text:
    B. Bruce ALICANDRI and William T. Raleigh, as Trustees of ABR Realty Trust, Appellants, v. FORTUNE FEDERAL SAVINGS AND LOAN ASSOCIATION, a corporation organized and existing under the laws of the United States of America, Whispering Surf Development Corporation, Richard L. Benware, Dean R. Jones, Robert A. Bryan, Sea Horse Development Corp., Sears Roebuck & Co., Airtron, Inc., Grogan-Wallace Co., A-1 Cleaning Agency, Edouard C. Craig, Inc., Patricia A. Miller, Edsel Lamont & Associates Co., Inc., C.P. Ward, Inc., Spa Pools of Pinellas, Inc., d/b/a Florida Fence, Tindall’s Rainbow, Inc., Gerald J. Silverman, SI # 9, Inc., Bank of Coral Gables, Whispering Sea Venture, a joint venture, Sea Horse Properties, Inc., Equipro, Inc., Dennis R. Deloach, Jr., P.A. and Ralph J. Minellas, Appellees.
    No. 83-1654.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.
    Rehearing Denied March 2, 1984.

      John A. Nelson of Nelson, Beckett & Nelson, St. Petersburg, for appellants.
    R. Timothy Peters of Goza, Hall & Peters, P.A., Clearwater, for appellee Fortune Federal Sav. and Loan Ass’n.
   PER CURIAM.

Appellants appeal the final summary judgment of foreclosure of a real property mortgage in favor of appellee Fortune Federal Savings and Loan Association.

We affirm.

Appellants raised three points on appeal:

I.WHETHER THE PLEADINGS . AND DEPOSITIONS ON FILE IN THIS CAUSE SHOW THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT?
II.WHETHER FORTUNE FEDERAL’S MORTGAGE HAS PRIORITY OVER APPELLANTS’ MORTGAGE BY VIRTUE OF ORDER OF RECORDING AND LANGUAGE CONTAINED IN THE MORTGAGES?
III.WHETHER APPELLANTS ARE ENTITLED TO A MARSHALING OF ASSETS?

The first two of appellants’ points concern whether the priority of appellee’s first recorded mortgage lien should be subordinate to appellants’ later recorded mortgages and liens. We find that the trial judge was correct in finding that uncontroverted facts show no cause why appellee’s first recorded mortgage should not retain its priority.

We further consider appellants’ urging the doctrine of marshaling of assets in this case to be inappropriate.

We therefore affirm the final summary judgment.

HOBSON, A.C.J., and RYDER and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Elan Dwayne TAYLOR a/k/a Wayne, Appellee.
    No. 83-2137.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Affirmed on authority of State v. Thomas, 428 So.2d 327 (Fla. 1st DCA 1983).

GRIMES, A.C.J., and RYDER and SCHOONOVER, JJ., concur.


text:
    Alvin KING, Appellant, v. STATE of Florida, Appellee.
    No. 83-2227.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1984.
    Rehearing Denied Feb. 28, 1984.
   PER CURIAM.

Affirmed. Knight v. State, 394 So.2d 997 (Fla. 1981).

OTT, C.J., and CAMPBELL and LEHAN, JJ., concur.


author: LETTS, Judge.

text:
    CHICAGO INSURANCE COMPANY, Appellant/Cross Appellee, v. ARGONAUT INSURANCE COMPANY, etc., et al., Appellees/Cross Appellants. MAY PLUMBING COMPANY, Northern Assurance Company of America and Commercial Union Insurance Company, Appellants/Cross Appellees, v. ARGONAUT INSURANCE COMPANY, et al., Appellees/Cross Appellants. CHICAGO INSURANCE COMPANY, Appellant, v. ARGONAUT INSURANCE COMPANY, etc., et al., Appellees.
    Nos. 82-502, 82-693 and 82-751.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1984.
    Rehearing Denied July 17, 1984.
    Richard S. Womble of Fertig & Curtis, P.A., Fort Lauderdale, for appellant/cross appellee, Chicago Insurance.
    Robert M. Klein of Stephens, Lynn, Cher-nay & Klein, P.A., Miami, for appellants/cross appellees, May, Northern and Commercial.
    Thomas D. Lar din of Weaver, Weaver & Lardin, P.A., Fort Lauderdale, for ap-pellees/cross appellants, Argonaut Insurance.
   LETTS, Judge.

This case arises out of a fire at the Colony Club Apartments for which the owner’s Insurance Company paid $249,-360.51 for the loss. Thereafter the Insurance Company filed the instant subrogation action against appellants May Plumbing, claiming the fire had been caused by the negligence of an employee of the Plumbing Company. Judgment was entered for the Insurance Company in the amount of $187,-020.38 after a reduction for 25% comparative negligence charged against the owner. The trial court awarded prejudgment interest. We find error only as to this award of interest.

The comparative negligence factor made any award of damages uncertain and therefore unliquidated. We are persuaded by the case McCoy v. Rudd, 367 So.2d 1080 (Fla. 1st DCA 1979), in which the owner of some buildings sued the parents of a boy who caused the fire. The court disallowed the interest awarded by the trial court saying:

Where the judgment is for damages, interest may not be added to the principal award unless there can be a conclusive determination of an exact amount due and a date from which interest can be computed. See Bryan and Sons Corp. v. Klefstad, 265 So.2d 382, 385 (Fla. 4th DCA 1972). There was a dispute between the parties hereto not only as to fault but also as to the amount of appel-lees’ loss. This dispute was settled only by the jury. Assuming that the appellant, McCoy, was negligent from the outset of the dispute there was no way that he could have reasonably known with any degree of certainty or definiteness how much he owed the Rudds until the jury settled the issue by their verdict.

See also Parker’s Mechanical Contractors v. Eastpoint Water & Sewer District, 367 So.2d 665 (Fla. 1st DCA 1979).

The award of prejudgment interest is reversed and this cause remanded for the entry of a judgment in accordance herewith.

We find no reversible error in the remaining points on appeal.

REVERSED AND REMANDED.

DOWNEY and GLICKSTEIN, JJ., concur.


author: LEHAN, Judge.

text:
    Clark DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1243.
    District Court of Appeal of Florida, Second District.
    April 25, 1984.
    Rehearing Denied June 11, 1984.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals his convictions and sentences for two counts of burglary. Defendant contends that the trial court erred in not fully granting his motion to suppress certain evidence and in refusing to give the jury an instruction on theft. We affirm.

A Tarpon Springs police officer, Detective Fivecoat, was investigating burglaries that had occurred in the area of defendant’s home. An informant had given the detective information causing the detective to stake out defendant’s home on the nights of November 9 and 10, 1982. On the evening of November 10, Detective Fivecoat saw a person (later identified as Mr. Snow) leave defendant’s home. Detective Fivecoat and another officer followed Mr. Snow and questioned him. Mr. Snow denied knowing anything about a burglary and said that he and the defendant had just met. After the detective described some of the property stolen in the burglaries, Mr. Snow stated that he had seen those items inside the home. The testimony was that Detective Fivecoat and Mr. Snow went back to defendant’s residence to confirm that Mr. Dixon and Mr. Snow had just met.

At defendant’s home, Mr. Snow and Detective Fivecoat stood outside the door while they talked to defendant. Through the doorway, Detective Fivecoat could see plants and a stereo that he believed were items stolen in the burglary. Detective Fivecoat told defendant that he thought the plants were stolen and that he wanted to talk to him about that. The detective gave the defendant a Miranda warning. When questioned about the plants and stereo, the defendant denied any knowledge about any stolen property.

Detective Fivecoat saw one of the burglary victims, Naomi Raysses, standing outside her nearby house. The detective asked her to come over and look through defendant’s front door to see if she saw any of her property. When Ms. Raysses stepped up on the front stoop to look inside, the detective took one step inside the house to get out of her line of vision. Ms. Raysses pointed out three plants which she said were her property.

Another burglary victim, Michael Zoanos, was nearby and was asked by Detective Fivecoat to come to defendant’s door to see if he could see stolen property. Mr. Zoanos looked inside and said that he saw some of his property. Mr. Zoanos then walked into the house, walked over to the stereo, returned to Detective Fivecoat, and said that it was his stereo. Mr. Zoanos’ entry was not prompted by Detective Fivecoat. Defendant did not object or try to stop Mr. Zoanos from entering.

At this point, Detective Fivecoat arrested defendant for possession of stolen property. Detective Fivecoat asked defendant to let him recover the stolen property and said that he was going to collect the property so that it didn’t disappear. Detective Fivecoat stated that if necessary he would have the victims go through the house to identify other property that might belong to them. Defendant told Detective Fivecoat that he did not want people walking through his house and that he would take the detective through the house to point out the stolen property, which he did.

At the police station later, defendant orally admitted burglarizing the residences of Mr. Zoanos and Ms. Raysses and also admitted committing a separate larceny. He agreed to take police officers back to his house to point out additional stolen property.

Defendant filed a motion to suppress the tangible evidence, consisting of the stolen property which the police recovered, and his oral statements made at the police station. After a hearing on the motion, the trial court determined that only the tangible evidence would be suppressed. The court ruled that the entries by the police officers and burglary victims into the defendant’s home were made with the defendant’s consent and that, therefore, any statements made by the defendant would be admissible.

On appeal defendant argues that his statements should also have been suppressed because the entire episode of the detective and the victims searching for stolen property in his home was illegal. We do not agree. When Detective Fivecoat was at defendant’s front door during his investigation and saw stolen property in defendant’s house, the detective had probable cause at that point to arrest defendant. The statements about which defendant now complains were made after his arrest. We find that the arrest of defendant, supported by probable cause, was not improper. See State v. Thomas, 405 So.2d 462 (Fla. 3d DCA 1981). Therefore, there was no error in the trial court’s refusal to suppress defendant’s statements made subsequent to his arrest. Accordingly, we need not address the alleged illegality of the detective’s entry into defendant’s home after the arrest or any resulting inadmissability of physical evidence seized after that entry.

We find no harmful error in defendant’s remaining point as to an alleged error in the jury instructions.

AFFIRMED.

BOARDMAN, A.C.J., and GRIMES, J., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    STATE of Florida, Petitioner, v. M. John ROESS, Respondent.
    No. 83-2362.
    District Court of Appeal of Florida, Second District.
    May 2, 1984.
    Rehearing Denied June 7, 1984.
    James T. Russell, State Atty., and Robert E. Heyman, Asst. State Atty., for petitioner.
    D. Lee Fugate, St. Petersburg, for respondent.
   PER CURIAM.

The state, by petition for writ of certiora-ri, seeks review of an order of the circuit court reversing respondent’s conviction and ordering a new trial. We deny the petition.

Respondent was convicted by a jury in the county court of cruelty to animals, a violation of section 828.12, Florida Statutes (1981). The county court excluded taped evidence of respondent’s prior consistent statement made shortly after the animal was injured. Respondent appealed his conviction to the circuit court, contending that the trial court improperly excluded the statement. The circuit court agreed and reversed, ordering a new trial.

Certiorari review by a district court of appeal of action by a circuit court acting in its appellate capacity is discretionary. Combs v. State, 436 So.2d 93 (Fla.1983). In Combs, the Florida Supreme Court said:

In granting writs of common-law certio-rari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error.... The district courts should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.

Id. at 95-96. See Clermont Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla.2d DCA 1977).

We cannot say that if we should decide that there was error, the error was so serious that it would result in a miscarriage of justice. Errors “that do not obviously prejudice fundamental rights, to the material injury of the complaining parties, may not cause a judgment to be quashed on certiorari.” Newman v. State, 174 So.2d 479, 481 (Fla.2d DCA 1965). The circuit court reversed the conviction and ordered a new trial. The respondent has not been exonerated of criminal wrongdoing. The state has not been deprived of its day in court. See City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1981). We believe that to grant certiorari under the circumstances of this particular case in which the circuit court sat in its appellate capacity would improperly afford two appeals from a trial in the county court. See Clermont. We cannot say that this is one of “those few extreme cases where the appellate court’s decision is so erroneous that justice requires that it-be corrected.” Combs, 436 So.2d at 95.

Accordingly, the petition for writ of cer-tiorari is DENIED.

SCHEB, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.


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

text:
    STATE of Florida, Appellant, v. John Eummel BRIGHT, Appellee. STATE of Florida, Appellant, v. Arthur DAVIS, Appellee.
    Nos. 82-1452, 83-57.
    District Court of Appeal of Florida, Fifth District.
    May 10, 1984.
    On Rehearing June 28, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellant.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellees John Eummel Bright and Arthur Davis.
   FRANK D. UPCHURCH, Jr., Judge.

The state appeals from orders dismissing the informations against defendants Arthur Davis and John Bright on the basis that the statute under which they were charged, section 817.563, Florida Statutes (1981), is unconstitutional. Since they involve the same issue, the casfes have been consolidated on appeal.

The court below held that section 817.563 is unconstitutional because it makes the sale of a substance illegal regardless of whether it is dangerous to public health or safety, or whether it is or is not controlled, or whether the seller knew what it was, or whether the seller intended to sell a controlled substance, and regardless of whether the buyer knew what he was buying. The court also held that the statute was overbroad, in that it would, for example, include mistakes and negligence of pharmacists.

We disagree with the trial court’s interpretation of section 817.563. We agree and adopt the reasoning set forth in M.P. v. State, 430 So.2d 523 (Fla. 2d DCA 1983), where our colleagues in the Second District held that section 817.563 is constitutional.

REVERSED and REMANDED.

DAUKSCH and COWART, JJ„ concur.

ON MOTION FOR REHEARING

DAUKSCH, Judge.

In their motion for rehearing appellees correctly point out that we neglected to certify our decision is in conflict with State v. Bussey, 444 So.2d 63 (Fla. 4th DCA 1984). We so certify.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

      . Section 817.563, Florida Statutes (1981), provides as follows:
      It is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s. 893.03 and then sell to such person any other substance in lieu of such controlled substance. Any person who violates this section with respect to:
      (1) A controlled substance named or described in s. 893.03(1), (2), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      (2) A controlled substance named or described in s. 893.03(5) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.


author: DELL, Judge.

text:
    STATE of Florida, Appellant, v. Kenneth E. BEJA, Harold Kenneth Lennon a/k/a Mark Allen Champ, Appellees.
    Nos. 83-1095, 83-1937.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1984.
    Rehearing Denied June 27, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellee, Kenneth E. Beja.
    Douglas N. Duncan of Foley, Colton & Duncan, P.A., West Palm Beach, for appel-lee, Harold Kenneth Lennon a/k/a Mark Champ.
   DELL, Judge.

The State appeals from an order of the trial court granting appellee Beja’s motion to suppress and an order granting appellee Lennon’s motions to suppress. We affirm.

The information filed against appellees contained the following five counts: (1) loitering and prowling; (2) trafficking in cocaine; (3) possession of paraphernalia; (4) possession of cocaine; and (5) carrying a concealed firearm. The State charged Beja only with Counts (1), (2) and (3); and charged Lennon only with Counts (1), (4) and (5).

Appellee Beja filed a motion to suppress and alleged that the police stopped his car on nothing more than a hunch or bare suspicion. At the suppression hearing one of the arresting officers testified that during the course of an unrelated investigation at Ho Wah’s Restaurant he learned that there had been numerous problems in the rear of the restaurant. After leaving Ho Wah’s at approximately 11:00 P.M., the officers checked the rear area of the restaurant and saw a vehicle parked behind Super-X Drugs. As Officer Springer approached the car and turned on his spotlight the car started to move towards the officers’ vehicle. Springer yelled, “Stop,” two or three times before the car finally stopped.

The trial court determined that the officers did not have a founded suspicion to stop appellees and granted appellee Beja’s motion to suppress. At a subsequent hearing on appellee Lennon’s motions to suppress, the State conceded that Lennon had standing to challenge the seizure of cocaine found in his pocket but argued that he had no standing to challenge the seizure of the firearm found in the vehicle because he was merely a passenger and had not established an expectation of privacy. The trial court granted both of Lennon’s motions to suppress notwithstanding its finding that Lennon had not established an expectation of privacy in the vehicle.

Appellant raises two points on appeal. First, appellant challenges the trial court’s determination that the officers lacked a founded suspicion of criminal activity and therefore effected an unlawful stop. Second, appellant contends that even if the officers effected an unlawful stop, the trial court erred in granting appellee Lennon’s motion to suppress the firearm because he failed to establish standing.

Before an officer can stop an individual, he must have a founded suspicion that the individual has committed, is committing, or is about to commit a crime. State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978); § 901.151(2), Fla.Stat. (1983). In Stevens, this court described “founded suspicion” as

a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge. “Mere” or “bare” suspicion, on the other hand, cannot support detention. Coleman v. State, 333 So.2d 503 (Fla. 4th DCA 1976). Mere suspicion is no better than random selection, sheer guess-work, or hunch, and has no objective justification. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Thomas v. State, 250 So.2d 15 (Fla. 1st DCA 1971).

354 So.2d at 1247.

We agree with the trial court’s determination that the facts of this case do not give rise to a founded suspicion of criminal activity, see Freeman v. State, 433 So.2d 9 (Fla. 2d DCA 1983); Schneider v. State, 353 So.2d 870 (Fla. 4th DCA 1977); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977), and we hold that the police unlawfully stopped the car occupied by appellees Beja and Lennon.

Next, appellant contends that even if the court properly granted the motion to suppress with regard to appellee Beja, the court improperly granted appellee Lennon’s supplemental amended motion to suppress the firearm. Appellant maintains that Lennon must have sufficient standing to bring a motion to suppress, Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Rivera, 400 So.2d 22 (Fla. 4th DCA 1981), petition for review denied, 408 So.2d 1095 (1981); and that other cases have held that passengers of automobiles must establish a legitimate expectation of privacy before a motion to suppress can be granted. See State v. Bartz, 431 So.2d 704 (Fla. 2d DCA 1983); State v. Davis, 415 So.2d 82 (Fla. 4th DCA 1982).

Appellee Lennon contends that a legal distinction exists when an individual challenges the lawfulness of the initial stop. According to appellee, a passenger has standing to challenge the initial stop and where the stop is found to be illegal, the evidence seized thereafter must be suppressed. While evidence seized as a result of an illegal stop must be suppressed, Mullins v. State, 366 So.2d 1162 (Fla.1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979); Whitley v. State, 349 So.2d 840 (Fla. 2d DCA 1977), the Second District Court of Appeal found in Kayes v. State, 409 So.2d 1075 (Fla. 2d DCA 1981), petition for review denied, 424 So.2d 762 (Fla.1982), that the individual who rented and drove the car had the requisite expectation of privacy and therefore had standing to challenge the search, but the passenger did not.

We believe the reasoning in People v. Kunath, 99 Ill.App.3d 201, 54 Ill.Dec. 621, 425 N.E.2d 486 (1981), to be the better position. In Kunath, the court stated:

Regardless of whether defendant had a legitimate expectation of privacy in the contents of the automobile so as to challenge successfully the search thereof, as a passenger he can challenge the stopping of the vehicle since his personal liberty and freedom were intruded upon by that act. (See generally LaFave, Search and Seizure, Vol. 3, § 11.3 (1978).) The Fourth and Fourteenth Amendments of the U.S. Constitution forbid unreasonable searches and seizures, and it is clear that stopping an automobile and detaining its occupants constitutes a “seizure” of those persons. (Delaware v. Prouse (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660. See also People v. Deppert (1980), 83 Ill.App.3d 375, 38 Ill. Dec. 675, 403 N.E.2d 1279. And, for the evidence seized as a result of that stop to be admissible, the stop must not have been unreasonable.

Id. at 205, 54 Ill.Dec. at 624, 425 N.E.2d at 489 (emphasis original). Therefore, we hold that appellee Lennon properly challenged the initial stop of the vehicle and had standing to suppress evidence seized as a result of the illegal stop, regardless of any expectation of privacy in the contents of the vehicle.

We recognize that our decision is in conflict with Kayes v. State, supra, and therefore we certify the following questions to the Supreme Court as questions of great public importance:

DOES THE STOPPING OF AN AUTOMOBILE AND DETAINING OF ITS OCCUPANTS CONSTITUTE A “SEIZURE” OF THOSE PERSONS?
IF THE STOP IS UNLAWFUL DOES A PASSENGER HAVE STANDING TO MOVE TO SUPPRESS EVIDENCE OBTAINED AS A RESULT OF THE UNLAWFUL STOP WITHOUT A SHOWING OF A REASONABLE EXPECTATION OF PRIVACY?

We affirm the orders of the trial court granting appellees’ motions to suppress.

AFFIRMED.

DOWNEY and HERSEY, JJ„ concur.


author: COBB, Judge.

text:
    Elijah Frank ARNOLD, Petitioner, v. STATE of Florida, Respondent.
    Nos. 83-1187, 83-1436.
    District Court of Appeal of Florida, Fifth District.
    May 17, 1984.
    As Corrected on Denial of Rehearing June 28, 1984.

      Robert L. Floyd of Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack, P.A., and William C. Hearon, Miami, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   COBB, Judge.

This matter is before us on two petitions for writ of certiorari which have been consolidated for our review. One petition relates to the decision of the trial judge to recuse himself. We deny certiorari review of that decision on authority of Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932).

We also deny certiorari review of the trial court’s determination that the defendant herein is not insolvent. That determination was based on the facts that the defendant Arnold was salaried and able to obtain $10,000.00 for privately retained counsel and $100,000.00 for a cash bond for his release from custody. It is not a departure from essential requirements of law (the prerequisite for certiorari review) for the trial court to find that Arnold is not insolvent based upon Florida Rule of Criminal Procedure 3.111(b)(4). See Combs v. State, 436 So.2d 93 (Fla.1983).

The defendant was adjudicated insolvent for purposes of his trial and appeal in 1979. Those matters were concluded years ago. Then, on January 13, 1983, the trial judge heard a motion to vacate filed by new private counsel for Arnold alleging that his privately retained counsel at trial in 1979 was incompetent. The motion to vacate was granted by order of the trial court dated February 23, 1983, the 1979 conviction was vacated, and a new trial was ordered.

With no motion, hearing or order in regard to Arnold’s insolvency subsequent to the two entered in 1979 (for trial and appeal), his present counsel allegedly incurred $2,553.20 in costs in preparation of the motion to vacate, and $5,628.96 in costs subsequent to the order for new trial in preparation for trial. Finally, in August, 1983, the new trial counsel asked the trial court for another determination of insolvency and for the county to be responsible for the $8,182.16 previously incurred in 1982-1983.

Florida Rule of Criminal Procedure 3.220(k) provides:

Costs of Indigents. After a defendant is adjudged insolvent, the reasonable costs incurred in the operation of these rules shall be taxed as costs against the county. (Emphasis added.)

The court order adjudicating Arnold insolvent, for purposes of appeal entered on November 13, 1979, did not entitle him to incur costs at public expense beyond that appeal. His 1982 and 1983 costs, unconnected with the plenary appeal from the 1979 conviction, were not incurred after an adjudication of insolvency pertaining to post-appeal proceedings. Nor was it reasonable for Arnold’s present attorney to incur costs based on the assumption that the 1979 order of insolvency was one in perpetuity.

The record before us indicates that Arnold’s present attorney has been paid some $10,000 for his services and that Arnold posted a $100,000.00 cash bond for his release from custody on June 17, 1983. These sums were paid for Arnold by his employer. The trial court also found that Arnold, after his release, was reemployed on salary. The trial court, in denying Arnold’s motion in August for a retroactive and prospective adjudication of insolvency, may have considered the expenditure of $110,000.00 for attorney fees and bail money. In addition, however, the court found that, at the time of hearing, Arnold was on salary. The record before us indicates that Arnold’s gross monthly salary in August, 1983, was in excess of $1,000.00.

There is a presumption of solvency at the outset of a criminal proceeding and the defendant has the burden of rebutting that presumption. Slater v. State, 356 So.2d 69 (Fla. 1st DCA 1978). There is also a statutory presumption that Arnold is not indigent by reason of the fact that he was released on bail in an amount exceeding $5,000.00. § 27.52(2)(b), Fla.Stat. (1983). Under these circumstances, we cannot find that the trial court departed from essential requirements of law in denying Arnold’s motion. The position advocated by Arnold and his present counsel would give carte blanche access to county treasuries to every convicted insolvent defendant, ad in-finitum. The petitions are

DENIED.

DAUKSCH and COWART, JJ., concur.


author: PER CURIAM. COWART, Judge,

text:
    Robert JOSEPH, Petitioner, v. STATE of Florida and Louie L. Wainwright, Secretary, Department of Corrections, Respondents.
    No. 83-1734.
    District Court of Appeal of Florida, Fifth District.
    May 17, 1984.
    Rehearing Denied July 3, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for respondents.
   On Petition for Writ of Habeas Corpus

PER CURIAM.

We grant Joseph’s petition for habeas corpus to obtain belated direct review of his criminal conviction and sentence. Trial counsel allegedly failed to file a notice of appeal in Joseph’s case because of his mistaken belief that a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.800 tolled the time for filing a notice of appeal. See Joseph v. State, 437 So.2d 245 (Fla. 5th DCA 1983).

In the past, the sufficiency of an indigent petitioner’s allegations in a petition for ha-beas corpus for belated direct review were measured by reference to Baggett v. Wainwright, 229 So.2d 239 (Fla.1970). Baggett held that because a petitioner’s right to a full and direct appeal was governed by the due process clause, see Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the defendant was entitled to belated review when state action had deprived him of his due process rights. However, since a defendant must initiate an appellate proceeding, the state was under no duty to act until the defendant had requested an appeal. This was the source of the requirement that a defendant must allege that he had requested an appeal to be filed in his behalf.

This theory and approach changed in State v. Meyer, 430 So.2d 440 (Fla.1983). The Florida Supreme Court held that ineffective assistance of counsel for indigents on appeal would now be tested by the same standards used to measure ineffective assistance of counsel for nonindigent defendants. Therefore, since an untimely filing of a notice of appeal would constitute, if anything, ineffective assistance of counsel and not a violation of a party’s due process rights, a defendant need no longer allege state action.

This is not to say that the question of whether Joseph requested an appeal is not of crucial significance in regards to determining the claim of ineffective assistance of counsel. However, the notice of appeal filed in the first Joseph appeal speaks for itself that some type of communication had indeed taken place between Joseph and the public defender’s office. But, whether that communication was in fact timely made, and whether the untimely filing of the notice of appeal constituted ineffective assistance of counsel are questions which should be determined by a commissioner upon remand.

Accordingly, we appoint The Honorable C. Vernon Mize, Jr. as commissioner for this court to determine whether Joseph was denied his appeal rights because of ineffective assistance of counsel. Meyer; Potts v. Wainwright, 413 So.2d 156 (Fla. 4th DCA 1982), aff'd, 438 So.2d 825 (Fla.1983).

REMANDED.

DAUKSCH and SHARP, JJ., concur.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

The petition for writ of habeas corpus for a belated direct review has attached as exhibits the final judgment and the clerk’s minutes both showing that petitioner was advised by the court, pursuant to Florida Rule of Criminal Procedure 3.670, concerning his right of appeal including the time allowed by law for taking an appeal, being 30 days.

Failure to timely appeal cannot result from the ineffective assistance of counsel unless before that time has expired privately retained counsel has agreed with the client to initiate an appeal or, after timely advising the trial court of his indigency and desire to appeal, the court or appointed counsel failed to perform some duty which resulted in depriving the defendant of his right to appeal. The petitioner does not allege that his private attorney agreed within the allotted time to initiate an appeal and failed to do so. Neither does he allege that he timely advised the trial court of his indigency and desire for the assistance of appointed counsel to undertake an appeal. There is no need to appoint a commissioner to determine the truth of allegations in a petition if the petition fails to contain essential allegations. Therefore I would deny the petition because it fails to allege the essential facts showing that petitioner is entitled to the relief sought. See Denard v. Wainwright, 418 So.2d 280 (Fla. 5th DCA 1982). See also Knight v. State, 394 So.2d 997 (Fla.1981) (on assertion of ineffectiveness of counsel, specific omission or overt act upon which the claim is based must be detailed in appropriate pleading).


text:
    Terri Lynn DAVIS, Appellant, v. Robert Ernest BRIDGE, Appellee.
    No. AU-136.
    District Court of Appeal of Florida, First District.
    May 18, 1984.
    Rehearing Denied July 16, 1984.

      Donald C. Peters, Gainesville, for appellant.
    No appearance for appellee.
   PER CURIAM.

Although we would not have imposed the restrictions on the child’s out-of-state travel which were imposed by the trial court, we cannot say that the trial court’s action was a reversible abuse of discretion.

AFFIRMED.

THOMPSON, NIMMONS and BAR-FIELD, JJ., concur.


text:
    Charles ERNST, Appellant, v. Loren H. SCHWECTER, Appellee.
    No. 83-1873.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    Rehearing Denied June 25, 1984.
    Margulies & Rones and Bruce Margulies, North Miami Beach, for appellant.
    Silver & Silver and Ira Silver, Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See In Re Estate of Fred Cohen v. Holland, 370 So.2d 40 (Fla. 3d DCA 1979); Food Fair Stores, Inc. v. Morgan, 338 So.2d 89 (Fla. 2d DCA 1976).


author: SCHEB, Judge.

text:
    STATE of Florida ex rel. TIMES PUBLISHING COMPANY, and Miami Herald Publishing Company, Petitioners, v. The Honorable David F. PATTERSON, Chief Judge for the Sixth Judicial Circuit of Florida, Respondent.
    No. 84-154.
    District Court of Appeal of Florida, Second District.
    May 23, 1984.
    Rehearing Denied June 27, 1984.

      George K. Rahdert of Rahdert, Anderson & Richardson, St. Petersburg, and Richard J. Ovelmen, Miami, for petitioners.
    Jim Smith, Atty. Gen., and Walter M. Meginniss, Asst. Atty. Gen., Tallahassee, for respondent.
   SCHEB, Judge.

Petitioners challenge Administrative Order No. 83-104, entered by The Honorable David F. Patterson, Chief Judge of the Sixth Judicial Circuit. We vacate the order because we conclude that it does not properly provide for administration of Chapter 83-286, Laws of Florida, which it purports to implement.

The 1983 legislature enacted Chapter 83-286 as an amendment to section 119.07, Florida Statutes, which provides for inspection and examination of public records, subject to certain exemptions. The new amendment added the following exemptions:

Any information revealing the substance of a confession of a person arrested or of witness lists exchanged pursuant to the provisions of Rule 3.220, Florida Rules of Criminal Procedure, is exempt from the provisions of subsection (1), until such time as the charge is finally determined by adjudication, dismissal, or other disposition.

§ 119.07(3)(m), Fla.Stat. (1983).

To implement Chapter 83-286, the respondent, Chief Judge Patterson, entered the following administrative order:

ADMINISTRATIVE ORDER NO. 83-104
RE: EXEMPTION OF STATEMENTS AND WITNESS LISTS FROM PUBLIC RECORDS LAW
This matter coming before the Court for establishment of procedures for exemption of confessions and witness lists in criminal cases from the public records of law, pursuant to the provisions of Section 119.07, Florida Statutes, as amended by Chapter 83-286, Laws of Florida, effective October 1, 1983, it is therefore
ORDERED:
1. Upon receipt of witness lists exchanged pursuant to the Rules of Criminal Procedure for filing, the Clerk shall seal such lists in an appropriately designated envelope and make such envelope a part of the court file.
2. The State Attorney or Defendant may, by Motion made to the Clerk without necessity of court order, designate affidavits, depositions or other papers presented to the Clerk for filing which contain statements or the substance of statements, and thereupon the Clerk shall seal such materials in the manner prescribed in paragraph # 1. Such motion shall set forth the factual basis upon which such materials are exempt from public inspection.
3. Upon final determination of the cause, including the disposition of appeal, or in the absence of appeal the expiration of the applicable appeal period, the Clerk shall, upon request, unseal all such materials and file the same within the court file.
4. All materials sealed pursuant to this Order may be inspected by interested persons upon Court Order of the Judge presiding in the Criminal Division to which such case is assigned after appropriate motion, notice and hearing and in accordance with the law applicable to materials exempt from public inspection.
5. The Case Related Persons function of the Pinellas County Criminal Justice Information System shall not reflect the identities of witnesses in criminal cases on those computer terminals giving public access.
DONE AND ORDERED in St. Peters-burg, Pinellas County, Florida, this 19th day of December, 1983.

Petitioner Times Publishing Company publishes the St. Petersburg Times and Evening Independent; petitioner Miami Herald Publishing Company publishes the Miami Herald. They bring this petition under Florida Rule of Appellate Procedure 9.100(d), which provides for review of “an order excluding the press or public from access to any proceeding, any part of a proceeding, or any judicial records, if the proceedings or records are not required by law to be confidential.” The rule is intended to afford expedited relief to the press or public when First Amendment rights have been infringed. Based on petitioners’ allegations, we have jurisdiction for review. Tallahassee Democrat, Inc. v. Willis, 370 So.2d 867 (Fla. 1st DCA 1979).

Petitioners argue that the legislature’s enactment creating the new exemption violates the separation of powers mandated by article II, section 3, of the Florida Constitution. Additionally, they contend that statutory exemptions in the Public Records Act are part of the rule-making powers which the constitution reserves for the judiciary under article V, section 2. Finally, they argue that Chapter 83-286 unconstitutionally impairs the First Amendment guarantee of freedom of the press under the United States Constitution. However, because of the nature of these proceedings, petitioners have not made any constitutional arguments in an adversarial proceeding in the circuit court. In fact, respondent specifically declined to address these issues by stating: “In my administrative capacity I do not have the authority to rule upon the constitutionality of a duly enacted law.” Thus, in this posture we decline to address the constitutionality of Chapter 83-286. However, in passing we note that the Florida courts have clearly held that the creation of exemptions in the Public Records Act is within the province of the legislature. Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979); News-Press Publishing Co. v. Gadd, 388 So.2d 276 (Fla. 2d DCA 1980), appealed after remand, 412 So.2d 894 (Fla. 2d DCA), petition for review denied, 419 So.2d 1197 (Fla.1982).

Petitioners next focus on the administrative order. They argue that the order trangresses article V, section 2, of the Florida Constitution, which provides: “The supreme court shall adopt rules for the practice and procedure in all courts.” Since the order addresses the maintenance of judicial records, petitioners argue, respondent was without authority to enter it. We recognize the pre-emptive power of the supreme court in the promulgation of rules of procedure. In re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973), modified, 297 So.2d 301 (Fla.1974). Nevertheless, as Chief Judge of the Sixth Circuit, respondent is authorized by the Florida Rules of Judicial Administration to enter administrative orders in the exercise of his administrative supervision over the courts within his circuit. Fla.R.Jud.Adm. 2.050(b). An administrative order is “a directive necessary to administer properly the court’s affairs but not inconsistent with the Constitution or with court rules and administrative orders entered by the Supreme Court.” Rule 2.020(c). Thus, while we perceive some deficiencies in the order’s implementation of the statute, we do not find that its content or intent encroaches on the supreme court’s rule-making authority.

Turning to the administrative order, we first observe that Chapter 83-286 also amended section 119.07(2)(b) to provide that

[i]n any action in which an exemption is asserted pursuant to ... paragraph (m) of subsection (3), the record or records shall be submitted in camera to the court for a de novo inspection .... If the court finds no basis for the assertion of the exemption, it shall order the records to be disclosed.

This order, which is designed to implement the new exemptions, must be read in light of the procedure outlined in section 119.-07(2)(b). This section seeks to preserve the constitutional standards of not abridging First Amendment freedoms unless closure of judicial records is necessary to prevent a serious and imminent threat to the administration of justice. See Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla.1982); Sentinel Star Co. v. Booth, 372 So.2d 100 (Fla. 2d DCA 1979). Thus, under the statutory scheme of exemptions, the trial judge has the opportunity to enter an order compelling closure of certain materials where necessary, and stating the reason therefor so that the legality of the closure may be reviewed. See News-Press Publishing Co. v. State, 345 So.2d 865 (Fla. 2d DCA 1977).

In ruling on a claimed exemption, the trial judge must take into account a balancing of vital constitutional rights. On the one hand there is the First Amendment right of access to judicial proceedings. Balancing this is the inherent power of the courts to preserve a defendant’s right to a fair trial under the Sixth Amendment. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). Yet, as Judge Grimes pointed out in News-Press Publishing Co.: “There must be compelling reasons before some or all of the records of a court proceeding may be sealed.” 345 So.2d at 867.

Measured by the statutory scheme set out in sections 119.07(2)(b) and (3)(m) and the standards previously announced by the courts, we find the administrative order invalid for several reasons. First, it is overbroad. The statutory exemption contemplates the sealing of witness lists or information revealing the substance of a confession. However, the order goes further to permit the state attorney or defendant, by motion to the clerk and without the necessity of court order, to “designate affidavits, depositions or other papers ... which contain statements or the substance of statements.” This nonselec-tive approach could improperly lead to the sealing of entire documents and depositions. Such a result would be contrary to the stated purpose of the Public Records Act that “only that portion of the record for which an exemption is asserted” shall be withheld from disclosure. § 119.-07(2)(a). A further example of its over-breadth is the provision for the sealing of “statements” without limiting the statements involved to those which reveal the substance of a “confession” or information relating to witness lists exchanged pursuant to Florida Rule of Criminal Procedure 3.220. Most importantly, the order effectively eliminates any procedure for an in camera inspection as mandated by section 119.07(2)(b).

Accordingly, we vacate the administrative order without prejudice to respondent reformulating an order consistent with the statute and this opinion.

OTT, C.J., and SCHOONOVER, J., concur.

      . Of course, any new administrative order must always be read in light of the principle that such an exemption is inapplicable to information made public during the course of the judicial proceedings which are open to the public. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Doe v. Sarasota-Bradenton Florida Television Co., 436 So.2d 328 (Fla. 2d DCA 1983).


text:
    NATIONAL SHIRT SHOPS, INC., a foreign corporation, et al., Petitioners, v. HIS & HERS, INC., a Florida corporation, Respondent.
    No. 84-389.
    District Court of Appeal of Florida, Fifth District.
    May 24, 1984.
    Rehearing Denied July 3, 1984.
    Thomas A. Smart of Kaye, Scholer, Fier-man, Hays & Handler, New York City, and Ned N. Julian, Jr., of Stenstrom, McIntosh, Julian, Colbert & Whigham, P.A., Sanford, for petitioners.
    Eli H. Subin of Subin, Shams, Rosen-bluth & Moran, P.A., Orlando, for respondent.
   COBB, Judge.

The petitioner, National Shirt Shops, Inc., has petitioned this court for certiorari review seeking to quash a discovery order entered by the Circuit Court of Seminole County on February 20, 1984. Jurisdiction is predicated upon Florida Rule of Appellate Procedure 9.030(b)(3) and Article V, Section 4(b)(3) of the Florida Constitution.

The order herein compels petitioner to disclose financial information relating to the claim of the respondent, plaintiff below, for an accounting in an action for violation of the Florida trademark statute. Previously, we have granted certiorari in analogous cases wherein there was a court order for premature production of financial information. See Fast Colonial Refuse Service, Inc. v. Velocci, 416 So.2d 1276 (Fla. 5th DCA 1982); Ponte Vedra Recorder, Inc. v. Carpenter, 401 So.2d 834 (Fla. 5th DCA 1981). This case cannot be distinguished from those.

Accordingly, we grant certiorari and quash the order of February 20, 1984, for the reason that it does not conform to essential requirements of law and may cause material injury throughout subsequent proceedings for which remedy by appeal would be inadequate.

PETITION GRANTED; ORDER QUASHED.

DAUKSCH and SHARP, JJ., concur.


text:
    Sidney LEVY, Appellant, v. Lynn D. LEVY, Appellee.
    Nos. 83-925, 84-37.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Rehearing Denied July 3, 1984.
    Trenam, Simmons, Kemker, Scharf, Bar-kin, Frye & O’Neil and Dale F. Webner, Miami, for appellant.
    Sams, Ward, Newman, Beckham & El-ser, and Frank D. Newman, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

The interpretation of a contract is a matter within the purview of the trial court. That interpretation will not be reversed on appeal unless it is clearly incorrect and unsupported by the evidence. Murphy v. Murphy, 370 So.2d 403 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1199 (Fla.1980). The record in this case supports the trial court’s interpretation of the agreement. Accordingly, we affirm.

Affirmed.


author: PER. CURIAM.

text:
    Jeffrey William CLINTON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1364.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Rehearing Denied July 3, 1984.

      Bennett H. Brummer, Public Defender and Bruce A. Rosenthal and Karen Gott-lieb, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and G. Bart Billb-rough, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER. CURIAM.

Despite the fact that the speedy trial time had expired, the defendant’s motion for discharge was denied. The record shows that Clinton did not violate any order of court or other duty to respond and concededly did not receive the notice of his required appearance solely because, through no fault of his own, the prosecution sent it to an incorrect address. On these facts, the delay cannot be attributed to the defendant, who, in turn, may not therefore be deemed “unavailable for trial” under Fla.R.Crim.P. 3.191. State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978); State v. Collie, 390 So.2d 441 (Fla. 5th DCA 1980), rev. denied, 399 So.2d 1146 (Fla.1981); Richardson v. State, 340 So.2d 1198 (Fla. 4th DCA 1976); State ex rel. Kennedy v. McCauley, 265 So.2d 547 (Fla. 4th DCA 1972); V.C. v. Ferguson, 422 So.2d 861 (Fla. 3d DCA 1982), aff’d, 427 So.2d 722 (Fla.1983); State ex rel. Covington v. Rowe, 281 So.2d 71 (Fla. 3d DCA 1973). For this reason, the judgment below, entered pursuant to a nolo plea which preserved the point, is

Reversed.


text:
    The STATE of Florida, Appellant, v. Edmund RITA, Appellee.
    No. 83-2634.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Rehearing Denied July 11, 1984.
    Jim Smith, Atty. Gen. and G. Bart Billb-rough, Asst. Atty. Gen., for appellant.
    Leonard Rosenberg, Miami, for appellee.
    Before HUBBART and FERGUSON, JJ., and TILLMAN PEARSON (Ret.) Associate Judge.
   PER CURIAM.

Affirmed. Sindrich v. State, 322 So.2d 589 (Fla. 1st DCA 1975); Harris v. State, 307 So.2d 218 (Fla. 3d DCA 1974), cert. denied, 315 So.2d 195 (Fla.1975); compare State v. Farrugia, 419 So.2d 1118 (Fla. 1st DCA 1982) (defendants had physical access to cargo area of truck by way of a “pass through” window in truck cab).


text:
    Shirley RICH, Appellant, v. INDEPENDENT LIFE & ACCIDENT INSURANCE COMPANY, Appellee.
    No. 83-2707.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Rehearing Denied June 25, 1984.

      Arthur Newman, Stephen Rosenthal, Miami, for appellant.
    Stinson, Lyons & Schuette and Mark D. Greenberg, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Miller Electric Co. v. Employers’ Liability Assurance Corp., 171 So.2d 40 (Fla. 1st DCA 1965).


text:
    AMERICAN HOIST AND DERRICK COMPANY, INC., a foreign corporation, Appellant, v. Gayle DURAN, as Personal Representative of the Estate of Jose Duran-Perez, and Keith Marcel Duran, Michelle Elizabeth Duran, and Brian Christopher Duran, minors, individually, by and through their mother and natural guardian Gayle Duran, as Personal Representative of the Estate of Jose Duran-Perez, Appellees.
    No. 84-122.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Rehearing Denied July 9, 1984.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Diane H. Tutt, Miami, for appellant.
    Greene & Cooper, Joan M. Bolotin and Robyn Greene, Miami, Haggard & Kirkland, Coral Gables, for appellees.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

American Hoist and Derrick Co., Inc. (Amhoist), a nonresident manufacturer and seller, shipped to its exclusive Florida distributor a crane which was sold to a Florida operator. The use of the crane resulted in the death of Jose Duran-Perez. His personal representative and others instituted this action based on breach of warranty, negligence, and strict product liability against Amhoist and two co-defendants. In answers to interrogatories, Amhoist admitted that during the relevant periods it “may have” advertised its products in publications circulated in Florida, supplied sales materials to its exclusive distributor and other direct accounts in Florida, and sent agents into the state to perform services for its exclusive distributor. On these facts the trial court properly denied appellant’s motion to quash service of process and to dismiss the cause for lack of jurisdiction over the person. See Richard Bertram & Co. v. American Marine, Ltd., 258 So.2d 335 (Fla. 3d DCA 1972); § 48.-181, Fla.Stat. (1983); see also Kravitz v. Gebrueder Pletscher Druckgusswaremfabrik, 442 So.2d 985 (Fla. 3d DCA 1983).

Affirmed.


text:
    Alfred D. BIELEY, P.A., Appellant, v. O.C. MURDERS and Marsha J. Murders a/k/a Marsha J. Kennedy, Appellees.
    No. 84-459.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Rehearing Denied July 5, 1984.
    Alfred D. Bieley, in pro. per.
    Sparber, Shevin, Shapo & Heilbronner and Jeffrey M. Weissman, Miami, for ap-pellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Daniels v. Katz, 237 So.2d 58, 60 (Fla. 3d DCA 1970); see also Frieslander v. Mahon, 400 So.2d 41, 43 (Fla. 2d DCA 1981).


text:
    Kevin Watson KELLY, Appellant, v. STATE of Florida, Appellee. Bruce William MURPHY, Appellant, v. STATE of Florida, Appellee. Wayne Anthony MURPHY, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-2506, 82-2507 and 82-2520.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Rehearing Denied June 20, 1984.

      D. Robert Silber of Kay & Silber, P.A., and Douglas J. Glaid of Glaid & DiMauro, P.A., Fort Lauderdale, for appellant Kevin Watson Kelly.
    Edward M. Kay of Kay & Silber, P.A., Fort Lauderdale, for appellant Bruce William Murphy.
    D. Robert Silber of Kay & Silber, P.A., Fort Lauderdale, for appellant Wayne Anthony Murphy.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

These are consolidated appeals from judgments of conviction for conspiracy to traffic in marijuana. We affirm.

Initially we find no reversible error in appellants’ claims of improper closing argument by the prosecutor. As to the only objections lodged by appellants during the course of closing argument, the trial court properly advised the jury that it would be improper for a prosecutor to vouch for the credibility of a witness. Considering that instruction, and the lack of objection to the other comments now claimed to be improper, we reject appellants’ claim of reversible error.

We also reject appellants’ claim of error in the admission into evidence of a tape recording that was only partially audible; see Odom v. State, 403 So.2d 936 (Fla.1981); and in the admission of testimony that generally suggested appellants’ involvement in illicit drug activities. We think the testimony as to other illicit activity was relevant both to the conspiracy issue being tried as well as to the entrapment defense.

Accordingly, we affirm the appellants’ convictions.

ANSTEAD, C.J., and GLICKSTEIN and WALDEN, JJ., concur.


text:
    Richard Norman STANLEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-368.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Rehearing Denied July 18, 1984.

      Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of trafficking in marijuana and also convicted, along with others, of conspiring to traffic in marijuana. This same date we have issued an opinion affirming the convictions of several of appellant’s codefendants at the conclusion of a joint trial. See Kelly, B. Murphy & W. Murphy v. State, 431 So.2d 896 (Fla. 4th DCA 1984).

As we did in the companion case, we reject appellant’s claim of error in the admission of a partially inaudible tape recording on the authority of Odom v. State, 403 So.2d 936 (Fla.1981). We also reject appellant’s claim that the evidence was insufficient to sustain a conviction for trafficking. Stanley was arrested after he closely inspected the marijuana delivered to him in a van and took possession of the keys to the van, but before he left the scene in the van. We think this evidence was sufficient to establish trafficking by constructive possession of the marijuana. Brown v. State, 412 So.2d 420 (Fla. 4th DCA 1982), affirmed, 428 So.2d 250 (Fla. 1983). We also reject appellant’s claim that he was only charged with conspiring with undercover police officers, and that since they could not be guilty of the offense, he lacked coeonspirators with which to conspire. We believe the information and proof properly linked appellant’s involvement with that of his codefendants mentioned above.

Lastly, we find no harmful error in the trial court’s allowing the jury to use the state’s unadmitted transcript of the tape recording while listening to the tape. See United States v. Onori, 535 F.2d 938 (5th Cir.1976). The record contains two transcripts of the tape recording by the court reporter. The first was made when the court listened to the tape, out of the presence of the jury, to determine audibility; the second, when the tape was played to the jury. A comparison of these transcripts indicates substantial similarity with the state’s transcript. We therefore do not believe reversible error has been demonstrated. We caution trial courts in the future, however, not to allow the use of transcripts when tape recordings are admitted into evidence, especially where the contents of the tape recordings are in dispute, as was the case here. Rather, it should be left to the jury to determine what is contained in the tapes without the intervention of a transcriber.

Accordingly, having reviewed the record and finding no reversible error, we affirm appellant’s convictions.

ANSTEAD, C.J., and GLICKSTEIN and WALDEN, JJ., concur.


author: MILLS, Judge.

text:
    John JOHNSON, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Appellee.
    No. AU-378.
    District Court of Appeal of Florida, First District.
    May 31, 1984.
    Rehearing Denied July 6, 1984.

      Lane Burnett and David R. Lewis of Lewis, Paul, Isaac & Castillo, P.A., Jacksonville, for appellant.
    Ronald L. Palmer, P.A. and James P. Wolf of Mathews, Osborne, McNatt, Gobel-man & Cobb, Jacksonville, for appellee.
   MILLS, Judge.

Johnson appeals from a final judgment denying his claim for uninsured motorist (UM) coverage under two insurance policies issued by State Farm. We reverse.

On 17 January 1981, Johnson was injured while riding as a passenger in a Chevrolet truck owned by his uncle, James Townsend, and insured under a policy issued by State Farm. Johnson claimed that his injuries resulted from the negligence of Reginald Townsend, the driver, who was the son of James Townsend. At the time of the accident, Reginald was driving the truck with James’ consent, and both Johnson and Reginald were residing in James’ home.

Initially, Johnson sued his cousin, his un,cle, and State Farm for his damages. Final judgment was entered for State Farm on that suit based on the policy clause which excluded liability coverage for bodily injury to “any insured or any member of an insured’s family residing in the insured’s household.”

Johnson then instituted the present suit, claiming UM coverage under the same policy. After State Farm moved to dismiss on authority of Reid v. State Farm Fire and Casualty Company, 352 So.2d 1172 (Fla. 1977), Johnson amended his complaint to instead allege UM coverage under two policies insuring two other automobiles owned by Townsend. Both policies contained the following provisions:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.
Uninsured Motor Vehicle — means:
1. a land motor vehicle, the ownership, maintenance or use of which is:
a. not insured or bonded for bodily injury liability at the time of the accident; or
b. insured or bonded for bodily injury liability at the time of the accident; but
(2) the limits of liability are less than the limits of uninsured motor vehicle coverage that apply to the insured; or
(3) the insuring company denies coverage or is or becomes insolvent;
An uninsured motor vehicle does not include a land motor vehicle:
1. insured under the liability coverage of this policy; (Emphasis added)

The parties stipulated to the above facts, and the action was tried by the court sitting without a jury. The trial court found that the Chevrolet truck in which Johnson was a passenger was not an “uninsured vehicle” as defined by the policies and that, as a result, he was not covered by the UM provisions of those two policies. Final judgment was entered in favor of State Farm, and this appeal ensued.

In a case involving identical policy provisions, the Fifth District Court of Appeal recently faced the same question posed here in Curtin v. State Farm Mutual Automobile Insurance Company, 449 So.2d 293 (Fla. 5th DCA 1984) [9 FLW 218]. State Farm argued there, as they do here, that the vehicle involved in the accident was in fact insured and therefore could not be an “uninsured vehicle” under the terms of the policies. We agree with the Fifth District that the vehicle was an “uninsured vehicle” because State Farm had “denied coverage” and because a contrary interpretation would violate the intent of Florida’s Uninsured Motorist Statute, Section 627.-727, Florida Statutes (1983), which is to allow “every insured ... to recover for the damages he or she would have been able to recover if the offending motorist had maintained a policy of liability insurance.” 449 So.2d at 295 (quoting Mullis v. State Farm Mutual Automobile Insurance Company, 252 So.2d 229, 234 (Fla. 1971)).

Our disposition of this issue makes it unnecessary to address the other point raised by Johnson.

REVERSED.

SMITH and NIMMONS, JJ., concur.


author: GRIMES, Judge.

text:
    The WACKENHUT CORPORATION, Petitioner, v. CRANT-HEISZ ENTERPRISES, INC., d/b/a the Shell Factory, etc., Respondent.
    No. 84-660.
    District Court of Appeal of Florida, Second District.
    June 1, 1984.
    Rehearing Denied July 3, 1984.

      Michael J. Keane of Parker, Parker, Bit-ting, Keane & Hayes, and John T. Allen, Jr., P.A., St. Petersburg, for petitioner.
    Jacalyn N. Kolk of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for respondent The Shell Factory.
   GRIMES, Judge.

This is a petition for writ of certiorari to review a discovery order.

A fire occurred on the business premises of The Shell Factory in March, 1982. The Shell Factory later sued Wackenhut for negligence in permitting the fire to start. As a group, the Lee County Arson Investigating Task Force has concluded that the fire started in a couch located inside an office adjoining a warehouse on the property of The Shell Factory. A representative from the state fire marshal’s office has concurred with that opinion.

There is one expert, Mervin Stringer, who may disagree with this conclusion. He was retained by The Shell Factory, but he will not testify at trial. According to other witnesses, Stringer has determined that the fire began in the interior of the warehouse as a result of spontaneous combustion. He also may possess the only set of photographs of that particular area of the warehouse. The warehouse has since been replaced by another structure.

Wackenhut Corporation filed a motion for leave to take Mr. Stringer’s deposition to learn more of the facts and circumstances upon which he bases his opinion. The court denied the motion, finding that Stringer was specifically retained after the fire and in anticipation of litigation; that he would not be called as a witness at trial; and that Wackenhut Corporation had not demonstrated special or exceptional circumstances to permit deposing a nontestifying expert. Wackenhut asserts that the court’s order departs from the essential requirements of the law from which there would be inadequate remedy by appeal. Wackenhut now seeks a writ of certiorari from this court to depose Mr. Stringer and to obtain from him any relevant documents, including photographs of the interi- or of the warehouse.

This discovery issue is governed by Florida Rule of Civil Procedure 1.280(b)(3)(B), which provides in part:

A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

The rule has been designated as “a remnant of the ‘work products’ privilege,” Sun Charm Ranch, Inc. v. City of Orlando, 407 So.2d 938, 939 (Fla. 5th DCA 1981), and imposes the standard of “exceptional circumstances” upon the party seeking to depose the adversary’s nontestifying expert.

Exceptional circumstances have been demonstrated in a condemnation proceeding where the landowner was entitled to call as his witness a condemnor’s appraiser, who was not initially expected to testify. Sun Charm Ranch, Inc. In a personal injury suit, surveillance films, not intended to be introduced as evidence, were deemed subject to discovery if the films were unique, otherwise unavailable, and materially relevant to the cause’s issues. Dodson v. Persell, 390 So.2d 704 (Fla.1980). The court relied on the reasoning of the landmark decision of Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 394, 91 L.Ed. 451, 462 (1947), in explaining the matter of exceptional circumstances:

“We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and nonprivileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty.”

390 So.2d at 708.

Additionally, if an expert has been hired to conduct an investigation in anticipation of litigation, his reports and memoranda constitute materials compiled in preparation for trial. Fla.R.Civ.P. 1.280(b)(2). Therefore, he cannot properly be required to reveal the findings relevant to his investigation, absent proof of the adverse party’s need and inability to obtain the materials without undue hardship. Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970); Alachua General Hospital v. Zimmer USA, Inc., 403 So.2d 1087 (Fla. 1st DCA 1981).

In the instant case, Wackenhut deposed several members of the arson task force who were on the scene during and immediately after the blaze. Thus, Wack-enhut had access to details concerning the location of the fire and the opportunity to obtain information regarding its circumstances. Mr. Stringer was hired subsequently to conduct an investigation in anticipation of litigation. Therefore, we hold that his reports, memoranda, and other documents relative to the fire constitute work product and are exempt from discovery. We also concur with the trial court’s finding that Wackenhut did not demonstrate any exceptional circumstances to permit granting its motion for deposing Mr. Stringer as a nontestifying expert.

The photographs, if existent, stand in a different light. Both parties seem to agree that no pictures were taken of the interior of the warehouse by the task force, Mr. Stringer may have taken some pictures of this site to support his theory. Since the warehouse has been replaced, the scene cannot be reproduced. Dodson. We find that Wackenhut has demonstrated exceptional circumstances regarding the photographs and authorize their discovery.

We grant the petition for writ of certio-rari in part to compel production of any photographs taken by Mr. Stringer of the interior of the warehouse. We affirm the order denying Wackenhut’s motion to depose Mr. Stringer, and certiorari is otherwise denied.

BOARDMAN, A.C.J., and CAMPBELL, J., concur.


author: NIMMONS, Judge. ERVIN, Chief Judge,

text:
    Marcellus HAWKINS, Appellant, v. STATE of Florida, Appellee.
    No. AM-492.
    District Court of Appeal of Florida, First District,
    June 1, 1984.
    Rehearing Denied June 29, 1984.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Wallace All-britton and Andrea Smith Hillyer, Asst. Attys. Gen., for appellee.
   NIMMONS, Judge.

Hawkins appeals his conviction of the crime of sexual battery, contending, inter alia, that the trial court erred in denying his motion for discharge under the Speedy Trial Rule, Fla.R.Cr.P. 3.191. We affirm on all grounds and deem it necessary to treat only the speedy trial issue.

Hawkins committed the sexual battery in Tallahassee on the evening of February 2, 1980. He left town shortly after the offense and returned to his home in Rochester, New York. Hawkins was arrested in New York on January 28, 1981, on the basis of information from Florida authorities that he was a fugitive by reason of an outstanding Florida felony warrant. Hawkins was released on bond in New York on March 27, 1981. On May 7, 1981, he was discharged by the New York authorities since appropriate documents seeking Hawkins’ return to Florida had not been received.

Although not specified in the record of this case as such, Hawkins’ rearrest by New York authorities on August 20, 1981, was on the basis of a governor’s warrant issued as a result of a requisition from the chief executive of-this State. From the time of his discharge on May 7, 1981, until his arrest on the governor’s warrant on August 20, Hawkins was under no detention or constraints.

At the hearing in the lower court on Hawkins’ motion for discharge, a Rochester, New York, police detective testified regarding efforts by the Rochester police to execute the warrant after receiving it in June, 1981. It was apparent from his testimony that Hawkins was attempting to elude them. On one occasion when they were about to close in on him at an apartment, he crawled out a second floor window and eluded the police in a foot race. On another occasion, a number of police officers, acting on a tip that Hawkins was present at the same apartment and that he might be armed and dangerous, surrounded the building, announced their presence and purpose to execute the arrest warrant, and demanded that Hawkins surrender. After receiving no response, the officers searched the building and, with the aid of a police dog, eventually found Hawkins hiding in a closet.

Hawkins’ testimony at the hearing was to the effect, that the reason why he was attempting to elude the police was because the police had previously harassed and threatened him.

After his arrest on August 20, Hawkins resisted extradition, filing a habeas corpus petition on August 26. The extradition proceedings resulted in his eventual return to Florida on October 6, 1981.

Hawkins contends on appeal, as he did in the lower court, that he was entitled to be brought to trial under Fla.R.Cr.P. 3.191 within 180 days of his arrest in New York on January 28, 1981, and that the State of Florida, therefore, lost its right to prosecute him after July 27, 1981. We disagree.

We are of the view that under the present version of the Speedy Trial Rule, the 180-day period does not commence to run until the fugitive has been returned to custody in the State of Florida.

Rule 3.191(b)(1) reads as follows:

Prisoners Outside Jurisdiction. A person who is in federal custody or incarcerated in a jail or correctional institution outside the jurisdiction of this State or a subdivision thereof, and who is charged with a crime by indictment or information issued or filed under the laws of this State, is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending and until written notice of this fact is filed with the court and served upon the prosecutor. For such persons, the time period under (a)(1) commences on the date the last act required under this section occurs. For such persons the time period under (a)(2) commences when the demand is filed so long as the acts required under this section occur prior to the filing of the demand. If the acts required under this section do not precede the filing of the demand, then the demand is invalid and shall be stricken upon motion of the prosecuting attorney. Nothing hereinabove stated shall affect a prisoner’s right to speedy trial under section 941.45-941.50, Florida Statutes (1979).

The defendant urges an interpretation of the above rule such that it applies only to persons who are in federal custody on a charge or conviction of a federal crime or who are in the custody of a foreign jurisdiction on a charge or a conviction of a crime against that jurisdiction. On the contrary, we believe that a reasonable construction of that rule would include fugitives who have been incarcerated and are being held in another jurisdiction solely on the basis of the charges pending in this State. Prior to its amendment in 1980, the above rule read:

Prisoners Outside Jurisdiction. A person who is imprisoned upon conviction of a crime in a penal or correctional institution outside the jurisdiction of this State or a subdivision thereof, and who is charged with a crime by indictment or information issued or filed under the laws of this State, is entitled to a speedy trial upon demand filed with the court having jurisdiction and upon service on the prosecuting attorney. After the demand has been filed, such person is entitled to trial within the periods of time established by § (b)(2), commencing after the prosecuting attorney has filed a de-tainer or has otherwise attempted to secure the presence of the accused for trial or within a reasonable time as determined by the court if the prosecutor has not acted in response to the demand for trial; and if not brought to trial within such period of time shall upon motion timely filed with the court and served upon the prosecuting attorney be foreever discharged from the crime; provided, the court before granting such motion shall ascertain that such person has been continuously available for return to this jurisdiction for trial during such period of time. No rights shall accrue to a person under this section if s.uch person refuses to execute every waiver, consent, or release necessary to secure his return to this jurisdiction, or if the custodial officials of the jurisdiction in which the prisoner is confined refuse to release him for return to this jurisdiction for trial while such refusal continues.
The primary burden for bringing about a speedy trial is on the defendant; however, upon demand, the State must act affirmatively to give such person a speedy trial and must employ all reasonable means to do so. A demand for speedy trial shall state the prisoner’s name, place of incarceration, nature and term of sentence and tentative expiration date, and the nature and date of the charge, as well as the court and county in which said charge is pending in Florida; if a detainer has been filed, and its withdrawal is part of the relief sought, the prisoner shall so state. (Emphasis supplied.)

The emphasized portion of the above pre-1981 rule, that is “upon conviction of a crime,” is conspicuously absent from the present rule. Moreover, it would have been quite easy for the drafters of the present rule to say that it did not apply to persons being held in the other jurisdiction only on the charges outstanding in this State. Instead, as noted, the drafters actually broadened the language. Our reading of this rule is bolstered by the following language contained in (a)(1) of the Speedy Trial Rule:

Speedy Trial Without Demand. Except as otherwise provided by this Rule, and subject to the limitations imposed under (b)(1) and (b)(2), every person charged with a crime by indictment or information shall without demand be brought to trial .... within 180 days if the crime charged be a felony_ The time periods established by this section shall commence when such person is taken into custody as defined under (a)(4). A person charged with a crime is entitled to the benefits of this Rule whether such person is in custody in a jail or correctional institution of this State or a political sub-division thereof or is at liberty on bail or recognizance. This section shall cease to apply whenever a person files a valid demand for speedy trial under (a)(2). (Emphasis supplied.)

The emphasized portion of the above rule further bolsters the conclusion that fugitives arrested outside the State of Florida must look to the provisions of (b)(1) for their speedy trial rights under the present Rule. It is also significant that the above emphasized phrase “in a jail or correctional institution of this State or a political subdivision thereof” was added to (a)(1) by the 1980 amendments to the Speedy Trial Rule. See 389 So.2d at 612.

When viewed in the context of the peculiar problems attendant to fugitive cases, any other interpretation of the present Rule would present unreasonable burdens upon the authorities and would tend to confer undeserved special speedy trial rights on persons who have fled the jurisdiction to avoid prosecution. The instant case is a perfect example. We see no reason why present rule (b)(1) governing “prisoners outside the jurisdiction” should not be construed to encompass Hawkins’ status when he was arrested in New York. Therefore, the defendant’s conclusion that Hawkins’ speedy trial rights were governed by (a)(4) and that the 180-day period commenced running on the date he was arrested in New York in January, 1981, is erroneous.

Even were we to agree that (a)(4) was applicable to Hawkins’ situation, Hawkins would still not be entitled to discharge because the evidence before the trial judge revealed that Hawkins was not available for trial during a portion of the 180-day period of time from January 28, 1981, the date of his arrest in New York. Although it is not entirely clear from the recor'd when in July, 1981, Hawkins attempted to elude arrest, it is evident from the New York detective’s testimony that he first began looking for Hawkins during the second or third week in July, 1981, and that Hawkins eluded capture shortly thereafter as previously described in this opinion, a fact admitted by Hawkins. Of course, if his flight had occurred after July 27, 1981, or after the 180-day period had expired, Hawkins’ unavailability at such time would be irrelevant for speedy trial purposes. Nevertheless, indulging all reasonable inferences that can be drawn from the evidence in the light most favorable to appel-lee, we are of the view that the testimony supports the trial judge’s denial of the motion for discharge.

AFFIRMED.

THOMPSON, J., concurs.

ERVIN, C.J., concurs in part and dissents in part.

ERVIN, Chief Judge,

concurring in part and dissenting in part.

I agree to an affirmance as to the facts presented in this case which I think sufficiently reveal that Hawkins was not available for trial during a portion of the 180-day period of time from the date of his incarceration in New York on Florida charges.

My primary difficulty in concurring with the majority’s opinion is its alternative basis for affirmance — a basis which is not really necessary to the disposition of the case — stating that the provisions of Rule 3.191(b)(1) apply to a fugitive who is held in the custody of another jurisdiction solely on the basis of charges pending in this state. In my judgment the rule does not support this determination. Subsection (b)(1) generally provides that

a person who is in federal custody or incarcerated in a jail or correctional institution outside the jurisdiction of this State, ...., and who is charged with a crime by indictment or information ... filed under the laws of this State, is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending....

(e.s.)

A person in federal custody is usually not one in custody on a state charge, and therefore should not be burdened with the provisions of subsection (b)(1). In the same general context, for the purpose of determining the applicability of subsection (b)(1), a person who is held in a jail outside the jurisdiction of this state, solely on this state’s charges, should not be subjected to the provisions of the subsection. Under the circumstances, the maxim of noscitur a sociis should be applied to construe the language employed, instructing that general and specific words which are capable of an analogous meaning are to be associated together, thereby taking color from each other, with the result that the general words used are restricted to a sense analogous to the less general. Carraway v. Armour & Co., 156 So.2d 494 (Fla.1963). As stated, because one is not customarily placed in federal custody on state charges, I consider that the only logical interpretation of the remaining words in the clause means simply that subsection (b)(1) applies to persons incarcerated in jails outside the jurisdiction of this state on charges pending in the other state.

The majority places great emphasis upon the fact that former Rule 3.191(b)(3), relating to prisoners outside the jurisdiction of the state of Florida, included the words, “imprisoned upon conviction of a crime”, which language was not retained in amended Rule 3.191(b)(1). Nevertheless the committee note to the amended rule states that “federal prisoners and prisoners outside Florida may claim the benefit of this section once special prerequisites are satisfied under (b)(1).” (e.s.) The note continues that “prisoners outside the jurisdiction of Florida may claim benefit under (a)(1) and (a)(2) after the prisoner returns to the jurisdiction of the court where the charge is pending and after the prisoner files. and serves a notice of this fact.” (e.s.) I think it reasonably clear that although the language, “imprisoned upon conviction of a crime”, was not retained, the drafters of the amended rule intended that subsection (b)(1) would expand the provisions of former Rule 3.191(b)(3), which related only to prisoners convicted of crimes in other jurisdictions, to include those persons who had either been charged or convicted in other jurisdictions for offenses committed outside the state of Florida.

As Hawkins cannot be considered a convicted prisoner serving a sentence outside the jurisdiction of the state of Florida, or a person in the custody of a New York correctional institution awaiting trial on New York charges, in my judgment only the provisions of subsection (a)(1) of the rule are applicable to the circumstances presented in this case. The fact that Hawkins was not physically present within the jurisdiction of the state of Florida does not mean that subsection (a)(1) is inapplicable. The New York correctional institution where appellant was held awaiting transfer to Florida was acting simply as the agent for the state of Florida, and, for the purposes of subsection (a)(1), Hawkins should therefore be considered in the custody of a jail or correctional institution of this state. If this interpretation is correct, the time periods applicable to one who is held in custody in a correctional institution of another state solely on charges pending in this state are those — as referenced in subsection (a)(1)— prescribed by subsection (a)(4), stating that “a person is taken into custody ... when the person is arrested as a result of the conduct or criminal episode which gave rise to the crime charged_” Hawkins therefore must be considered to have been taken into custody on January 28, 1981, when he was arrested in New York “as a result of the conduct or criminal episode which gave rise to the crime charged, ...” The time for speedy trial should be held to have run from that date, and were it not for the fact that Hawkins later made himself unavailable for trial, see Rule 3.191(e), before the expiration of the 180-day period of time from his arrest, his motion for discharge would have been of merit.

      . The Public Defender initially filed an Anders brief in which the speedy trial issue was not addressed. Thereafter, this court allowed the appellant to file a pro se brief. The appellant did so and urged reversal on several grounds including the speedy trial issue. Thereafter, this court requested further briefing on this issue from the Public Defender and from the State.

      . The present version of Fla.R.Cr.P. 3.191 has been effective since January 1, 1981, see 389 So.2d 610, and is applicable to the case at bar.