by blunt trauma. A trace quantity of cocaine was found in her nasal passages, and a blood alcohol test revealed the equivalent of one-half of a drink in her blood system.

Although appellant did not testify during the trial, tape recordings of statements he had given to law enforcement officers after the crime were played for the jury. Appellant stated that he had been asleep on the couch when awakened by three men. The largest man grabbed him, struck him twice in the side, and moved him toward the door while telling him to leave. Appellant struck the man once in the mouth with his right hand. Appellant’s shirt was torn during the struggle. The second man pointed a gun at appellant’s face and motioned for him to leave. Appellant recognized the third man as the victim’s boyfriend whom he had seen at the apartment the afternoon before. Appellant left the apartment, drove the fifty-minute drive to Bonita Springs, woke up his neighbor, A1 Vander-meulen, and told him what had happened.

A1 Vandermeulen testified that appellant knocked on the window of his residence around 4:00 a.m. Mrs. Bradford, appellant’s wife, was asleep in the adjoining duplex and testified that she was awakened by this activity at approximately 3:05 a.m. She commented that she had just set the clocks to reflect the time change because of daylight savings time. She noticed that appellant’s mouth was bleeding when he entered the house.

Appellant requested that his neighbor return to Marco Island with him to be sure that the victim and her roommate were safe. The neighbor testified that he persuaded appellant not to do this. Instead, they called the apartment, but hung up when a man, who later was identified as a fireman, answered the telephone. Fire department records indicated that a phone call from an unidentified male was received at approximately 4:20 a.m.

The neighbor also testified that appellant’s shirt was torn, he had scrapes on his shoulder and side, and he was spitting prp-fusely. The next day he saw scrapes on appellant’s hands and observed that appellant appeared to be sore or stiff.

Ray Newman, the victim’s boyfriend, denied being jealous of the victim. He testified that he was at the apartment during the party and that he left when one of the men prepared to use cocaine. He testified that he saw the victim again around 4:00 p.m. in the parking lot where they spoke briefly. He denied that he had returned to the apartment later that night and testified that he had been home all evening. His wife gave evidence to support this testimony.

The physical evidence discovered in the victim’s bedroom failed to connect appellant to the crimes. One hair found under the body was similar to the head hair of the boyfriend. A blood splatter expert testified that the blood found on the wall was caused from blows to the victim’s head. Although there was evidence that the victim had engaged in sexual intercourse approximately twelve hours before her death, there was no evidence of rape or sexual molestation.

An arson investigator testified that an accelerant had been used to enhance the burning. A chemical specialist found no accelerant residue on the mattress, which was determined to be the point of origin of the fire, but testified that alcohol, such as that found in liquor, could be used as an accelerant. He testified further that if diluted by water, alcohol would not leave a residue. Evidence introduced at trial indicated that two one-half gallon whiskey bottles purchased during the course of the party were nearly empty after the murder. Appellant stated that both of the bottles • were almost empty when he went to sleep. Other witnesses, however, testified that the second bottle of liquor was almost full when the party ended.

A microanalyst testifying for the prosecution examined appellant’s shirt and expressed his opinion that four damaged areas of the shirt, two in the area of the collar and sleeve and two across the front, had been cut and not torn. A textile engineer testifying on behalf of the appellant agreed that two of the questioned areas had been cut, but that in his opinion, the two areas across the front of the shirt had been torn. The experts disagreed concerning whether the shirt could be torn by hand.

Dr. Richard Souviron, a board-certified forensic odontologist, testified as a dental expert for the prosecution. He was qualified as an expert in forensic odontology and bite-mark analysis. In his opinion, within a reasonable degree of dental certainty and/or probability, the victim’s teeth made the marks on the defendant’s hand. Photographs of the defendant’s hand and models of the victim’s teeth and jaws were introduced into evidence and were used by the doctor in explaining his testimony.

An orthodontist testified on behalf of the appellant that although he was not an expert in forensic odontology, in his opinion, the victim’s teeth had very common characteristics. Of sixty teeth molds of former patients he had examined, eighteen of those people could have made the marks. Four of the molds were introduced into evidence. A dermatologist testifying on appellant’s behalf examined appellant’s hand and opined that one of the marks noted by Dr. Souviron was a freckle and not an abrasion.

After lengthy deliberation, the jury found appellant guilty of first-degree murder and arson as charged. The appellant filed a timely notice of appeal.

Appellant’s first argument is that the trial court erred in admitting the bite-mark identification testimony of Dr. Souviron, the odontologist. Dr. Souviron’s testimony was similar to the bite-mark evidence he presented in the recent case of Bundy v. State, 455 So.2d 330 (Fla.1984). In Bundy, the supreme court approved this type of testimony, and we approve it in this case.

Dr. Souviron testified that the wounds on appellant’s hand were not “bite marks” because they had not been made by someone clamping his teeth down on the hand. He stated that the wounds were “abrasion patterns” that had definitely been caused by teeth. Dr. Souviron’s opinion was based upon the examination of photographs showing abrasion patterns upon appellant’s hand and the comparison of those patterns with models of the victim’s teeth. Using this comparison technique, the doctor was able to determine whether the wounds probably had been, could have been, or definitely had been made by the victim’s teeth. He testified to a reasonable degree of dental certainty or probability that the two abrasion patterns on the index finger of the appellant had been made by the victim’s upper right cuspid and the distal edge of the victim’s right lateral incisor.

The dissent asserts that “Dr. Sou-viron’s testimony is not inconsistent with innocence insofar as it is not a reasonably certain bite mark” and that “further inquiry was required to establish that diagnosis of abrasions is within bite mark analysis.” We note, however, that the marks on appellant’s hands were not thin scrapes or scratches, but were wounds in the form of “abrasion patterns.” The wounds were shaped sufficiently similar to teeth for the trial court to find the comparison techniques reliable enough to submit to the jury. The trial court has wide discretion concerning the admissibility of evidence, and in the absence of an abuse of discretion, its ruling regarding admissibility will not be disturbed. Jent v. State, 408 So.2d 1024 (Fla.1982).

The supreme court acknowledged in Bundy that the technique of bite-mark analysis does not result in identifications of absolute certainty, such as provided by fingerprint evidence. The probative value of Dr. Souviron’s testimony was for the trier of fact to determine. Bundy.

The jury saw the actual photographs of appellant’s hand, the model of the victim’s teeth, and the teeth models of four patients introduced by the appellant. They had the opportunity to hold the teeth models against the photographs and to judge for themselves whether each wound was merely a scrape, or whether it was an abrasion pattern that could have been made by the appellant’s teeth or by teeth belonging to one of the orthodontist’s patients. Thus, the jury had the actual evidence used by the experts in formulating their opinions. They were then able to compare those opinions with their own observations of the photographs and models. It was within the jury’s province to accept Dr. Souviron’s opinion and to reject the opinions rendered by appellant’s orthodontist and dermatologist. See Jent.

Appellant’s second argument is that the trial court erred in denying his motion for judgment of acquittal. We find there was substantial, competent evidence to support the jury’s verdict.

We are not allowed to retry a case or reweigh the conflicting evidence submitted to the jury. We must limit our concern to whether, after all conflicts in the evidence and all reasonable inferences derived therefrom have been resolved in favor of the verdict, there is substantial, competent evidence to support the verdict and judgment. Tibbs v. State, 397 So.2d 1120 (Fla. 1981), aff’d, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

Resolving all conflicts in favor of the verdicts, we find the record is sufficient to uphold the verdicts and judgments entered herein. The state presented evidence that the appellant had been in the apartment at or about the time the crimes had been committed, that the victim’s boyfriend had not been at the apartment during that period of time, and that the boyfriend had not committed the crimes. The state also presented scientific evidence that appellant had broken the victim’s jaw and that his-shirt had not been torn in a scuffle. This evidence, together with the other circumstantial evidence presented to the jury, supported the verdicts and judgments entered herein.

We realize that where the only proof of guilt is circumstantial, a conviction may not be sustained no matter how strongly the evidence may suggest guilt, unless the evidence is inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972, 976 n. 12 (Fla.1977); Mayo v. State, 71 So.2d 899 (Fla.1954). The accepted standard on review, however, is not whether the evidence failed to exclude every reasonable hypothesis but that of guilt, but whether there was substantial, competent evidence for a jury to so conclude. Rose v. State, 425 So.2d 521 (Fla.1983); see also, Tsavaris v. State, 414 So.2d 1087 (Fla. 2d DCA 1982). We also realize that in applying this standard, the version of events related by the defense must be believed if circumstances do not show that version to be false. McArthur at 976 n. 12; Mayo. Where there is other evidence legally sufficient to contradict his explanation, a defendant’s version of a homicide may be ignored by the jury. See Williams v. State, 437 So.2d 133 (Fla. 1983).

Defense counsel suggested that the evidence showed appellant had been forced out of the apartment and that someone else could have murdered the victim. The jury could properly have found otherwise. See Williams. The jury could have concluded that had the appellant been forcibly removed from the apartment during the course of a struggle in which a table and chairs were overturned, the commotion would have woken up the victim’s roommate and guests. They also could have concluded that none of the victim’s blood was found on appellant’s clothes because he took them off before entering the victim’s bedroom. Given the expert testimony that at least two of the damaged areas of appellant’s shirt had been cut and not torn, the testimony of Mrs. Newman that her husband, the victim’s boyfriend, had not left their home, and expert testimony that the victim’s teeth made the marks on appellant’s hands, the jury could have found that appellant lied about his struggle with the three men.

We therefore conclude there was sufficient evidence presented to the jury from which they could properly determine that the hypothesis of innocence advanced by the appellant, i.e., that Brenda Clark was killed by someone other than appellant, was not reasonable. See Ferguson v. State, 417 So.2d 631 (Fla.1983); Newberry v. State, 442 So.2d 334 (Fla. 5th DCA 1983). While it was in the province of the jury to believe appellant’s version of the events, we cannot hold that the jury was precluded as a matter of law from finding appellant guilty of first-degree murder and arson.

Accordingly, we hold that the bite-mark testimony was properly admitted and that substantial, competent evidence exists in the record to support the verdict and judgment of the trial court.

AFFIRMED.

GRIMES, A.C.J., concurs.

CAMPBELL, J., dissents with opinion.

CAMPBELL, Judge,

dissenting.

Because I conclude that the nature of the evidence relied on to support the conviction in this case is solely circumstantial, I find it necessary to repeat most of the salient facts in the record, which are also set forth in the majority opinion, to demonstrate that the evidence is not inconsistent with any reasonable hypothesis of innocence. I also conclude that many of the facts, as stated by the majority, take on additional nuances when coupled with other facts not included or stressed within the majority opinion. I, therefore, request indulgence by the readers of this case in the length of this dissent caused by a repetition of so much of the facts. In my opinion, it is necessary to an understanding of my dissent that the critical facts be viewed in sequence and in their entirety.

The victim, Brenda Clark, was an unmarried, twenty-six-year-old singer and waitress. On the morning of April 27, 1982, she was beaten, strangled to death, then burned in her bed.

Appellant was charged with the crime approximately three days later. Only the events of April 26, 1982, which was the day appellant met the victim, and the events of the morning of the crime, are presented here.

On Sunday morning, April 26, 1982, appellant was visiting his neighbors, Al and Kim Vandermeulen, in Bonita Springs. He had recently been introduced to a friend of theirs, Sandra Grein. Sandra Grein invited appellant and the Vandermeulens to a party at her apartment on Marco Island that afternoon. Sandra Grein shared that apartment with the victim under an unclear financial arrangement between themselves and an old boyfriend of the victim, A1 Douglas.

The party began around noon when appellant, Sandra Grein, and A1 Vandermeu-len reached the apartment on Marco Island. They had a few drinks and used some cocaine. The cocaine had been purchased by appellant.

The evidence is conflicting as to whether the victim was in the apartment when they arrived. It is clear, however, that sometime early in the afternoon, Ray Newman came to the apartment and spoke with the victim.

Ray Newman was the victim’s boyfriend. He is a retired New York State policeman, who lived about five minutes from the victim’s apartment. He is in his mid-fifties and married to Marsha Newman. He had been having an affair with the victim for approximately two months when the murder occurred. He had a reputation of being jealous of the victim.

At the party, Ray Newman had a private conversation with the victim. When appellant prepared to use some cocaine, Ray Newman left in a mood which was variously described as “upset,” “angry,” and “disgusted.” Later, he called the victim on the telephone. Sometime shortly thereafter, an argument arose between the victim and Sandra Grein. At about the same time, the victim told appellant and the other guests to leave. They did not leave, however, because Sandra Grein told them to stay. In doing so, she told the victim that inasmuch as she, Sandra, also paid rent, she had the right to say who would stay at the apartment.

By 6 p.m., Kim Vandermeulen and her son, and Lynn Morris and her son, had also arrived at the party. The six adults drank, talked and played a card game called “Euchre.” There is no evidence that anything more than casual conversation occurred between appellant and the victim. Appellant had not known the victim before meeting her that afternoon at her apartment.

Around 11:30 p.m., the Vandermeulens left the party. According to Sandra Grein’s testimony, the victim then sang a few songs, played cards for a while, and went to bed around midnight. Lynn Morris, who also spent the night at the apartment, testified, however, that the victim went to bed around 1:30 a.m. Lynn Morris testified that she went to bed in Sandra Grein’s bedroom, where her young son was already asleep, at approximately 1:45 a.m., which she said was about fifteen minutes after the victim went to bed. Sandra Grein, however, testified that Lynn Morris went to bed between 12:30 a.m. and 1:00 a.m. Because they had been drinking all day, and because he was to move a waterbed for her the next morning, Sandra Grein told appellant that he was welcome to spend the night. One reason for appellant going to the apartment in the first place was for him to move the waterbed in his truck. (The bed had not been moved by the time the party ended and everyone was ready for bed.) Sandra Grein made up the fold-out couch in the living room for appellant. She testified that he asked her to sleep with him, but she refused and went to bed in her own bedroom. Appellant lay on the couch and watched television before he fell asleep.

Sandra Grein testified that she woke up around 3 a.m. because the apartment was full of smoke. She got up, and as she left her bedroom, she found the apartment in disarray. She had to move an overturned table and chairs in the dining area of the living/dining room before she could get in the room. Appellant was not in the apartment. She saw that the smoke was coming from the victim’s bedroom. She went back into her bedroom to awaken Lynn Morris and her son and get them out to the balcony. She looked into the victim’s bedroom and saw that the bed was on fire. She threw a pail of water on the bed and called the fire department around 3:45 a.m.

When the firemen arrived, they found the victim lying on the bed with a scarf around her neck. The bed was the point of origin of the fire. According to the pathologist’s testimony, the victim died of strangulation from the scarf around her neck before she was burned and after her lower jaw had been broken in two places, by blunt trauma. No witness attempts to establish the time of death. Neither Sandra nor Lynn had heard anything before being awakened by smoke from the fire.

The scarf which was used to kill the victim was usually tied on a mandolin which hung on the wall just outside the door to the victim’s room. It had belonged to or been given to her by a former boyfriend who had died unexpectedly a few months before. The former boyfriend’s death was not explained in the record.

Although appellant did not testify at trial, tape recordings of the statements he gave to the police shortly after the crime occurred were played for the jury. In those statements, appellant said that he was asleep on the couch when he was awakened by three men. A large man grabbed him and struck him twice in the side and moved him toward the door, telling him to leave. Appellant struck the man once in the mouth with his right hand. The second man pointed a gun at appellant’s face and motioned for him to leave. Appellant, still wearing his blue jeans and T-shirt from the day and evening before, picked up his shoes by the door and left. He said that his shirt was torn in the scuffle. Appellant recognized the third man as the victim’s boyfriend, Ray Newman, whom he had only seen one time before when Newman visited the victim the previous afternoon. Appellant drove directly to Bonita Springs and woke up his neighbor, Al Vandermeulen, and told him that three men had driven him from the girls’ apartment at gunpoint. Appellant tried to persuade Al Vandermeulen to drive back with him to the apartment to see if the girls were all right. Al Vandermeulen persuaded appellant not to do so, but he did telephone the apartment. The firefighters’ records indicate that a phone call from an unidentified male was received at approximately 4:20 a.m. It is important to note that while the implication may be made, the fact is that in appellant’s taped statement he never accused Ray Newman and the other two men of the murder of Brenda Clark.

Al Vandermeulen testified that appellant knocked on his window around 4 a.m. Appellant’s wife, asleep in the adjoining duplex, also woke up when appellant was talking to Al. She looked at the digital clock by her bed and testified she observed the time as 3:05 a.m. She commented that she had just set the clocks to reflect the time change because of daylight savings time. When appellant came into the house, she noticed that his mouth was bleeding.

Al Vandermeulen testified that it was about a fifty-minute drive from the victim’s apartment on Marco Island to their duplex in Bonita Springs. He stated that appellant told him he had just been beaten up by three guys who grabbed him by the hair and pulled him off the couch, put a gun to his head, and told him to get out of the apartment. He verified that appellant wanted to go back to see if the victim and Sandra Grein were safe. A1 also said he called the apartment after 4 a.m., but hung up shortly after a man, who later turned out to be a fireman, answered the telephone.

Ray Newman also testified at trial. He testified that he saw the victim around noon at her apartment on April 26, 1982, and that two men he did not know (Vander-meulen and appellant) were present. He left the party when one of the men prepared to use some cocaine. He saw the victim again around 4 p.m. in a parking lot on Marco Island where they spoke briefly. He denied being jealous of the victim. He went home around 6 p.m. and watched television with his wife until 11 p.m., when she went to bed. He testified he watched the news and a taped tennis match in which John McEnroe played. He said he turned the television off at 12:45 a.m., before the match was finished.

Marsha Newman, Ray Newman’s wife, corroborated his story. She testified that she did not awaken after she went to sleep and could not testify at what time her husband went to bed, but she did not believe he could have left the house without her knowledge because the dog would have barked and awakened her.

The deposition of a representative of ESPN, Entertainment and Sports Programming Network, was admitted into evidence. He said that a McEnroe/Lendl tennis match on April 26, 1982, was a live broadcast from 9 p.m. until 12:28 a.m. There was a re-broadcast of the match later that same night, from 3:38 a.m. until 6:48 a.m., on April 27, 1982.

There was no physical evidence discovered in the victim’s bedroom linking appellant with the crime. One hair found under the body was similar to the head hair of Ray Newman. There was blood splattered on the walls. A blood-splatter expert testified that the splatters were caused from blows to the victim’s head. There was no evidence of rape or sexual molestation, although there was evidence that the victim had engaged in sexual intercourse approximately twelve hours before her death.

The clothes appellant wore that night were also examined by three experts. The FBI serology expert testified that a type A human blood stain on his shirt was not the victim’s blood because she was a type B. It could have been made by appellant’s own blood since he was a type A. An FBI microanalyst concluded that damage to the shirt was caused by cuts, not tears. The testimony of a textile engineer presented by the defense, indicated that two of the damaged areas in question on the shirt were cut, but concluded that the other two damaged areas were torn. The experts disagreed as to whether or not the shirt could be torn by hand.

It is of note, because the state emphasizes discrepancies in various time sequences, that no witness establishes when the fire started. An arson expert testified that the fire burned forty-five minutes to an hour, but does not, nor does any other witness, put that forty-five minutes to an hour in any particular time frame.

Over defense objections, a forensic dentist, Dr. Souviron, testified for the prosecution. His testimony will be referred to as “bite mark” testimony at times, although he examined scrapes or scratches on appellant’s hand, rather than an actual bite mark that leaves a clear impression of the configuration of the teeth where teeth have been embedded in flesh. I could not more strongly disagree with the majority’s conclusion that the “wounds were shaped sufficiently similar to teeth ... to submit to the jury.”

Dr. Souviron examined enlarged, life-size photographs of an injury on appellant’s knuckle. Appellant had a “drag mark” scrape or scratch on the knuckle of his index finger of his right hand. He had another small mark over the knuckle of his second finger. The second mark was difficult to see without a magnifying glass. Dr. Souviron compared the enlarged photograph of appellant’s injury with a mold of the victim’s teeth. He never examined appellant’s hand. He made the comparisons with the enlarged photograph of appellant’s hand in an outstretched position. He never used a photograph of appellant’s hand in a fist. He concluded that the wounds on appellant’s hand were made by teeth. He said that the upper right cuspid made the large drag pattern on the index knuckle, and that the second mark was made by the back edge of the lateral incisor. He emphasized the second mark as being important. He stated that the wounds were consistent with the victim’s head being on a pillow when the blow which caused the teeth marks was inflicted. Dr. Souviron ultimately concluded that the victim’s teeth, in a reflex action from the blows to her jaw, made the mark on appellant’s hand. He could not, however, exclude, except by probabilities, the marks having been made by other men and women with similarly shaped teeth.

A dermatologist testified for the defense. She examined appellant’s hand and testified that the second mark noted by Dr. Souviron was a freckle, not a scrape. Her testimony was not refuted, except by Dr. Souviron’s opinion as derived from examining the photographs of appellant’s hand.

The defense also presented the testimony of an orthodontist who testified that he could not even identify the mark on appellant’s hand as a tooth mark, much less as having been made by the victim’s teeth. He also testified that the victim’s teeth had very common characteristics. Of sixty molds selected from the orthodontist’s former patients, eighteen people could have made the marks, according to the orthodontist.

Based on the evidence described above, the jury found appellant guilty as charged. They did so after first announcing they were deadlocked and then receiving the standard deadlocked jury instruction. They deliberated a total of ten hours and fourteen minutes.

I can understand their reluctance. The state convinced them to convict based on an assumption that appellant got up from the couch in the living room where he was sleeping, slipped into the victim’s bedroom, hit her at least twice while she was asleep, breaking her jaw in two places. From the questioning of the officers who took appellant’s statement which was introduced in evidence, I gather it was their theory that appellant went into the victim’s bedroom to make sexual advances that were rejected, thereby sending him into a rage that caused the beating, murder and arson. There is no evidence to support any sexual advances toward the victim by appellant. I note that before the party ended, the evidence shows that any advances made were directed toward Sandra Grein, not the victim. There is no evidence that the victim was sexually molested during the crime. The state’s apparent theory of appellant’s motivation, therefore, is not supported.

While motive is not an essential element of homicide, it is of increased importance when the proof of a crime is circumstantial, as in this case. See Daniels v. State, 108 So.2d 755 (Fla.1959). Here, rather than supporting the state’s theory of motivation, the evidence disproves the theory.

Dr. Souviron and the state’s blood splatter expert opined that the blows to the victim’s head, which broke her jaw in two places, occurred when her head was resting on her pillow on her bed. The evidence was that these blows occurred prior to her death by strangulation with the scarf. The blood splatter expert testified the blows that broke the victim’s jaw and caused blood to splatter on the bed, curtains, bedside table and walls, occurred while her “head was in a — the pillow position or a sleeping position on the pillow where you would normally sleep.” The state’s evidence then shows not that appellant went in and made sexual advances which the victim rejected, but that whoever went in hit her while she was asleep on her pillow. As a matter of fact, the assistant state attorney, in his closing argument, twice makes that point. First, he argued:

Bruce Bradford, the State’s position is, the State’s evidence proves, that what happened was that Bruce Bradford slipped into that bedroom, beat her severely, broke her jaw, beat her, went out. He saw where the bandana was. It was outside of the girl’s bedroom on a mandolin, pulled that down, went back in. You heard from Dr. Schmid how he tied it around her and twisted that like a tourniquet around the neck killing her and then he went out and got that bottle of booze we just talked about, poured it on the bed and lit it.

Later, he continued that same argument by telling the jury:

You heard from an expert in the field, and he told you that the marks on the victim’s hand are consistent — excuse me, the marks on the defendant’s hands are consistent with those made by the victim. Damaging evidence. There’s only one way these teeth marks were made on his hand and that’s when he slipped in that bedroom, when she was lying there, nude, hit her several times, you heard, on the pillow, which was supported by Dr. Souviron’s testimony; through the blood splatter expert, Jack Gant, the position of the body; boom, boom, hit her two or three times, at least, then panicked. What’s going to happen when everybody else finds out?
He goes out. This is where the premeditation comes in. He has plenty of time to think about it, think of his plan. He goes out, saw where the mandolin was outside the victim’s bedroom, pulls that scarf off the mandolin, ties it around her neck and strangles her to death and sets • the place on fire, turns the table over, leaving those other chairs there so those other girls wouldn’t be able to testify that he was the last one there.

The first point addressed on appeal is appellant’s claim that the evidence is insufficient. For purposes of analyzing the sufficiency of the evidence, I assume, at this point, that the testimony of Dr. Souviron was admissible.

The standard of review regarding circumstantial evidence is that “no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” McArthur v. State, 351 So.2d 972, 976 n. 12 (Fla.1977).

The evidence indicates that appellant was in the apartment before the crime occurred and was absent from the apartment when the crime was discovered. The victim’s blood was splattered across the bedroom where the crime occurred, yet none of the victim’s blood was on the clothing appellant wore that night. There was no indication that appellant attempted to clean those clothes before turning them over to the police for examination. None of the hair found in the room where the crime occurred could have belonged to appellant. In short, none of this circumstantial evidence connects appellant with the crime. The evidence is entirely consistent with reasonable hypotheses of appellant’s innocence. Suspicion is directed toward appellant mainly because of his absence from the scene at the time Sandra Grein awoke, and because of some variances in several witnesses’ testimony regarding time sequences. Thus, none of this circumstantial evidence forms a sufficient basis upon which the conviction could be sustained.

The only remaining evidence is Dr. Souvi-ron’s testimony wherein he attempts to positively identify appellant as the murderer through a reasonable probability that the victim’s tooth made the mark on appellant’s hand. Reviewing this testimony as if it were properly admitted evidence, it cannot support the conviction.

Where there is positive identification through fingerprint evidence, under the standard of review for circumstantial evidence, the state must show that the fingerprints could only have been placed at the scene during the commission of the crime. Jaramillo v. State, 417 So.2d 257 ((Fla.1982).

Here, not only did the state fail to show that the mark could not have been made at some other time in some other way, but even if the mark was made by a tooth, Dr. Souviron could not attempt to remove all doubt as to who made the mark on appellant’s hand. Dr. Souviron testified that his opinion was that the victim’s incisor teeth made the marks on appellant’s hand “to a reasonable degree of dental probability.” On cross-examination, Dr. Souviron was read a portion of his deposition. He acknowledged that the statements made in the deposition were correct. He was asked, “It could have been (the victim’s teeth which made the marks) but you’re not saying that it certainly was?” He answered, “I’m saying that it could have been to a high degree of probability.” These statements were presented again on recross examination and approved a second time by Dr. Souviron. On redirect, Dr. Souviron said, “I believe I stated that the marks were consistent to a reasonable degree of dental certainty.” The next question was, “Of dental certainty or probability?” Dr. Souviron answered, “Well, either word, obviously — well, both of you are trying to get at, I think, the fact that this is not a reasonably certain bite mark. I am not positive to the exclusion of everyone in the world that ... the victim’s teeth made the marks.”

Thus, even if the jury chose to fully accept Dr. Souviron’s testimony, that testimony did not positively establish appellant’s guilt; there was only a probability according to Dr. Souviron.

In a criminal proceeding, the burden of proof is on the state to establish beyond and to the exclusion of every reasonable doubt, each element of the criminal offense charged. Rivers v. State, 140 Fla. 487, 192 So. 190 (1939); Bradshaw v. State, 353 So.2d 188 (Fla. 2d DCA 1977). Where the sole proof is based on a probability, as in the testimony of Dr. Souviron in this case, it appears that a reasonable doubt of appellant’s guilt remains. “The law does not deal in probabilities, but in proof of guilt beyond a reasonable doubt.” A.R. v. State, 393 So.2d 1174, 1175 (Fla. 3d DCA 1981). Evidence which provides a possibility of guilt does not provide proof beyond a reasonable doubt. Davis v. State, 90 So.2d 629 (Fla.1956).

Evidence is legally insufficient if it does not prove the defendant’s guilt beyond a reasonable doubt. Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd,, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The circumstantial evidence in this case, though it may be suspicious, is not inconsistent with innocence. Even Dr. Souviron’s testimony is not inconsistent with innocence insofar as it is not a reasonably certain bite mark. Furthermore, the testimony of Dr. Souviron, such as it is, does not remove all reasonable doubt of appellant’s guilt. That testimony, reduced to its probabilities, becomes merely another circumstance that, added to the other circumstantial evidence, is not sufficient to remove all hypotheses of innocence. The evidence in this case even conceding the admissibility of Dr. Souviron’s testimony is, therefore, legally insufficient.

Finally, it is necessary to address the issue of the admissibility of the “bite mark” testimony and appellant’s contention that Dr. Souviron’s testimony should have been excluded from evidence.

I am aware of no other case where “scrape marks” have been used as in this case, as opposed to “bite marks” such as existed in Bundy v. State, 455 So.2d 330 (Fla.1984). In Bundy, the use of bite mark evidence was approved. In evidence in that case, were indentations on the body of one of the victims that could “be clearly identified as human bite marks.” Bundy at 258. The Florida Supreme Court held that the trial court properly found that “the science of odontology, which is based on the discovery that characteristics of human dentition are highly unique, is generally recognized by scientists in the relevant fields and herefore is an acceptable foundation for the admissibility of expert opinions into evidence.” Bundy at 264.

Dentition is “[t]he character of the teeth collectively as determined by their form and arrangement.” Websters New International Dictionary 700 (2d ed. 1957). Here, there is not an identifiable human bite mark showing the configuration of the teeth as in Bundy; there is merely a scrape or “an abrasion,” according to Dr. Souviron. He also states that this [scrape] “is not a reasonably certain bite mark.”

While a proper predicate was clearly established to show that Dr. Souviron is an expert in the field of odontology, or bite mark analysis, further inquiry was required to establish that diagnosis of abrasions is within the ambit of bite mark analysis. See, e.g., Fay v. Mincey, 454 So.2d 587 (Fla. 2d DCA 1984). Before the opinion testimony of an expert may be admitted into evidence, and that evidence and its deficiencies weighed by the jury, the court must determine that the witness is an expert for the purpose for which he is testifying. Here, there was no predicate showing that Dr. Souviron was an expert for the purpose of analyzing the scrape on appellant’s hand and, therefore, his testimony was improperly admitted.

In addition, it is necessary to discuss the problems inherent in testimony which seeks to provide positive identification evidence in terms of reasonable probability.

Generally, the opinion of medical experts regarding the cause of an injury or death need only be in terms of reasonable medical certainty to be admissible. Holland v. State, 359 So.2d 28 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1124 (Fla.1979). See also, e.g., Vaillancourt v. State, 288 So.2d 216 (Fla.1974). Here, however, the medical or dental testimony is offered primarily to provide positive identification of an individual. It is not clear that the same standard of medical probability should be used to allow identification testimony into evidence.

Other types of evidence connecting a defendant to a crime in terms of reasonable probability are clearly admissible. For example, in Jent v. State, 408 So.2d 1024, 1029 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982), hair analysis evidence was admitted although it was presented in terms of probability. There, the technician could not positively identify the hair as being the defendant’s, but it was “highly likely” that one of the hairs found at the scene of the crime belonged to the defendant. However, the testimony presented in Jent and the testimony in this case, is distinguishable. In Jent, the technician was, without a doubt, examining a piece or strand of human hair. From that examination, the technician established the probability that one of the hairs was the defendant’s. Here, Dr. Sou-viron alone determined that the mark on appellant’s hand is a reasonably certain human tooth mark. Based on that probability, he determines that there is a reasonable probability that the victim’s tooth caused the mark. This type of stacking of probabilities is highly unreliable, especially considering the complete absence of testimony that it is a scientifically acceptable procedure to identify a person by way of a scrape mark of this nature. This testimony of “positive” identification through probabilities, provided by an expert with the qualifications of Dr. Souviron, was extremely prejudicial. Accordingly, due to its lack of reliability and its extremely prejudicial effect, the testimony of Dr. Souviron should have been excluded.

Because the evidence is insufficient, even if the admission of Dr. Souviron’s testimony is conceded, I would reverse the trial court’s denial of appellant’s motion for judgment of acquittal, remand for entry of such a judgment and direct that appellant be discharged.

      . This is pointed out merely to illustrate that all of the witnesses who testified as to time sequences in this case invariably, and seemingly without exception, have considerable discrepancies in what they believe is the time a certain event occurred. Since, as it later appears, the appellant’s inability to accurately relate times and events focuses suspicion upon him, I therefore illustrate the other witnesses' problems with time elements to show that such discrepancies can arise out of complete innocence, as well as be indicative of suspicious conduct. Therefore, because appellant might be inaccurate in regard to the time of the occurrence of events, this may be overemphasized as a circumstance pointing to his guilt.

      . The majority places emphasis on the fact that because of the discrepancies in appellant’s testimony as it relates to other evidence, the jury could therefore conclude he was not telling the truth about those matters in which he was inconsistent. My concern is that even though he may have been inconsistent and even perhaps untruthful, that alone is not evidence he committed this brutal murder for which no evidence of any motive whatsoever exists. While evidence of motive for a homicide is not necessary, where the evidence is not strong enough to establish beyond all doubt that the accused is the guilty person, and where proof of the crime is circumstantial, "motive may become both important and potential.” Daniels v. State, 108 So.2d 755 (Fla.1959).


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    Stephen T. BARGE, Appellant, v. Rosa SIMETON, Appellee.
    No. 84-676.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1984.
    Rehearing Denied Jan. 14, 1985.
    James E. Copeland of the Law Offices of Roger C. Hurd, P.A., North Palm Beach, for appellant.
    Charles Musgrove and Dan Hayes, West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant Barge sued appellee Simeton in county court for damages for unpaid work performed by Barge pursuant to a contract to improve Simeton’s real property. Simeton counterclaimed against Barge for damages for defective work and for filing a fraudulent lien on Simeton’s property and demanded a jury trial. The. cause was transferred to the circuit court where, pursuant to Simeton’s motion, the court set the cause for trial by jury on July 11, 1983. Prior to trial Barge’s lawyer withdrew. Thereafter, Simeton filed a motion to remove the case from the jury trial docket and try it non-jury because 1) upon preparation for trial counsel determined the case could “more appropriately” be tried without a jury, and 2) counsel had a conflict in that he was scheduled to try another case in Fort Lauderdale during the same trial period. The cause was tried non-jury on February 23, 1984, resulting in a judgment against Barge and for Simeton on Barge’s complaint and for Simeton on her counterclaim in the amount of $300 compensatory damages, $500 punitive damages, attorney’s fees of $1500, and costs of . $121.29.

Barge obtained new counsel and filed a motion to set aside “default and default final judgment” together with an affidavit stating he had not received either the motion to try the case non-jury or the notice of non-jury trial. Finally, without awaiting a decision on the aforesaid motion Barge perfected this appeal.

The thrust of Simeton’s defense of the trial court’s action is Barge’s lack of diligence, his failure to attend the hearing on motion to remove the case from the jury docket or the trial of the case. Barge, of course, says he did not receive notice of either event. Be that as it may, we believe that issue is irrelevant. Whether Barge received notice or not, he had a right to a jury trial. To paraphrase the First District Court of Appeal in Saunders v. Saunders, 346 So.2d 1057 (Fla. 1st DCA 1977), Barge was entitled to place his confidence in the jury system, being confident that a jury would reasonably assess the damages in the case. The mere fact Barge failed to show up to pursue his claim does not mean he was not entitled to a jury determination of Simeton’s claim for damages on her counterclaim.

Florida Rule of Civil Procedure 1.430 provides that the right to trial by jury as declared in the constitution or statute shall be preserved inviolate and that a demand therefor may not be withdrawn without the consent of the parties. Regardless of who makes the demand, once made it cannot be withdrawn without the consent of all parties. Jayre Inc. v. Wachovia Bank and Trust Co., 420 So.2d 937 (Fla.3d DCA 1982). Thus, it matters not that Simeton rather than Barge demanded the jury. Furthermore, even if Barge had not filed any pleadings in response to Sime-ton’s counterclaim and allowed a default to be taken against him and did not show up for trial, he was still entitled to a jury trial on damages. Ansel v. Kizer, 428 So.2d 671 (Fla. 2d DCA 1982). To constitute a waiver of the existing demand for jury trial the Supreme Court of Florida has held there must be affirmative action on the part of a party. Barth v. Florida State Constructors, Inc., 327 So.2d 13 (Fla.1976). The Fifth District Court of Appeal, in Laing v. Fidelity Broadcasting Corporation, 436 So.2d 959 (Fla. 5th DCA 1983), held that affirmative action must be a written stipulation or oral stipulation in open court.

Since there was no such affirmative action by Barge indicating a waiver of the demand for jury trial, the case should not have been tried non-jury. Accordingly, the judgment appealed from is reversed and the cause is remanded for a new trial before a jury on the sole question of the amount of compensatory and punitive damages Simeton is entitled to recover on her counterclaim.

REVERSED AND REMANDED, with directions.

DELL and BARKETT, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    Jean GRASLAND and Jeanine Grasland, Appellants, v. TAYLOR WOODROW HOMES LIMITED, a corporation organized under the laws of the United Kingdom authorized to do business in the State of Florida, Appellee.
    No. 84-1189.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1984.

      Philip S. Prosch of Lee & Surfus, Sarasota, for appellants.
    Theodore C. Eastmoore of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for appellee.
   ON REHEARING OF ORDER OF DISMISSAL

GRIMES, Acting Chief Judge.

On December 6,1983, the court entered a final judgment on the pleadings in favor of the appellee. The judgment noted that the pleadings affirmatively showed that there was an absence of a justiciable issue of either law or fact. The court reserved jurisdiction to assess court costs and attorney’s fees against the appellants. The appellants did not seek to appeal this judgment. Thereafter, on May 2, 1984, the court entered a final judgment for appellee for $1,500 attorney’s fees under section 57.105, Florida Statutes (1983).

Appellants filed a timely appeal from the May 2, 1984, judgment. In their brief, appellants’ arguments were directed only to the propriety of the judgment on the pleadings. ' Appellants made no attack upon the award of attorney’s fees. Appel-lee then moved to dismiss the appeal asserting that appellants were precluded from contesting matters encompassed by the December 6, 1983, judgment because they had not appealed from that judgment. Appellants responded that the December 6, 1983, judgment was interlocutory since the court had reserved jurisdiction to award attorney’s fees. Therefore, they argued that they had the right to raise all issues in their appeal from the May 2, 1984 judgment.

Appellants rely primarily upon Florida Farm Bureau Casualty Insurance Co. v. Fichera, 385 So.2d 183 (Fla. 4th DCA 1980), which seems to hold that a final judgment which reserves the right to set attorney’s fees is a nonfinal order and cannot be the subject of a plenary appeal. If so, the case would appear to conflict with that court’s earlier opinion in Insurance Company of North America v. Welch, 266 So.2d 164 (Fla. 4th DCA 1972), cert. denied, 273 So.2d 77 (Fla.1973), which held that a judgment reserving only the right to award attorney’s fees was a final judgment. In Welch the court ruled that in an appeal from the later award of attorney’s fees it could not reach the substantive issues decided by the earlier final judgment. Other courts have implicitly accepted the view expressed by Welch when they have considered whether a court which has reserved in its judgment jurisdiction to award attorney’s fees may proceed to make the award while an appeal from the judgment is still pending. See, e.g., Ruby Mountain Construction & Development Corp. v. Raymond, 409 So.2d 525 (Pla. 5th DCA 1982); Bailey v. Bailey, 392 So.2d 49 (Fla. 3d DCA 1981); Wilson Realty, Inc. v. David, 369 So.2d 75 (Fla.2d DCA 1979). Cf Galbut v. Garfinkl, 340 So.2d 470 (Fla. 1976) (upholding the entry of a partial judgment of dissolution from which a plenary appeal may be taken).

We need not enter these troubled waters to decide the instant case. Ordinarily, a claim for attorney’s fees must be specifically pled and is considered a substantive part of the recovery. State ex rel. Royal Insurance Co. v. Barrs, 87 Fla. 168, 99 So. 668 (1924). Attorney’s .fees are properly costs only when authorized by contract or statute. Giachetti v. Johnson, 308 So.2d 143 (Fla.2d DCA 1975). In Allen v. Estate of Dutton, 384 So.2d 171 (Fla.5th DCA), petition for review denied, 392 So.2d 1373 (Fla.1980), the court held that attorney’s fees may be awarded under section 57.105, Florida Statutes, as part of costs. The court reasoned that by incorporating this statute into chapter 57, which deals with “court costs,” the legislature intended to treat such an award as costs. This ruling is consistent with the reality that a claim for attorney’s fees under this statute is seldom pled and cannot be determined until the court examines the merits of the losing party’s position. We, therefore, adopt the view of our sister court and hold that attorney’s fees awarded under section 57.105 should be treated as costs.

A reservation of jurisdiction to award costs does not affect the finality of a judgment. See Roberts v. Askew, 260 So.2d 492 (Fla.1972). Therefore, the appellants could have appealed the December 6, 1983, judgment. By failing to do so, they cannot now raise matters concluded by that judgment in their appeal from the May 2, 1984, judgment. We grant appellee’s motion and dismiss the appeal.

SCHEB and SCHOONOVER, JJ., concur.


author: SCHEB, Acting Chief Judge.

text:
    Richard J. LOVELESS, Petitioner, v. Fred L. BRYSON, Circuit Judge, Sixth Judicial Circuit, Respondent.
    No. 84-1362.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1984.

      Robert E. Jagger, Public Defender, Clearwater, and Chris Thom, Asst. Public Defender, Clearwater, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for respondent.
   SCHEB, Acting Chief Judge.

On September, 1, 1981, petitioner was sentenced under the Youthful Offender Act. Pursuant to section 958.05(2), Florida Statutes (1981), he was given a sentence of four years imprisonment to be followed by two years service in a community control program. While serving the community control portion of his commitment, an affidavit of violation of probation was filed on April 3,1984, and a warrant issued alleging that petitioner violated his probation. On June 1 petitioner moved to dismiss the affidavit and warrant on the ground that the circuit court lacked subject matter jurisdiction. The court denied the motion, whereupon petitioner filed his petition for writ of prohibition.

Our analysis of this case must begin with the statute that petitioner was sentenced under. Section 958.05(2),. Florida Statutes (1981) provides:

The court may commit the youthful offender to the custody of the department for a period not to exceed 6 years. The sentence of the court shall specify a period of not more than the first 4 years to be served by imprisonment and a period of not more than 2 years to be served in a community control program. The defendant shall serve the sentence of the court unless sooner released as provided by law.

Petitioner suggests that once he has been sentenced under this statute, the terms of his release are then governed by sections 958.10(1) and (2), which state:

(1) A youthful offender, when placed in a community control program upon release from imprisonment by parole or by accumulation of statutory gain-time allowances, shall be supervised in the program for a period not to exceed either 2 years or the balance of the maximum term to which he was sentenced, whichever is less; and the release shall be under such conditions as may be set by written order of the Parole and Probation Commission.
(2) During the period spent in the community control program, the youthful offender shall perform the terms and conditions of his release agreement and shall be subject to revocation or modification of the release agreement as if he were on parole. The provisions of s. 945.30 shall apply to youthful offenders released on parole or by accumulation of statutory gain-time allowances, except those youthful offenders within or without the state under an interstate compact adopted pursuant to chapter 949.

Petitioner argues that these sections subject him to revocation or modification “as if he were on parole.” Thus, he concludes that the Parole and Probation Commission, not the court, has jurisdiction over him. He relies on this court’s recent decision in Lollis v. State, 449 So.2d 430 (Fla. 2d DCA 1984), which in turn relied on the Fourth District’s opinion in Clem v. State, No. 81-2243 (Fla. 4th DCA August 31, 1983) [Clem I]. Subsequent to the filing of this petition, the Fourth District withdrew its opinion as being erroneous and entered a new opinion holding that, pursuant to sections 958.05(2) and 958.14, the circuit court has jurisdiction over offenders in a community control program. Clem v. State, 462 So.2d 1134 (Fla. 4th DCA 1984) [Clem II].

We think the language of section 958.10, while somewhat unclear, does lend support to the decision we reached in Lollis. However, it now appears to us that a recent amendment to section 948.06 explicitly controls the present case and distinguishes our opinion in Lollis.

Section 958.14, Florida Statutes (1983) provides:

A violation or alleged violation of the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06(1).

Chapter 83-131, section 20, Laws of Florida, amended section 948.06(1) to encompass community control violations in addition to probation violations. The amended statute, which became effective October 1, 1983, states as follows:

Whenever within the period of probation or community control there is reasonable ground to believe that a probationer or offender in community control has violated his probation or community control in a material respect, any parole or probation supervisor may arrest such probationer or offender without warrant wherever found and shall forthwith return him to the court granting such probation or community control. Any committing magistrate may issue a warrant, upon the facts being made known to him by affidavit of one having knowledge of such facts, for the arrest of the probationer or offender, returnable forthwith before the court granting such probation or community control. Any parole or probation supervisor, any officer authorized to serve criminal process, or any peace officer of this state is authorized to serve and execute such warrant. The court, upon the probationer or offender being brought before it, shall advise him of such charge of violation and, if such charge is admitted to be true, may forthwith revoke or modify the probation, place the probationer into a community control program, or continue the probation. If probation is revoked, the court shall adjudge the probationer guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control. If such violation of probation or community control is not admitted by the probationer or offender, the court may commit him or release him with or without bail to await further hearing, or it may dismiss the charge of probation or community control violation. If such charge is not at that time admitted by the probationer or offender and if it is not dismissed, the court, as soon as may be practicable, shall give the probationer or offender an opportunity to be fully heard on his behalf in person or by counsel. After such hearing, the court may revoke, modify, or continue the probation or community control or place the probationer into community control. If such probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control.

(Emphasis supplied.) This section specifically vests jurisdiction in “the court granting such probation or community control.”

In Lollis, the defendant was charged with a violation of probation before the effective date of the amendment to section 948.06(1). Here, the petitioner was charged with violating his probation after the effective date of the amendment. Thus, Lollis is distinguishable, and section 948.06(1) clearly governs the disposition of the present case.

We also point out that section 958.-05(2) is consistent with section 948.01(8), which provides:

Whenever punishment by imprisonment for a misdemeanor or a felony ... is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation or, with respect to any such felony, into community control upon completion of any specified period of such sentence.

Section 948.01(11) states that “[procedures governing violations of community control shall be the same as those described in s. 948.06 with respect to probation.” Thus, petitioner is incorrect in claiming that he would be under the jurisdiction of the Parole and Probation Commission. Furthermore, Florida’s Objective Parole Guidelines Act (Chapter 947, Florida Statutes (1983)) makes no provision at all for the Parole and Probation Commission to deal with offenders in community control programs. Those offenders, however, are covered under chapter 948, which deals with probation and vests jurisdiction over violations in the courts of this state having criminal jurisdiction.

It appears, therefore, that jurisdiction over petitioner is vested in the circuit court and that the petition .for writ of pro- . hibition should be denied. Accord Clem II; Spurlock v. State, 449 So.2d 973 (Fla. 5th DCA 1984).

Due to the apparent confusion over applicability of the above statutes, we certify the following question to the Supreme Court of Florida as one of great public importance:

WHEN A YOUTHFUL OFFENDER HAS BEEN SENTENCED PURSUANT TO SECTION 958.05(2), FLORIDA STATUTES (1983), DOES THE CIRCUIT COURT HAVE JURISDICTION TO ENTER SANCTIONS AGAINST THE YOUTHFUL OFFENDER FOR VIOLATING THE TERMS OF HIS COMMUNITY CONTROL PROGRAM OR DOES JURISDICTION OVER THE VIOLATION LIE EXCLUSIVELY IN THE PAROLE AND PROBATION COMMISSION?

DANAHY and SCHOONOVER, JJ., concur.

      . In Lollis we certified the same question that we are certifying in this case. However, the supreme court dismissed that case, because the notice of appeal was untimely filed. State v. Lollis, 453 So.2d 45 (Fla. 1984).


author: FERGUSON, Judge.

text:
    The STATE of Florida, Appellant, v. Hipolito BARREIRO, Appellee.
    No. 83-2726.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.

      Jim Smith, Atty. Gen. and Paul Mendel-son and Charles Fahlbusch, Asst. Attys. Gen., for appellant.
    Ferrell & Ferrell and Milton Ferrell, Jr., Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   ON MOTION FOR REHEARING

FERGUSON, Judge.

The State appeals an order of the trial court which “forever discharged” the defendant from the crime on a finding that he had been denied the right to a speedy trial as guaranteed by Florida Rule of Criminal Procedure 3.191 and the Florida Constitution.

The question presented is whether the defendant was properly discharged on speedy trial grounds where the State was unprepared to go to trial on the date the trial court received an appellate court order denying the State’s petition for certiorari review of an adverse pre-trial evidentiary ruling. We reverse.

Defendant was taken into custody on January 7, 1983, and charged in a four-count indictment. Trial was set for March 21, 1983, but was continued by joint stipulation of the parties on express terms that the speedy trial period would be tolled until July 11, 1983 — the new trial date.

On July 7, 1983, the trial court entered an order in limine which precluded the State from introducing at trial evidence of similar crimes, but granted the State’s motion for stay of trial so as to permit a certiorari review of that exclusionary ruling. That order, dated August 22, 1983, provided:

ORDERED that the said Motion is GRANTED and the period of time established by Rules 3.191 Fla.R.Crim.P. for trial, is extended from July 7, 1983 until the receipt by this Court of a mandate, order or notice of whatever form, from the District Court of Appeal or Supreme Court, which resolves the issue of whether evidence of other crimes, wrongs, or acts allegedly committed by the defendant will be admissible in the trial of this cause.

We denied the State’s petition for certiorari on August 19, 1983, and denied a motion for rehearing on October 7, 1983. That order became final and was forwarded to the circuit court on October 24, 1983.

On October 17, 1983, defendant appeared before the trial court ostensibly prepared for trial in accordance with the order of August 22, 1983. At that time the State moved for a continuance, alleging that an additional three to four weeks were needed to locate witnesses. The motion was granted. Nonetheless, on November 2, 1983, only sixteen days later, the court granted defendant’s motion for discharge. That order is the subject of this appeal.

The State urges two alternative grounds for reversal. First, it argues that the August 22, 1983 order is invalid as inconsistent with Florida Rule of Criminal Procedure 3.191(g) which gives the State an automatic 90-day period within which to try an accused after the receipt of an appellate mandate. Second, it argues that even if the order is valid insofar as the 90-day period in rule 3.191(g) is inapplicable, the trial court improperly discharged the defendant because the original 180-day period within which the defendant had to be tried under rule 3.191(a) had not yet expired. We accept neither theory, but hold instead that where the State seeks review by certiorari, rather than by direct appeal, and the trial court enters an order tolling the speedy trial period until receipt of the appellate court order without setting a specific time, the defendant must be tried within a reasonable time after the order is received.

Under rule 3.191(a)(1), a person charged with a felony must be tried within 180 days from the day such person is taken into custody. Where review is taken from an appealable order by the State, rule 3.191(g) provides that the defendant must be tried within 90 days from the date of receipt by the trial court of an appellate mandate or order. But because rule 3.191(g) refers specifically to an “appeal,” it is not applicable where the review is sought by way of a writ of certiorari.

In Nelson v. State, 414 So.2d 505 (Fla. 1982), which is instructive to the question presented in this case, the issue was

whether a trial court, after receiving a mandate from a district court directing a new trial in a criminal case, has the authority to extend speedy trial time under Florida Rule of Criminal Procedure 3.191 when the state seeks review in the Supreme Court of the district court’s decision. Id. at 506.

The court looked to rule 3.191(d)(2), entitled “When Time May Be Extended,” and interpreted the term “for appeals by the State” as used in that rule to include all appellate applications made by the State, including petitions for a writ of certiorari. It held that the filing of a petition for certiorari did not automatically entitle the State to an extension of the speedy trial period, but that in the absence of a showing of prejudice to the defendant, a trial court could grant an extension of the speedy trial period as 'an exceptional circumstance under rule 3.191(f). Although a divided Nelson court found that the term “appeals” as used in rule 3.191(d)(2) included all appellate applications, there is no authority or logical requirement for bringing extraordinary reviews within the definition of rule 3.191(g) appeals.

As in Nelson, the State may be granted an extension under rule 3.191(d)(2) only if good grounds for its certiorari petition are demonstrated. We agree with the defendant that the speedy trial period is not automatically tolled where certiorari review is sought, so if the State seeks such a review it must secure an order of the trial court extending the period (or of the appellate court on review of an order denying an extension), or else risk the running of the original 180-day time limitation pending receipt of the appellate mandate. The 180-day speedy trial period also continues to run where a motion for extension of time is denied.

We do not give the trial court’s order the unreasonable construction advanced by defendant — that the date of the receipt of our order was the last date that he could be tried. The trial court’s order failed to set out with specificity the number of days in which the defendant had to be brought to trial, and, as we decide herein, neither is the time period fixed by a rule of procedure. Thus, whether the defendant is entitled to discharge for reason of a denial of speedy trial rights must rest solely on constitutional grounds. See Healey v. State, 389 So.2d 278, 279 (Fla. 3d DCA 1980) (constitutional speedy trial guarantee applies when no specific time period is prescribed by order or rule) (citing State v. Jenkins, 389 So.2d 971 (Fla.1980)).

The better practice in granting an extension under the rules is for the trial court to specify the number of days within which a defendant must be tried after receipt of an appellate order. See State v. Jenkins, 389 So.2d at 975. But where the extension is requested and granted and the number of days is not specified, we are required to read into the order a reasonable period of time as that term is constitutionally defined. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (a claim of denial of a right to a speedy trial is subject to a balancing test, where the conduct of both the defendant and the prosecutor is weighed and several factors, including actual prejudice, are considered).

We have reviewed the entire record, including transcripts of proceedings of October 6, 17, and 28, and find no evidence supportive of the claimed unconstitutional delay. On the facts of this case, the trial court’s initial grant to the State of a three to four week period from receipt of our order in which to locate witnesses and proceed to trial was quite reasonable.

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

      . This case is before us for a third time on a State petition to review a pre-trial ruling. In Case No. 83-504, reported at 432 So.2d 138 (Fla. 3d DCA), rev. denied, 441 So.2d 631 (FIa.1983), we vacated an order which quashed a subpoena duces tecum. In Case No. 83-1857, the State sought review of an order which prohibited it from introducing fact evidence of similar crimes committed by the defendant. By clerk’s order, we denied certiorari without prejudice to the trial court's reconsideration of the admissibility of the evidence for rebuttal or impeachment purposes. 438 So.2d 845 (Fla. 3d DCA 1983).

      . Defendant may not rely on two prior decisions of this court, Clark v. Moore, 447 So.2d 383 (Fla. 3d DCA 1984) and Healey v. State, 389 So.2d 278 (Fla. 3d DCA 1980), as supporting his discharge. Both Clark and Healey involved appeals as of right. The 90-day periods prescribed by rule 0Clark) or order (Healey) had expired at the time discharge was granted. These cases are not controlling.


author: BOARDMAN, Acting Chief Judge.

text:
    RIVERFRONT PROPERTIES, LTD., d/b/a Westbank Properties, Inc., Petitioner, v. MAX FACTOR III and M.F. Capital, Ltd., a California corporation, Respondents.
    No. 84-1056.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1984.

      Brooks P. Hoyt and Ellen J. Neil of Holland & Knight, Tampa, and Mervyn L. Hecht, H. Chester Horn, and Ronald S. Greenfield of Hecht, Diamond & Greenfield, Pacific Palisades, Cal., for petitioner.
    A. Dallas Albritton and Randolph W. Deitz of Albritton & Associates, Tampa, for respondents.
   BOARDMAN, Acting Chief Judge.

Riverfront Properties petitions this court for the issuance of a writ of certiorari to review the trial court’s denial of its motion to dismiss or, in the alternative, motion to stay proceedings pending arbitration. We have certiorari jurisdiction. Fla.R.App.P. 9.030(b)(2)A and 9.100.

The present litigation arose out of the parties’ equal ownership of certain real property located on the Hillsborough River in Tampa (the Westbank Property). Respondent Factor became title holder of the property in 1980. By agreement of June 6, 1980, respondents contracted to hold as nominee an undivided 50% interest in the property for a foreign corporation. Petitioner Riverfront acquired this interest by assignment in May 1982.

On November 9, 1982, the parties entered into an agreement providing for use of the Westbank Property as security for a $4,000,000 loan from Exchange Bank and Trust Company (now known as North Carolina National Bank). According to the agreement, respondents were the initiating force in obtaining the loan. Prior to the funding of the loan, petitioner was offered equal participation in the loan proceeds. At the time the November 1982 agreement was drawn up, petitioner did not choose to borrow but wished to reserve its right to do so at a later time. The agreement therefore provided that half of the loan proceeds was to be disbursed immediately to respondents and the other half was to be deposited in a trust account and held available for petitioner at its election. The agreement further provided that each party agreed not to take any action which resulted in an “EVENT OF DEFAULT” under the loan documents, which documents were included within the scope of the November 1982 agreement. The agreement contained the following relevant provisions:

XI. GOVERNING LAW
This November 1982 Agreement shall be construed in accordance with, [sic] and be governed by the laws of the State of California.
XII. ARBITRATION
Any dispute, including any dispute over the validity of or right to rescission of this Agreement, shall be settled by binding arbitration before the American Arbitration Association in Los Angeles County in accordance with the rules of the American Arbitration Association then in effect, and judgment upon an award rendered may be entered in any court having jurisdiction. This provision shall not prohibit either party from obtaining injunctive relief pending arbitration.

Following execution of the November 1982 agreement, respondents executed and delivered to NCNB a promissory note in the amount of $4,000,000 secured by a mortgage on the Westbank Property. Consistent with the November 1982 agreement, loan proceeds in the amount of $2,000,000 were disbursed to respondents at the time of the execution of the note and mortgage. In November 1983, petitioner exercised its option under the agreement and withdrew its share of the loan proceeds held in trust on its behalf.

On February 24, 1984, respondents filed suit in the circuit court of Hillsborough County for the partition and sale of the Westbank Property. Respondents’ reason for seeking partition is unclear from the record. Respondents state that partition was sought because the property was purchased in 1980 with the idea of resale for development and, despite numerous offers made to the joint venture, petitioner refused to negotiate in terms of a realistic value. In its motion to dismiss, however, petitioner alleged that this partition suit resulted from a dispute the parties were having over respondents’ obligations under the November 1982 agreement.

’ Petitioner then filed suit in California on March 19, 1984. Petitioner's California complaint contained six causes of action including the following: (1) a count for specific performance in favor of petitioner compelling respondents to refrain from causing any “EVENT OF DEFAULT” under the terms of the loan agreement between respondents and NCNB and requiring respondents to comply with the arbitration provision of the November 1982 agreement; (2) a request for a temporary restraining order, a preliminary injunction, and permanent injunction compelling respondents to take all steps necessary to abate and dismiss the Florida partition action and to resolve any and all disputes concerning the Westbank Property pursuant to the arbitration provision of the November 1982 agreement; (3) a request for a declaration of the rights and obligations of the parties under the November 1982 agreement. Petitioner voluntarily dismissed its California action after the Los Angeles Superior Court denied petitioner’s request for a temporary restraining order.

Having dismissed the California action, petitioner, a week later, moved to dismiss respondents’ partition suit or, in the alternative, to stay the proceeding pending arbitration. The trial court denied petitioner’s motions but ultimately granted petitioner’s subsequent request for a stay of the action pending review by this court. Thereafter, petitioner invoked the certiorari jurisdiction of this court.

Petitioner contends that the filing of the partition suit by respondents constitutes an “EVENT OF DEFAULT,” and thus a breach of respondents’ obligation, under the related loan documents and that the dispute is subject to the arbitration provision of the November 1982 agreement. Petitioner observes that while the Florida courts refuse to enforce arbitration agreements calling for the application of the laws of a foreign jurisdiction, Florida courts do honor and enforce arbitration clauses in contracts covered by the Federal Arbitration Act. According to petitioner, the agreement to arbitrate is enforceable under the Federal Act because the November 1982 agreement is one evidencing a transaction in interstate commerce.

Respondents, on the other hand, deny that certiorari is the appropriate vehicle for review and further deny that arbitration was provided for in this matter. Respondents also argue that the Federal Arbitration Act does not apply to the November 1982 agreement because the agreement does not involve interstate commerce. And, finally, respondents contend that, assuming arguendo that arbitration applied to any part of this controversy, petitioner has waived the right of arbitration due to its failure to file a motion to compel arbitration.

Under the circumstances of this case, we agree with respondents’ argument concerning the nonapplicability of the Federal Arbitration Act, and, therefore, we deny the petition.

With regard to their procedural argument, respondents submit that the time, trouble, and expense of participating in an unnecessary trial is not the kind of material injury sufficient to justify this court’s certiorari jurisdiction. On the contrary, however, the courts of this state recognize that a petition for writ of certiorari is the appropriate vehicle for review of an interlocutory order denying an application for arbitration. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Westwind Transportation, Inc., 442 So.2d 414 (Fla. 2d DCA 1983); R.W. Roberts Construction Co. v. St. Johns River Water Management District, 423 So.2d 630 (Fla. 5th DCA 1982); Lipton Professional Soccer, Inc. v. Mijatovic, 416 So.2d 1236 (Fla. 1st DCA 1982); Hansen v. Dean Witter Reynolds, Inc., 408 So.2d 658 (Fla. 3d DCA 1982), petition for review denied, 417 So.2d 328 (Fla.1982); Merrill Lynch, Pierce, Fenner & Smith v. Melamed, 405 So.2d 790 (Fla. 4th DCA 1981); and McAllister v. Giroux, 401 So.2d 908 (Fla. 2d DCA 1981). Indeed, where a valid right of arbitration exists, other courts have held that permitting the parties to litigate the dispute in court instead of proceeding to arbitration constitutes a departure from the essential requirements of law. Paine, Webber, Jackson & Curtis, Inc. v. Lucas, 411 So.2d 1369 (Fla. 5th DCA 1982); Lapidus v. Arlen Beach Condominium Association, 394 So.2d 1102 (Fla. 3d DCA 1981); Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980). Therefore, we do not question the propriety of certiorari as the appropriate method of review.

We also do not agree with respondents’ assertion that the instant dispute is not subject to arbitration. As previously mentioned, the dispute centers upon whether the filing of the partition suit will result in an “EVENT OF DEFAULT” under the related loan documents, said documents having been incorporated by reference into the November 1982 agreement. While respondents deny that partition would jeopardize petitioner’s interest in the Westbank Property, they cannot and indeed do not deny that the obligation to refrain from causing an “EVENT OF DEFAULT” arises from the November 1982 agreement and the related loan documentation. In clear terms, the November 1982 agreement sets out each party’s rights vis-a-vis the other with respect to the use of the Westbank Property as security for the loan and it explicitly prohibits any action consistent with an “EVENT OF DEFAULT.” Admittedly, the language in the clause providing for arbitration of “any” dispute is broad, but here no broad construction is needed to conclude that the parties intended the instant controversy to be resolved by a forum other than the court system. Our inquiry must stop here, however, because the judicial role in enforcing arbitration agreements is not one of merit review but instead is limited to contract construction to determine whether the dispute in question falls within the scope of the arbitration provision. Drake Bakeries, Inc. v. Local 50, American Bakery & Confectionery Workers International, 370 U.S. 254, 264, 82 S.Ct. 1346, 1352, 8 L.Ed.2d 474 (1962); Contracting Northwest, Inc. v. City of Fredericksburg, Iowa, 713 F.2d 382 (8th Cir.1983).

We next proceed to the issue of waiver. Florida courts have consistently held that a party’s contractual right of arbitration may be waived by active participation in a lawsuit or by taking action inconsistent with that right. Merrill Lynch, Pierce, Fenner & Smith v. Westwind Transportation; Balboa Insurance Co. v. W.G. Mills, Inc., 403 So.2d 1149 (Fla. 2d DCA 1981). Initiating legal action without seeking arbitration acts as a waiver, Seville Condominium $1, Inc. v. Clearwater Development Corp., 340 So.2d 1243 (Fla. 2d DCA 1977), as does filing an answer without asserting the right of arbitration, King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th DCA 1978). Also, a party who contests the merits of a claim by filing a motion for summary judgment has been held to waive any right to arbitration. Lapidus v. Arlen Beach Condominium Association.

In the instant case we cannot accept respondents’ contention that petitioner waived arbitration by instituting the California suit and by failing to specifically demand arbitration. As the record makes clear, petitioner responded to the partition suit by first filing the California action and then filing, in Florida, the motion to dismiss, or in the alternative, motion to stay pending arbitration. A review of the California complaint and the Florida motion reveals that petitioner’s sole objective in filing the pleadings was the recognition and judicial enforcement of its right to arbitration. The California complaint requested that the court order respondents to specifically perform their agreement to arbitrate and sought injunctive relief to prevent respondents from further prosecuting the partition action pending arbitration. Similarly, the motion to dismiss did not contest the merits of partition, it merely asked the court to dismiss the cause without prejudice to respondents’ reinstituting suit depending on the outcome of arbitration.

Although no motion to compel arbitration was ever filed, the substance of petitioner’s pleadings leaves no doubt that petitioner’s only response to the partition suit has been to demand its right of arbitration. See Butcher & Singer, Inc. v. Frisch, 433 So.2d 1360 (Fla. 4th DCA 1983); Rinker Portland Cement Corp. v. Seidel, 414 So.2d 629 (Fla. 3d DCA 1982). Therefore, we hold that petitioner did not waive its right to have the dispute submitted to arbitration.

The remaining question for our determination is whether the arbitration provision is enforceable under the Federal Arbitration Act. The applicability of the Federal Act comes into play because, as both parties agree, under Florida law and the Florida Arbitration Code, an otherwise valid arbitration agreement is not enforceable if it incorporates the law of another state. See § 682.02, Fla.Stat. (1983); Damora v. Stresscon International, Inc., 324 So.2d 80 (Fla.1976); Romar Transports, Ltd. v. Iron & Steel Co. of Trinidad & Tobago, Ltd., 386 So.2d 572 (Fla. 4th DCA 1980); Knight v. H.S. Equities, Inc., 280 So.2d 456 (Fla. 4th DCA 1973). By virtue of the supremacy clause, however, Florida courts must honor arbitration clauses in contracts covered by the Federal Act. Donmoor, Inc. v. Sturtevant, 449 So.2d 869 (Fla. 5th DCA 1984); Butcher & Singer, Inc. v. Frisch; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Melamed. By its terms the Act applies to:

A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the resolution of any contract.

9 U.S.C. § 2 (1947). ‘Commerce,’ as herein defined, means commerce among the several states or with foreign nations, or in any Territory of the United States or in the District of Columbia_” 9 U.S.C. § 1.

There is no dearth of case law defining what constitutes a transaction involving commerce. We note with interest that the North Carolina Supreme Court in Burke County Public Schools Board of Education v. Shaver Partnership, 303 N.C. 408, 279 S.E.2d 816 (1981), adopted the approach enunciated by Judge Lumbard concurring in Metro Industrial Painting Corp. v. Terminal Construction Co., 287 F.2d 382 (2d Cir.1961), cert. denied, 368 U.S. 817, 82 S.Ct. 31, 7 L.Ed.2d 24 (1961):

The significant question therefore [in determining whether a contract evidences a transaction involving commerce], is not whether, in carrying out the terms of the contract, the parties did cross state lines, but whether, at the time they entered into it and accepted the arbitration clause, they contemplated substantial interstate activity. Cogent evidence regarding their state of mind at the time would be the terms of the contract, and if it, on its face, evidences interstate traffic ... the contract should come within § 2. In addition, evidence as to how the parties expected the contract to be performed and how it was performed is relevant to whether substantial interstate activity was contemplated.

287 F.2d at 387.

Applying Judge Lumbard’s well-reasoned analysis to the present case, we can only conclude that the November 1982 agreement does not contemplate substantial interstate activity. The agreement shows on its face that it was drawn up in California and the joint venture which owns the Westbank Property is made up of California corporations who were represented by California counsel during the negotiation of the agreement. Because the parties are based in California, all correspondence and communication between them as called for by the agreement must necessarily take place intrastate. Furthermore, Los Ange-les has been selected as the place of performance and the agreement is to be construed in accordance with the laws of California. Although the loan was obtained from a Florida lending institution, we find no evidence that the proceeds were used in Florida or any other state. Therefore, we must assume the funds remained in California. Interestingly enough, petitioner has not stated how the parties expected the agreement to be performed nor how it was performed.

Petitioner does argue, however, that the agreement contemplated the use of interstate banking and communication facilities and, therefore, evidences a transaction involving commerce, because it provided for the loan proceeds to be disbursed in California and because it required that interest payments be delivered to NCNB, as well as $300,000 in cash and securities in the event petitioner elected to borrow. While we agree that these terms of the agreement contemplate interstate activity, we simply do not find any other interstate aspects to the performance of this agreement. Therefore, we hold that the November 1982 agreement, considered in its entirety, does not evince the degree of interstate activity necessary to invoke the Federal Arbitration Act.

As a final note, we must mention that the agreement in the instant case differs from the typical contract evidencing a transaction in commerce, such as one for the sale and/or distribution of goods across state lines, see, e.g., Lawson Fabrics, Inc. v. Akzona, Inc., 355 F.Supp. 1146 (S.D.N.Y. 1973), aff'd, 486 F.2d 1394 (2d Cir.1973), or one for the construction of a housing project or shopping center where the materials, labor, and/or potential investors all originate in a place other than where the contract was made or to be performed, see, e.g., Sears Roebuck & Co. v. Glenwal Co., 325 F.Supp. 86 (S.D.N.Y.1970), aff'd, 442 F.2d 1350 (2d Cir.1971). Having thoroughly examined the agreement, it is clear to us that its primary purpose was the protection of the parties’ respective interests in the Westbank Property. Because Congress intended the Federal Act to encompass contracts that merely “relate to interstate commerce” in addition to those whose direct purpose is the interstate shipment of goods and/or materials, etc., see Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), we have applied Judge Lumbard’s analysis as means of determining the interstate elements of this agreement.

PETITION FOR WRIT OF CERTIORA-RI DENIED.

DANAHY and LEHAN, JJ„ concur.

      . 682.02 Arbitration agreements made valid, irrevocable, and enforceable; scope. — Two or more parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. Such agreement or provision shall be valid, enforceable, and irrevocable without regard to the justiciable character of the controversy; provided that this act shall not apply to any such agreement or provision to arbitrate in which it is stipulated that this law shall not apply or to any arbitration or award thereunder.

      . Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); Mediterranean Enter., Inc. v. Ssangyong Corp., 708 F.2d 1458 (9th Cir.1983); American Home Assurance Co. v. Vecco Concrete Co., 629 F.2d 961 (4th Cir.1980); Medical Dev. Corp. v. Indus Molding Corp., 479 F.2d 345 (10th Cir. 1973); Varley v. Tarrytown Associates, Inc., 477 F.2d 208 (2d Cir.1973); Metro Indus. Painting Corp. v. Terminal Constr. Co., 287 F.2d 382 (2d Cir.1961), cert. denied, 368 U.S. 817, 82 S.Ct. 31, 7 L.Ed.2d 24 (1961); Masthead Mac Drilling Corp. v. Fleck, 549 F.Supp. 854 (S.D.N.Y.1982); Fox v. Merrill Lynch & Co., 453 F.Supp. 561 (S.D.N.Y.1978); C.P. Robinson Constr. Co. v. National Corp. for Housing Partnerships, 375 F.Supp. 446 (M.D.N.C.1974); Burke County Pub. Schools Bd. of Educ. v. Shaver Partnership, 303 N.C. 408, 279 S.E.2d 816 (1981); Cohoon v. Ziman, 60 N.C.App. 226, 298 S.E.2d 729, petition for review denied, 307 N.C. 697, 301 S.E.2d 388 (1983); Miller v. Puritan Fashion Corp., 516 S.W.2d 234 (Tex.Civ.App.1974); Fite & Warmath Constr. Co. v. MYS Corp., 559 S.W.2d 729 (Ky. 1977); University Casework Sys., Inc. v. Bahre, 172 Ind.App. 624, 362 N.E.2d 155 (1977).