author: RYDER, Judge.

text:
    TAMPA BAY BUSINESS PUBLISHING COMPANY, a Florida corporation, Appellant, v. Dennis Ira ZINK, Appellee. TAMPA BAY BUSINESS PUBLISHING COMPANY, a Florida corporation, Appellant, v. ZINCOM, INC., a Florida corporation, Appellee.
    Nos. 82-1889, 82-2061.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1983.
    Rehearing Denied Oct. 25, 1983.

      James D. Wing and Mark A. Brown of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellant.
    H. James Fischer, St. Petersburg, for ap-pellee Zink.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, P.A., Tampa, for appellee Zincom, Inc.
   RYDER, Judge.

In this consolidated appeal, Tampa Bay Business Publishing Company appeals an order (entered in the case against Zink) which denied its motion for an order of contempt, and a final order denying injunc-tive relief (in the case against Zincom). We have jurisdiction. Fla.R.App.P. 9.110(a)(1) and 9.130(g).

In July 1980, appellee Dennis Zink signed a contract of employment with the appellant. Zink was hired to publish a business magazine entitled “Tampa Bay Business Weekly” (Business Weekly). The magazine focused on information and articles of interest to a business executive audience.

In June 1981, the appellant and appellee Zink entered into a written agreement terminating their employment relationship. Included therein was a document entitled “noncompete agreement.” This agreement provided:

[Tjhat for a period of one (1) year from the effective date of the resignation of Dennis Ira Zink as an employee of the Company, to wit: April 13, 1981, he will not directly or indirectly:
(a) Enter into or in any manner take part in any business, profession, or other endeavor within the greater Tampa Bay-St. Petersburg area either as an employee, agent, independent contractor, owner, or otherwise, which is in competition with the business of the Company as the same is now conducted;
(b) Disclose to any person, corporation, partnership, entity, or business association of any kind, confidential information of any kind whatsoever (including customers’ and suppliers’ lists and names) relating to the business and operations of the Company; or
(c) Interfere with, or cause to any degree, the termination of any relationship the Company has with an employee or customer, or other person, corporation, partnership, entity or other business association.
The undersigned acknowledges that irreparable injury may result to the Company in the event of a breach by him of the restrictions imposed hereby, and that his acceptance of such restrictions was a material factor in the Company’s decision to enter into the Agreement.
In the event Mr. Zink shall engage in any act in violation of said provisions, he agrees that the Company shall be entitled, in addition to other remedies and damages as may be available to it by law or under this Agreement, to an injunction prohibiting him from engaging in such act; provided however, that if any court of record shall finally adjudicate that the restraint provided herein is too broad as to geographic area or period of time, Mr. Zink agrees that the said area or time may be reduced to whatever extent the court deems reasonable, and the restraint may be enforced as to such reduced area or time. Mr. Zink represents that his experience and capabilities are such that he can obtain employment, notwithstanding the restrictions imposed, and that an injunction against violations of the provisions of this Agreement will not prevent him from earning a livelihood.

In July 1981, Zink registered appellee Zincom, Inc. with the Secretary of State of Florida. Zink was the sole stockholder, director and officer of Zincom. Zincom was to publish the “Office Guide to Tampa” (Office Guide), a quarterly magazine with office space listings, announcements of corporate relocations, construction activities, and articles dealing with telecommunications, products, services, interior design, and items of a similar nature. There was some overlap between Business Weekly and Office Guide concerning advertisers.

In September 1981, appellant filed suit against appellee Zink seeking damages and injunctive relief based on the covenant not to compete contained in the employment termination agreement. At a hearing on a motion for entry of a preliminary injunction, the trial court stated and appellant’s counsel agreed that a preliminary injunction would not enjoin Zink from selling Zincom. The court also stated that a preliminary injunction would not be effective until the required bond was filed by appellant. The trial court granted the preliminary injunction and ordered:

A. Dennis Ira Zink, and all persons acting in concert with him, including the officers, directors, agents, servants, employees, successors and assigns of Zincom, Inc., or any other business entity formed by him in connection with the publication of “Office Guide to Tampa,” jointly and severally, shall be and hereby are preliminarily enjoined from, directly or indirectly, engaging in the business of publishing “Office Guide to Tampa,” either as an individual on his own account, or as a partner or as an employee, or for any person, or as an officer, director or stockholder of a corporation, within Pinellas and Hillsborough Counties, Florida.
B. Plaintiff shall post security for the issuance of this preliminary injunction in the sum of Fifty Thousand Dollars ($50,-000.00), which security shall conform to the requirements of Fla.R.Civ.P. 1.610(c).
C. This preliminary injunction shall take effect upon the service hereof, by mail, upon counsel of record for Defendant, and upon the filing of the bond described in paragraph B hereof.

Before posting of the bond, appellee Zink telephoned one Peter Roos, a certified public accountant, to seek an evaluation of Zincom for purposes of trying to sell it. Subsequently, Roos — although aware of the preliminary injunction — purchased Zincom from Zink. Roos had been advised by his own attorney that he was not precluded from' purchasing Zincom or publishing Office Guide. The sale agreement between Zink and Roos disclosed the existence of litigation between appellant and Zink and included a provision recognizing that Zink could not be associated in any manner with the affairs of Zincom. The sale to Roos was on an installment basis, with Zink retaining a lien on the Zincom stock until the installment payments were fully made. On October 29, 1981, two days after the sale, appellant posted with the court the bond for the preliminary injunction against Zink.

In March 1982, appellant sought entry of an order holding Roos in contempt of court for an alleged violation of the preliminary injunction against Zink, based on Roos’ publication of Office Guide. The trial court denied this motion.

In August 1982, the trial court entered final judgment terminating the preliminary injunction against Zink, based upon a “stipulation and joint motion for entry of final judgment.” Appellant timely filed its notice of appeal and challenges the denial of its motion that Roos be found in contempt of court.

Concerning the second case of this consolidated appeal, the first issue of Office Guide was printed and distributed in November 1981. Soon thereafter, appellant filed suit against appellee Zincom for damages and injunctive relief based on the claims that Zincom “aided and assisted Zink in violating the noncompete agreement,” and Zincom benefitted from Zink’s violations of the agreement to the detriment of appellant. The injunctive relief sought by appellant was to prevent “Zincom and all persons acting in concert therewith” from publishing Office Guide within Pinellas and Hillsborough Counties for a period of one year. Appellant’s motion for entry of a preliminary injunction against Zincom was denied by the trial court.

A final hearing was held. The trial court discussed the difficulty in holding Zincom liable under Zink’s covenant not to compete with appellant. The court acknowledged that Zincom was created by Zink, but recognized that the operation of Zincom was totally separate from Zink due to the sale of Zincom to Roos. In its order, the court stated that appellant presented no claim for damages, but sought only injunctive relief. The court denied the injunctive relief and entered judgment in favor of Zincom. Notice of appeal was timely filed.

This court granted appellant’s motion to consolidate the appeals in the Zink and Zin-com cases. Two issues are raised by appellant: first, the denial of the motion for contempt sought against Roos; and second, denial of injunctive relief against Zincom.

We find wanting appellant’s argument that the injunction entered against Zink should be found binding on Roos, and violation of that injunction was in contempt of court. The record reflects that Roos was not acting in concert with Zink to evade the trial court’s injunction through the purchase of Zincom. Knowledge of the injunction, and of the litigation between appellant and Zink, does not in itself reflect improper activity. See Fla.R.Civ.P. 1.610(d). Although Roos had actual knowledge of the not yet perfected injunction, his action in purchasing Zincom is not tantamount to contempt of court based on violation of that injunction. In fact, Roos’ good faith is clear: both the trial court and appellant’s counsel, as well as Roos’ own attorney, concluded that the injunction did not prevent Roos’ purchase of Zincom. Bryant v. State, 363 So.2d 1141 (Fla. 1st DCA 1978); Somerstein v. City of Miami Beach, 319 So.2d 158 (Fla. 3d DCA 1975), cert. denied, 338 So.2d 841 (Fla.1976). The trial court properly refused to hold Roos in contempt of the court’s preliminary injunction against Zink.

The second point raised, however, requires reversal. The trial court denied the injunctive relief sought by appellant against Zincom on the expressed belief that:

[T]o grant the injunctive relief sought by the plaintiff would constitute an unreasonable and therefore unlawful restraint of trade, notwithstanding provisions of the Florida Rules of Civil Procedure 1.610(d), particularly in light of the history of the related case entitled “Tampa Bay Business Publishing Company v. Zink, No. 81-12463” also heard by this court.

The trial court’s holding is irreconcilable with the terms of paragraph “A” of the preliminary injunction granted against Zink and the covenant not to compete executed by Zink.

A covenant not to compete between an employer and an employee is not, ipso facto, an unlawful restraint of trade under Florida law. § 542.33(2), Fla.Stat. (1981). See Foster & Co., Inc. v. Snodgrass, 333 So.2d 521 (Fla. 2d DCA 1976). Hence, Zink was not free to develop a company which would compete with appellant in some fashion and to some degree. In contravention of the covenant, Zink performed some 40 to 60% of the work necessary for publication of Office Guide including the solicitation of advertisers some of whom were advertising customers of appellant. Zink’s sale of the Zincom stock to Roos did not ameliorate the harm to appellant which was caused by Zink’s creation of Zincom.

Counsel for Zincom has argued that Zin-com cannot be enjoined from publishing Office Guide because: first, the preliminary injunction issued against Zink restrained only the activities of Zink; and second, any injunction against Zincom would have been issued only after Zink had sold Zincom to Roos with the result that Zincom was no longer aiding Zink in his violation of the covenant not to compete.

The first argument must fail because by its express language, the preliminary injunction enjoined publication of Office Guide by any person involved with Zin-com, or any other business entity formed by Zink in connection with the publication of Office Guide. In effect, Zincom was subject to the preliminary injunction. Such an effect is not improper. Temporarily Yours—Temporary Help Services, Inc. v. Manpower, Inc., 377 So.2d 825 (Fla. 1st DCA 1979); G & C Merriam Co. v. Webster Dictionary Co., Inc., 639 F.2d 29 (1st Cir. 1980).

The second argument also fails to support Zincom’s position. As Zincom was created by Zink in contravention of his covenant not to compete, the sale to Roos will not operate to prevent entry of an injunction against Zincom’s publication of the Office Guide. To hold otherwise would be to allow a violation of the covenant not to compete to go unremedied in any real sense, especially as the. corporation formed by Zink, appellee Zincom, was the entity through which Zink breached his covenant, and Zin-com benefitted by the breach of the covenant.

The trial court’s opinion that an injunction against Zincom would be an unreasonable and unlawful restraint of trade is mistaken under the facts presented. While a reversal would not be warranted if the conclusion was correct, notwithstanding the trial court’s mistaken reasoning, the record presented does not otherwise support the decision below. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979). We therefore reverse and remand the case involving Zincom to the trial court for entry of an injunction against Zincom prohibiting the publication of the “Office Guide to Tampa.” The trial court is to determine a reasonable period of time for operation of the injunction in light of the original covenant not to compete executed by Zink in favor of appellant and considering the length of time the preliminary injunction was observed.

REVERSED and REMANDED with directions.

OTT, C.J., and SCHEB, J., concur.

      . Roos testified that at the time of his purchase of Zincom, approximately 40 to 60% of the work in preparing for publication had already been performed by Zink. This work included advertising agreements, arrangements for an editorial coordinator, writing of articles and laying out a portion of the first issue.

      . This court dismissed the interlocutory appeal of the denial of the motion for contempt of court. The trial court’s denial of the motion is properly before this court pursuant to rule 9.130(g), Fla.R.App.P.

      .The injunction was not effective until the required bond was filed by appellant. Roos purchased Zincom before the filing of the bond, and thus before the injunction was effective.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SOUND BUILDERS OF ST. PETERSBURG, INC., Appellant, v. Patrick and Rosemary HANLON, d/b/a Hanlon Ceilings, Appellees.
    No. 83-151.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1983.
    Rehearing Denied Oct. 26, 1983.
    Stephen J. Wein of Battaglia, Ross, Hastings, Dicus and Andrews, St. Petersburg, for appellant.
    Paul G. McDuffee II of Langford, Mooney & McDuffee, P.A., Tampa, for appellees.
   PER CURIAM.

Through inadvertence, duplicate final judgments were entered by the trial court in this case. At oral argument, counsel for both parties stipulated that one of the final judgments should be stricken.

We have examined the other points on appeal and find them to be without merit. Accordingly, the final judgment rendered on October 14, 1982, is stricken. The final judgment rendered on October 11, 1982, is affirmed.

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


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

text:
    COUNTY OF VOLUSIA, etc., et al., Appellants, v. W.R. PICKENS and Continental Insurance Company, Appellees.
    Nos. 82-65, 82-397.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 1983.
    Rehearing Denied Oct. 26, 1983.

      Daniel R. Vaughen, Asst. County Atty., DeLand, for appellants.
    Peter B. Heebner of Van Wert, Heebner & Kennedy, P.A.S., Daytona Beach, for ap-pellee W.R. Pickens.
   SHARP, Judge.

Volusia County appeals from a final judgment of $106,300.00 entered against it in an inverse condemnation case. Pickens filed this suit in 1978, and the trial court held that the county had “taken” Pickens’ land on August 18,1976. We affirmed that order. County of Volusia v. Pickens, 399 So.2d 147 (Fla. 5th DCA 1981). The issues of compensation or damages to Pickens were then tried before a jury. In this appeal, the county argues that the trial court erred in directing the jury to value the property as of the date the trial on damages took place (1981), rather than the date of taking (1976), and in allowing Pickens to recover a sum for lost income (rents), together with interest from the date of taking to the date of the trial on compensation. We agree the trial court erred on both points.

Our state constitution provides that “full compensation” must be made to landowners if private property is taken for a public purpose. The constitution, however, does not state the date upon which “full compensation” should be measured, nor have we discovered any controlling statute or Florida appellate decision on this point. Possibly this lack of Florida authority is due to the fact that everyone assumed inverse condemnation suits were analogous to condemnation proceedings, and that the date of taking for both kinds of suits is the critical time of measurement of compensation. Further, it is unusual for the land to substantially appreciate in value after the date of taking, as in this case.

Although' there is authority in ■ other states for other times to measure compensation for the land taken in inverse condemnation proceedings, we think the date of taking is the better rule. It is most consistent with the practice in condemnation proceedings, and Florida courts have frequently applied the same rules to both proceedings on the grounds of logic and fairness. See, e.g., County of Volusia v. Pickens, 435 So.2d 247 (Fla. 5th DCA 1983). Further, there is some support in Florida case law for establishing the date of taking as the date to value compensation. This rule might not be controlling in exceptional situations, analogous to eminent domain proceedings, but it should prevail in most cases. We find no exceptional circumstances in this case.

We also think the trial court erred in allowing an award for Pickens’ estimated loss of rental income from date of taking to the time of trial on compensation. Analogous with eminent domain proceedings, the public body must pay:

[J]ust compensation, i.e., value at the time of the taking plus an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking. (Emphasis supplied.)

Behm v. Division of Administration, Department of Transportation, 383 So.2d 216, 218 (Fla.1980) (quoting United States v. Klamath and Moadoc Tribes of Indians, 304 U.S. 119, 123, 58 S.Ct. 799, 801, 82 L.Ed. 1219, 1223 (1938)). Since Pickens’ property was taken in 1976, no damages for loss of rental income would be included as just compensation after that date because, in legal theory, Pickens suffered his loss of the property in 1976, and thereafter it belonged (albeit wrongfully appropriated) to the county.

Section 73.071, Florida Statutes (1981), provides for business losses in condemnation proceedings. However, the parties concede Pickens’ rental losses do not fit within the statutory provisions. Therefore, the award cannot be sustained on that basis. Lost profits and business damages are generally not deemed to be property for which compensation is due in the context of condemnation proceedings, absent a special statutory remedy. Behm; Jamesson v. Downtown Development Authority of the City of Ft. Lauderdale, 322 So.2d 510 (Fla. 1975). No special statute appears applicable to this case. We think, however, Pick-ens is entitled to pre-judgment interest based on the value of his property taken in 1976 from that date as an appropriate element in his full compensation.

Accordingly, the judgment is reversed and this proceeding is remanded for a determination of full compensation consistent with this opinion.

REVERSED and REMANDED.

COWART, J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting:

The majority concludes that the constitutional guaranty of “full” compensation is satisfied by valuing the property as of the date of “taking.” Because I believe that the property should be valued as of the time of trial, I respectfully dissent.

In the context of inverse condemnation, the term “taking” has been defined as:

[Ejntering upon private property for more than a momentary period and under the warrant or color of legal authority, devoting it to public use or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof.

Edwards Dairy, Inc. v. Pasco Water Authority, 378 So.2d 866 (Fla. 2d DCA 1979). While the trial court has determined that the county had “taken” Pickens’ land in 1976, it does not necessarily follow that this date should be used for valuation of the property.

In White v. State Highway Commissioner, 201 Va. 885, 114 S.E.2d 614 (1960), the Commissioner had built a road on a portion of the Whites’ property in 1943 but did not institute condemnation proceedings until 1958. The state argued that the Commissioner had entered into possession of the Whites’ property “under color of title” and devoted it to public use in 1943 and hence the property should be valued as of that time. The court rejected this argument, explaining:

[S]o far as the appellants, the real owners of the property, are concerned, the entry of the Commissioner on their land in 1943 was unauthorized and unlawful. Pursuant to the statute then in effect, the Commissioner might have instituted condemnation proceedings and immediately obtained title to the property. (Michie’s Code of 1942, § 1969j(4).) Had he done so, this would have been a lawful taking. But that course was not followed.
We hold that the time of taking, with reference to which compensation is to be made, means the time at which the property is taken lawfully by appropriate legal proceedings. Conversely, it does not mean the time at which the property is taken unlawfully and without legal authority, as was done in this instance, (emphasis added)

Id. 114 S.E.2d at 616.

This is in accord with the general rule as stated in 4 Nichols’ The Law of Eminent Domain § 12.23[3] (1981):

The rule that damages are to be assessed as of the date of the taking does not contemplate a physical taking not sanctioned by law, but a taking by appropriate legal proceedings. Consequently, if a corporation invested with the power of eminent domain takes possession of private property in advance of condemnation proceedings, it cannot insist that the compensation awarded in the condemnation proceedings be fixed as of the date of the unlawful entry, instead of the date which the law of the state ordinarily prescribes.

To the same effect, see, eg., Anderson v. Port of Seattle, 49 Wash.2d 528, 304 P.2d 705, 707 (1956) (recognizing rule); Williams v. Henderson County Levee Imp. Dist., 59 S.W.2d 93 (Tex.Com.App.1933); Koerber v. City of New Orleans, 228 La. 903, 84 So.2d 454 (1955). See also Uniform Eminent Domain Code § 1003 (1980).

Our own courts have consistently held that in eminent domain proceedings, absent unusual circumstances, the amount of compensation to be awarded to a property owner is the value of the land taken at the time of the lawful appropriation. Yoder v. Sarasota County, 81 So.2d 219 (Fla.1955); Staninger v. Jacksonville Expressway Authority, 182 So.2d 483 (Fla. 1st DCA 1966). When the condemning authority exercises its power of eminent domain pursuant to chapters 73 and 74, the amount of compensation to the property owner is determined as of the date of trial, or the date upon which title passes, whichever occurs first. § 73.071(2), Fla.Stat. (1981). At that point, the condemning authority has the lawful right or interest in the property and the owner has the use of the monetary equivalent of his property.

Here, the majority has determined that the time of “taking”, with reference to which “full” compensation must be made, is 1976. At this time, Pickens’ property was valued at $35,700. However, at the time of the trial in 1981, the property had appreciated to $80,000. It has been my experience that inverse condemnation actions do not arise from a blatant seizure of a property. Normally, the invasion is more subtle. For example, the culvert under a road was not adequately engineered causing the flooding of an owner’s land in wet periods. The owner complains and the agency responsible may make repairs or modifications. Neither party contemplates a taking at that point. Perhaps several such cycles occur. Only when the agency refuses to make further modifications does the owner seek a judicial remedy. To force the owner to accept compensation based on the value of the property at the time of taking (which the court might conclude occurred when the inadequate drainage first manifested itself), is unfair. Until the property has been lawfully appropriated by the condemning authority, there has been no change of ownership. Certainly if the landowner sought damages in trespass and the agency then instituted condemnation proceedings, valuation would be at the time the order of taking was entered and not the date of the first trespass. Why should there be another valuation date when the owner forces the acquisition by inverse condemnation? The result today encourages those with the power of eminent domain to avoid the statutory proceedings, thereby forcing the property owner to seek redress. And, when the property owner does seek redress for the unlawful appropriation of his land, he will be paid in today’s dollars for what the property was worth years ago. Since this will not afford the property owner “full” compensation, I would hold that the trial court properly instructed the jury to value the property as of the date of trial.

      . The county also urges that we reconsider the inverse condemnation remedy in light of the waiver of sovereign immunity. We approved this proceeding in our prior ruling and we decline to reconsider that issue in this appeal. See, e.g., State Dep’t. of Transp. v. Florida East Coast Ry. Co., 275 So.2d 289 (Fla. 3d DCA 1973).

      . Art. X, § 6(a), Fla. Const.

      . See §§ 73.041 and 73.071(2), Fla.Stat. (1981).

      . Counsel stipulated in this case that an MAI appraiser would testify that as of 1976, the fair market value of Pickens’ property was $35,750, and at trial Pickens’ expert testified that it was worth $80,300 in 1981.

      . See generally 29A C.J.S. Eminent Domain § 185 (1965); 26 Am.Jur.2d Eminent Domain § 152 (1966); Annot., 2 A.L.R.3d 1038 (1965).

      . See Worth v. City of West Palm Beach, 101 Fla. 868, 132 So. 689 (1931); Casa Loma Springs Dev. Co. v. Brevard County, 93 Fla. 601, 112 So. 60 (1927); see also United States v. Clarke, 445 U.S. 253, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980).

      . Yoder v. Sarasota County, 81 So.2d 219 (Fla. 1955).

      . City of Miami v. Coconut Grove Marine Properties, Inc., 358 So.2d 1151, 1154 (Fla. 3d DCA 1978).

      . Stewart v. City of Key West, 429 So.2d 784 (Fla. 3d DCA 1983); see Brooks-Scanlon Corp. v. United States, 265 U.S. 106, 44 S.Ct. 471, 68 L.Ed. 934 (1924); Behm v. Division of Admin., Dep’t. of Transp., 383 So.2d 216 (Fla.1980); § 74.061, Fla.Stat. (1981).

      . The Whites discovered that the road was on their property and brought it to the attention of the Commissioner in December, 1957.

      . See Casa Loma Springs Dev. Co. v. Brevard County, 93 Fla. 601, 112 So. 60 (1927).


author: GRIMES, Judge.

text:
    In re The ESTATE OF Wilbur E. KULOW, Deceased.
    No. 82-2872.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1983.
    Rehearing Denied Oct. 26, 1983.
    M. Joseph Lieb, Jr. of Syprett, Meshad, Resnick & Lieb, P.A., Sarasota, for appellant State Farm Mut. Auto. Ins. Co.
    James W. Whatley of Kanetsky, Moore, DeBoer, Horlick & Whatley, P.A., Venice, for appellee Kulow.
   GRIMES, Judge.

This case involves a difficult interpretation of the nonclaim statute, section 733.-702(1), Florida Statutes (1981).

On September 9, 1981, Wilbur E. Kulow sustained serious personal injuries in a traffic accident which resulted in his death on December 13, 1981. Pursuant to the PIP and medical payments coverage of his automobile insurance policy, State Farm paid Memorial Medical Center in Savannah, Georgia, $28,430 for services and care rendered Mr. Kulow prior to his death. Apparently, most of the hospital’s bill was paid by Medicare and other collateral sources, resulting in an overpayment to the hospital in the amount of $28,412.71. State Farm alleges it was entitled to the benefit of the duplication of payments but that the hospital mistakenly refunded the entire overpayment to Mr. Kulow’s personal representative. State Farm asserts that it contacted the personal representative on April 19, 1982, and had further contact with her or her attorney on June 6, 1982, in unsuccessful efforts to obtain the overpayment.

In the meantime, the personal representative published the initial notice of administration on June 19, 1982. As a result, the last day for creditors to file claims against the estate pursuant to section 733.702 was September 19,1982. State Farm ultimately filed a statement of claim for the overpayment of insurance benefits on October 15, 1982. Four days later, the personal representative filed an objection to the claim and a motion to strike the claim as being untimely. Following a hearing, the probate court entered an order striking State Farm’s claim on the ground that it was not filed within the time prescribed by law. State Farm has appealed from this order.

On October 21, 1982, State Farm also filed an independent action in circuit court against the personal representative for reimbursement of the overpayment. Upon motion of the personal representative, the civil action has been stayed pending the outcome of this appeal.

At the outset we note a procedural problem. The Florida Probate Code seems to contemplate that the failure to properly file a claim could be raised as a defense to the independent civil action. However, State Farm did file a claim, albeit late, in the event that such filing was legally necessary under the requirements of the Code. State Farm attempted to persuade the trial court to find estoppel against the personal representative for having lulled State Farm into noncompliance. The personal representative filed an objection, and ultimately the trial court, sitting in its probate capacity, ruled that State Farm was foreclosed by the failure to timely file a claim. Since the applicability of the nonelaim statute has been fully argued on this appeal and because a resolution of this question will control that issue in the litigation now pending in the civil division, we will decide the point on the merits in order to enhance judicial economy. Cf. In re Estate of Williams, 381 So.2d 735 (Fla. 2d DCA 1980), in which this court affirmed the probate judge’s refusal to strike an untimely claim on the premise that the nature of the demand was not such as to be encompassed by the claim filing requirements of section 733.702(1).

The Florida Probate Code was adopted in large part from the Uniform Probate Code. Had Florida adopted in its entirety the applicable portion of the uniform code on limitations on presentation of claims, the question before us could be easily decided. Section 3-803(b) of the Uniform Probate Code provides:

(b) All claims against a decedent’s estate which arise at or after the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:
(1) a claim based on a contract with the personal representative, within four months after performance by the personal representative is due;
(2) any other claim, within 4 months after it arises.

Since this provision was not carried over into the Florida Probate Code, we must decide the case by interpreting section 733.-702(1) which reads as follows:

(1) No claim or demand against the decedent’s estate that arose before the death of the decedent, including claims of the state and any of its subdivisions, whether due or not, direct or contingent, or liquidated or unliquidated; no claim for funeral or burial expenses; no claim for personal property in the possession of the personal representative; and no claim for damages, including, but not limited to, actions founded on fraud or other wrongful act or omission of the decedent, shall be binding on the estate, on the personal representative, or on any beneficiary, unless presented:
(a) Within 3 months from the time of the first publication of the notice of administration, even though the personal representative has recognized the claim or demand by paying a part of it or interest on it or otherwise. The personal representative may settle in full any claim without the necessity of the claim being filed when the settlement has been approved by the beneficiaries adversely affected according to the priorities provided in this code and when the settlement is made within the statutory time for filing claims; or he may file a proof of claim of all claims he has paid or intends to pay.
(b) Within 3 years after the decedent’s death, if notice of administration has not been published.

State Farm contends that its cause of action was not of such a nature as to require the timely filing of a claim under this statute.

The personal representative argues that the court’s ruling can be sustained under either of two provisions of the statute. First, she contends that State Farm is making a “claim or demand against the decedent’s estate that arose before the death of the decedent.” She reasons that since the services for which payment was initially made to the hospital were rendered prior to Mr. Kulow’s death, State Farm’s claim arose before the death of the decedent. This argument is patently unsound. State Farm’s cause of action, if any, could not have arisen until its payment to the hospital and the hospital’s subsequent payment to the personal representative, both of which occurred well after Mr. Kulow died.

The personal representative’s second argument cannot be disposed of so easily. She contends that the funds which State Farm seeks are “personal property in the possession of the personal representative.” Since money is personal property and the funds are being held by the personal representative, the statute could be read to support her position. In response, State Farm seeks to place itself under the line of authority which holds that a statement of claim need not be filed by one who contends that he has equitable title to specifically identifiable property held by a personal representative. Those cases, however, are premised on the theory that the property never became part of the estate because it was held in trust by the decedent at the time of his death. Hodges v. Logan, 82 So.2d 885 (Fla.1955); Fisher v. Creamer, 332 So.2d 50 (Fla. 3d DCA), cert. dismissed, 336 So.2d 600 (Fla.1976). Moreover, there is also a question as to whether the funds are specifically identifiable property since the hospital’s check has been cashed and the money comingled with other estate funds. See Grossman v. Selewacz, 417 So.2d 728 (Fla. 4th DCA 1982).

Nevertheless, we believe that State Farm’s cause of action is not a “claim for personal property in the possession of the personal representative.” Under general definitions, section 731.201(4) of the Florida Probate Code states:

(4) “Claims” means liabilities of the decedent, whether arising in contract, tort, or otherwise, and funeral expenses. The term does not include expenses of administration or estate, inheritance, succession, or other death taxes.

State Farm’s cause of action cannot be deemed a liability of the decedent. Within the scope of the foregoing definition, it can be more nearly equated with an expense of administration since it did not exist even in contingent form until after Mr. Kulow’s death. We read “personal property in the possession of the personal representative” to mean assets of the decedent held by the personal representative which are claimed by others. The proceeds of the hospital check were not assets of the decedent. To accept the personal representative’s theory, if the check had not been written until after the time for filing claims had expired, State Farm would nevertheless be barred from prosecution by its failure to timely file a claim.

Despite the differences in wording of their respective probate codes, the courts of other jurisdictions have consistently held that claims of an analogous nature arising subsequent to the decedent’s death are not subject to the statutes of nonclaim. Drain v. Stough, 61 F.2d 668 (9th Cir.1932) (assessment on bank stock occurring after death); Brickey v. Lacy, 247 Ark. 906, 448 S.W.2d 331 (1969) (damages for wrongful eviction of lessee by decedent’s administrator); Sperry v. Tammany, 106 Cal.App.2d 694, 235 P.2d 847 (1951) (reimbursement of husband’s payment after wife’s death on mortgage executed by husband and wife on wife’s property); Burdick v. Kerkovecz, 81 Cal.App. 786, 254 P. 684 (1927) (recovery of down payment on real estate purchase contract upon default by vendor subsequent to decedent’s death); Wilmington Trust Co. v. Wright, 33 Del.Ch. 63, 90 A.2d 480 (1952) (claim for contribution under decedent’s indemnity agreement arising after death); Farris v. Edmondson, 187 Miss. 214, 192 So. 825 (1940) (usurious interest on promissory note paid to decedent-mortgagee’s administrator); Nathan v. Freeman, 70 Mont. 259, 225 P. 1015 (1924) (damages for failure to repair leasehold arising after death of lessee and lessor’s claim for reimbursement of payment of post-death taxes); In re Gifford’s Estate, 133 Neb. 331, 275 N.W. 273 (1937) (damages for breach of contract entered into during course of administration); Olsen v. First National Bank, 76 S.D. 605, 83 N.W.2d 842 (1957) (suit for constructive trust to establish obligation arising after decedent’s death).

While the court below properly ruled that State Farm’s statement of claim was untimely filed, we hold that State Farm was not required to file a claim in order to prosecute its cause of action.

REVERSED.

HOBSON, A.C.J., and THREADGILL, EDWARD F., Jr., Associate Judge, concur.


author: SCHWARTZ, Chief Judge.

text:
    K-MART ENTERPRISES OF FLORIDA, INC. and K-Mart Corporation, Appellants, v. William C. KELLER, Appellee.
    No. 81-2121.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Rehearing Denied Nov. 9, 1983.

      Joe N. Unger, Miami, for appellants.
    Headley & Headley; Highsmith & Strauss and Shelby Highsmith, Miami, for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

The defendant in a personal injury action appeals from a judgment entered on a jury verdict against it based upon its sale of a firearm in violation of the gun control provisions of the Omnibus Crime Control and Safe Streets Act. 18 U.S.C. § 922 (1976). We affirm.

Viewed in the appropriate light most favorable to the appellee, the record shows that on September 5, 1975, a man named William Knuck bought a .30-30 rifle from a K-Mart store in Hialeah, Florida. The clerk who sold him the firearm did not ask Knuck the questions contained in Firearms Transaction Record form 4473, provided to firearm retailers by the Bureau of Alcohol, Tobacco and Firearms, see 27 C.F.R. § 178.-124, to facilitate compliance with 18 U.S.C. § 922(d). That section of the Gun Control Act of 1968 forbids a dealer to sell a firearm

to any person knowing or having reasonable cause to believe that such person—
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
* * * * * * *
(3) is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201(v) of the Federal Food; Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954).

Accordingly, two of the questions on form 4473 asked:

Question A: Are you under indictment or information in any court for a crime punishable by prison for a term exceeding one year?
* * * * * sfc
Question D: Are you an unlawful user of marijuana or a depressant, stimulant, or narcotic drug?

While the K-Mart employee marked “no” to these inquiries, Knuck testified that, if asked, he would have responded truthfully that he was then in fact both the subject of a felony information in Dade County and an unlawful user of marijuana. On this basis, it clearly appears that he should not have been permitted to purchase the gun and that K-Mart acted unlawfully in selling it to him.

The events which culminated in the injury to the plaintiff in the present action occurred some six weeks later, on October 27, 1975. On that day, although he knew that his brother, Robert Knuck, was both an ex-heroin addict who was taking pills, and an alcoholic who had been drinking heavily earlier and was outright drunk at the time, William “lent” Robert a box of ammunition and the rifle he had purchased at K-Mart. After he had done so, he drove Robert to his car and then, because he thought it was a “good idea” in the light of Robert’s condition, followed his brother to the home of Robert’s estranged wife. At Robert’s request, William knocked on the front door. Robert’s wife opened it, saw Robert and slammed the door, whereupon Robert fired two shots from the .30-30 through the window and then proceeded to his father’s home a few blocks away. At that location, he took his sister and her young child hostage with the rifle. The police were called and many responded, among them the plaintiff William Keller, a Miami Springs officer. While Keller was secreted in the garage during the confrontation, Robert, described by his sister as then “drunk or stoned .. . [and as] quite an alcoholic, for a long time,” fired the gun two or three times through the kitchen door. One of the bullets struck Keller in the head, causing devastating personal injuries.

On this appeal, K-Mart does not seriously dispute the evidence that it was negligent per se in its sale of the firearm to William in contravention of See. 922(d)(1), (3). Decker v. Gibson Products Co. of Albany, Inc., 679 F.2d 212 (11th Cir.1982); Franco v. Bunyard, 261 Ark. 144, 547 S.W.2d 91 (1977); cf. Hetherton v. Sears, Roebuck and Co., 445 F.Supp. 294 (D.Del.1978), aff’d in part, rev’d in part, 593 F.2d 526 (3d Cir. 1979); see generally, de Jesus v. Seaboard Coast Line R.R. Co., 281 So.2d 198 (Fla. 1973); Florida Freight Terminals, Inc. v. Cabanas, 354 So.2d 1222 (Fla. 3d DCA 1978). Rather, it claims the right to a directed verdict in its favor on the ground that it was insulated from liability based on the “intervening” circumstances it states were so bizarre and “unforeseeable” that, as a matter of law, its conduct was not a legal cause of Keller’s injuries. We cannot agree.

Both because the rules have so recently been the subject of Judge Hub-bart’s comprehensive opinion in Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983) and because they become meaningful only in terms of their application to a particular factual-legal situation as it is perceived by the courts, Mozer v. Semenza, 177 So.2d 880 (Fla. 3d DCA 1965), there is no reason here to survey or expound upon the Florida law of proximate causation, foreseeability, intervening cause and the like. Three broad principles, however, are helpful in the resolution of the present controversy. First, these issues are ordinarily ones to be resolved by the trier of fact. E.g., Allen v. Babrab, Inc., 438 So.2d 356 (Fla.1983); Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977). Second, a tortfeasor need not be able to foresee — as it is necessarily impossible to foresee — the exact concatenation of events which has in fact ended in damage to another. Crislip v. Holland, 401 So.2d 1115 (Fla. 4th DCA 1981), rev. denied sub. nom. City of Fort Pierce v. Crislip, 411 So.2d 380 (Fla.1981). It is required only that the general “type of result,” Pinkerton-Hays Lumber Co. v. Pope, 127 So.2d 441, 443 (Fla. 1961), which has occurred fall within the scope of the danger or “risk” created by the negligent act in question. Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522 (Fla.1980). See, e.g., Mozer v. Semenza, supra (unforeseeable arson not intervening cause when harm to be prevented is risk of fire); Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 946 (Fla.1977) (same). Third, and perhaps most significant, these questions may be, and in this case are, answered by a statute in which the legislature has in effect “specif[ied] the type of harm for which a tortfeasor is liable.” Gibson v. Avis Rent-A-Car System, Inc., supra, at 386 So.2d 522. Applying these doctrines, we conclude that the jury could properly have found the shooting of Keller was the type of harm, or “within the risk” designed to be prevented by the Gun Control Act — the misuse of a firearm by an irresponsible purchaser — so that K-Mart’s non-adherence to that statute constituted a legal cause of the plaintiff’s injuries.

We need not look far for the reasons Congress enacted the Gun Control Act, the purposes the statute was to serve, or — to put it in Florida causation law terms — the “type of harm” it was meant to obviate. In Huddleston v. United States, 415 U.S. 814, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974), the Supreme Court quoted extensively from the legislative history in stating that, in enacting the statute:

Congress determined that the ease with which firearms could be obtained contributed significantly to the prevalence of lawlessness and violent crime in the United States. S.Rep. No. 1097, 90th Cong., 2d Sess. 108 (1968). The principal purpose of the federal gun control legislation, therefore, was to curb crime by keeping ‘firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.’ S.Rep. No. 1501, 90th Cong., 2d Sess. 22 (1968).
Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, and the Gun Control Act of 1968, are thus aimed at restricting public access to firearms. Commerce in firearms is channeled through federally licensed [dealers] in an attempt to halt mail-order and interstate consumer traffic in these weapons. The principal agent of federal enforcement is the dealer. He is licensed, §§ 922(a)(1) and 923(a); he is required to keep records of ‘sale ... or other disposition,’ § 923(g); and he is subject to a criminal penalty for disposing of a weapon contrary to the provisions of the Act, § 924.
.... Information drawn from records kept by dealers was a prime guarantee of the Act’s effectiveness in keeping ‘these lethal weapons out of the hands of criminals, drug addicts, mentally disordered persons, juveniles, and other persons whose possession of them is too high a price in danger to us all to allow.’ 114 Cong.Rec. 13219 (1968)....
From this outline of the Act, it is apparent that the focus of the federal scheme is the federally licensed firearms dealer, at least insofar as the Act directly controls access to weapons by users. [e.s.]

415 U.S. at 824-825, 94 S.Ct. at 1268-1269.

From these statements of legislative intent, it seems clear that the “risk of harm” Congress meant to prevent was just the “type” of conduct which occurred in this case. The injury took place as a direct result of K-Mart’s selling a “lethal weapon” to one whom Congress has determined to be incompetent to buy it j'ust because of the dangers to “us all,” including William Keller, by the likelihood of its being misused.

Since the irresponsibility and unpredictability of the recipient was the very reason that Congress forbade such a transfer of the firearm, it can make no difference that the danger was actually realized, as it almost invariably must be, in what would in other contexts be deemed an unanticipatable manner. As was said in Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3d DCA 1980), quoting from comment b to Restatement (Second) of Torts, § 449 (1965):

The happening of the very event the likelihood of which makes the actor’s conduct negligent and so subjects the actor to liability cannot relieve him from liability. The duty to refrain from the act committed or to do the act omitted is imposed to protect the other from this very danger. To deny recovery because the other’s exposure to the very risk from which it was the purpose of the duty to protect him resulted in harm to him, would be to deprive the other of all protection and to make the duty a nullity.

382 So.2d at 101. One who gives matches to a pyromaniac can hardly claim that it could not be exactly foreseen what or whom he might harm or in what strange manner or how long it might take him to light the fire. See American Mutual Liability Ins. Co. v. Buckley & Co., 117 F.2d 845 (3d Cir.1941); Bridges v. Dahl, 108 F.2d 228 (6th Cir.1939); Dickens v. Barnham, 69 Colo. 349, 194 P. 356 (1921); Binford v. Johnston, 82 Ind. 426, 42 Am.Rep. 508 (1882); McEldon v. Drew, 138 Iowa 390,116 N.W. 147 (1908); Carter v. Towne, 98 Mass. 567, 96 Am.Dec. 682 (1868); Cote v. Sears, Roebuck & Co., 86 N.H. 238, 166 A. 279 (1933); Henningsen v. Markowitz, 132 Misc. 547, 230 N.Y.S. 313 (N.Y.Sup.Ct.1928); Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957); Mendola v. Sambol, 166 Pa.Super. 351, 71 A.2d 827 (1950); Annot., Liability of seller of firearm, explosive, or highly inflammable substance to child, 20 A.L.R.2d 119 (1951).

In accordance with these principles, numerous cases have held that the criminal misuse of a firearm does not insulate the seller from liability arising out of a violation of similar provisions of the Gun Control Act. Decker v. Gibson Products Co. of Albany, Inc., supra; Franco v. Bunyard, supra; J.M. Fields Co. v. Smuckler, 385 So.2d 124 (Fla. 3d DCA 1980) (per curiam); see also, Hetherton v. Sears, Roebuck & Co., supra; Sosa v. Coleman, 646 F.2d 991 (5th Cir.1981); contra, Robinson v. Howard Brothers of Jackson, Inc., 372 So.2d 1074 (Miss.1979). We follow these decisions in this case.

K-Mart argues that even if it could be held liable if its illegal vendee, William, had himself fired the shot which injured Keller, his entrustment of the weapon to Robert legally intervened to preclude recovery. Again, we disagree. Congress did not want William to have the gun because he was deemed incapable—-as a result, inter alia, of his marijuana use—of handling it. Common experience teaches that one of the bases and manifestations of such a lack of judgment is the danger of letting someone else have possession of the gun who is similarly incapable. That is just what happened here. William deliberately gave it to Robert although he knew of his brother’s drunken state and mental condition. That William would commit such an act was, to revert to the prior analysis, directly within the “scope of the risk” which would not have arisen if K-Mart had obeyed the statutory directive not to sell him the rifle in the first place.

Turning the coin over, Robert was, if anything, markedly less competent than William to be entrusted with the gun. An “intervening” act which does not change the nature of the risk created by the tort-feasor—as when one child gives a dangerous object to another—does not break the causal chain. See Collins v. Arkansas Cement Co., 453 F.2d 512 (8th Cir.1972); Spires v. Goldberg, 26 Ga.App. 530,106 S.E. 585 (1921); Pudlo v. Dubiel, 273 Mass. 172, 173 N.E. 536 (1930); Poe v. Canton-Mansfield Dry Goods Co., 36 Ohio App. 395, 173 N.E. 318 (1929); Wassel v. Ludwig, 92 Pa. Super. 341 (1928); Annot., Liability of person permitting child to have gun or leaving gun accessible to child, for injury inflicted by the latter, 68 A.L.R.2d 782 (1959). Thus, it would be immaterial if William had given the gun to Robert, who fired it in an armed robbery in which they were both involved. A fortiori, it cannot avail the defendant that William gave it to him under circumstances which actually increased the likelihood that the harm the statute was meant to preclude would, as it did, come to pass.

We have carefully examined the appellant’s other contentions and likewise find no error.

Affirmed.


author: PER CURIAM. FERGUSON, Judge

text:
    The STATE of Florida, Appellant, v. Jose PRIETO, Appellee.
    No. 82-400.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Rehearing Denied Nov. 7, 1983.

      Jim Smith, Atty. Gen., and Paul Mendel-son and William Thomas, Asst. Attys. Gen., for appellant.
    Ira L. Dubitsky, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The defendant was charged with kidnapping, robbery, and carrying a concealed weapon. Following a jury trial, he was found guilty of kidnapping and carrying a concealed weapon. The defendant filed a motion for a new trial alleging, among other grounds, that: (1) it was error to deny the defendant’s motion for a continuance; (2) a mistrial should have been granted because of the arresting officer’s impermissible comments on defendant’s silence; and (3) a mistrial should have been granted based on the trial court’s improper communication with the jury outside the presence of defense counsel. The trial court found that the cumulative effect of these errors required that the defendant’s motion for a new trial be granted. This appeal by the state ensued.

The granting of a motion for a new trial is an exercise of the broad discretion of the trial judge, State v. Woodson, 330 So.2d 152 (Fla. 4th DCA 1976), and a stronger showing is required to upset an order granting a new trial than is required to overturn an order denying a new trial. Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975). This court’s standard of review is to determine whether the lower court abused its discretion. State v. Bowie, 318 So.2d 407 (Fla. 4th DCA 1975); State v. Riggins, 314 So.2d 238 (Fla. 4th DCA 1975), cert. denied, 333 So.2d 464 (Fla. 1976). Finding that it did, we reverse.

The first basis upon which the judge granted a new trial was that he had erroneously denied the defendant’s motion for a continuance. Three days prior to trial, defense counsel made the motion on the basis that he had learned only several days earlier that the deposition of one of the state’s witnesses had not been transcribed. Defense counsel claimed that without reviewing the deposition, he would be deprived of the ability to effectively impeach that witness’ testimony.

Because the relevant deposition was never transcribed, the defense was asking the trial court, by its motion for new trial, to engage in speculation as to whether the defendant had been prejudiced. By doing so, the defense failed to meet its burden of establishing that the denial of the motion for a continuance was an abuse of discretion. Edwards v. Pratt, 335 So.2d 597 (Fla. 3d DCA 1976). On our review, then, we find that it was an abuse of discretion for the trial court to grant a new trial on this basis.

The second error recited in the trial court’s order granting a new trial was the admission of comments pertaining to the defendant’s post-arrest silence. We agree with the defendant that generally a prosecutor is prohibited from commenting upon the defendant’s right to remain silent. However, the present case is similar to Williams v. State, 353 So.2d 588, 590 (Fla. 3d DCA 1977), cert. dismissed, 372 So.2d 64 (Fla.1979), wherein this court stated:

From the record, we find that the prosecutor was seeking to introduce a statement of the defendant into evidence, and it was necessary to first show that she had been properly warned of her constitutional rights, and that she knowingly and voluntarily waived those rights. The record fails to show that the defendant exercised her right to remain silent. Rather, the testimony shows that she did not seek to exercise the right to remain silent, and that her inculpatory state-merits were made freely, voluntarily and with full knowledge of her rights.

See also Ragland v. State, 358 So.2d 100 (Fla. 3d DCA), cert. denied, 365 So.2d 714 (Fla.1978). Similarly, in the present case, the arresting officer’s testimony established that Prieto never invoked his Fifth Amendment privilege against self-incrimination. Rather, it is clear that the defendant freely conversed with police, failing to answer only two questions out of the entire conversation. In Ragland, supra, we held that a comment upon the failure to answer a single question was not violative of appellant’s constitutional right when said right was not invoked. The same rationale is applicable here, and accordingly, we hold that the trial court abused its discretion in utilizing this as a basis for granting a new trial.

The third error relied upon by the defendant in support of his motion for a new trial was that the judge improperly communicated with the jury outside of the presence of defense counsel. During the deliberations, the jury requested to rehear the deposition of one of the witnesses. The judge responded that the jurors should rely on their own memories. Thereafter, the judge informed the attorneys of his communication and solicited objections from the parties. At that point, defense counsel sought to have the deposition read to the jury but did not move for a mistrial. When the impropriety of the judge’s communication was raised in the defendant’s motion for a new trial, the trial judge ruled that a mistrial should have been granted.

While we agree that the per se rule of Ivory v. State, 351 So.2d 26 (Fla.1977) would ordinarily mandate this result, such is not the case here because defendant failed to make a timely motion for a mistrial. See e.g., Clark v. State, 363 So.2d 331 (Fla.1978). Absent fundamental error, which was not present here, cf. Sanford v. Rubin, 237 So.2d 134 (Fla.1970), we find that the lower court improperly utilized this as a basis for granting a new trial.

Because we find that none of the errors relied upon by the lower court warrant a new trial, we reverse.

FERGUSON, Judge

(concurring).

I concur in the result but write separately to address two points which are certain to come before us again.

First, the majority cites to Ivory v. State, 351 So.2d 26 (Fla.1977), recognizing it as setting forth a rule that any communication between the trial judge and the jury in the absence of and without consent of the defendant’s counsel is reversible error per se where timely objected to. However, in Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, - U.S. -, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983), the Florida Supreme Court appears to have receded from Ivory, holding that such communications may constitute harmless error. Since the Ivory holding is not pertinent to this case, again we need not decide the question. See Turner v. State, 431 So.2d 328 (Fla. 3d DCA 1983).

More importantly, the challenged “communication” in this case was simply a denial by the court, in its discretion, of the jury’s request to have certain testimony read back by the stenographer. The mere denial of the request in the absence of defense counsel — unlike the giving of testimony or instructions in his absence — was not a communication as contemplated by Florida Rule of Criminal Procedure 3.410. The simple denial of a request for additional instructions or testimony in counsel’s absence is erroneous only where it constitutes an abuse of discretion. Here it was not.

      . Fla.R.Crim.P. 3.410 and Committee Note state:
      After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them such additional instructions or may order such testimony read to them. Such instructions shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

        Committee Note
      This is the same as former Rule 3.410, except that the former rule made it mandatory for the trial judge to give additional instructions upon request. The Committee feels that this should be discretionary.


author: BASKIN, Judge. HUBBART, Judge

text:
    Raymond T. KUHN, Robert George Hendrickson and David Alexander Kirkland a/k/a David Warner, Appellants, v. The STATE of Florida, Appellee.
    Nos. 82-466 to 82-468.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Rehearing Denied Nov. 7, 1983.

      Paul Morris and Stephen H. Rosen, Miami, for appellants.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Defendants Kuhn, Hendrickson & Kirkland, appeal convictions and sentences imposed by the trial court following the court’s acceptance of their pleas of no contest to charges of possession of marijuana. They reserve their rights to appeal the trial court’s rulings on motions presented to the court through stipulated facts. Kuhn appeals the denial of his motion to suppress; Hendrickson and Kirkland appeal the denial of their motions to dismiss. We reverse.

The stipulated facts disclose that at approximately 1:30 a.m. police officers Harrel-son and Pinder observed three pick-up trucks enter State Road # 5 from a private driveway. As they followed the trucks they heard a voice on the citizens’ band radio remark: “Slow down to 45. We have company.” The officers then heard: “When they go under a street light, see if they have anything on the roof. If they see where we came out, we’re in trouble.” A short time later two of the pick-up trucks stopped at the Howard Johnson’s Motor Inn in Key Largo. The officers, now accompanied by Detectives Owen and Hessman, proceeded to the Howard Johnson’s parking lot where Detective Owen saw defendant Kirkland walking in the parking lot. When Kirkland ran into the adjacent wooded area, Owen chased and caught him and then placed him under arrest. A “luggage bag” containing Kirkland’s identification was found in the cab of a pick-up truck. In the back of the pick-up truck were “various bales of marijuana.” Kirkland was not the registered owner of the truck and no evidence established that he had been in the truck.

In a separate parking lot, Officer Harrel-son found defendant Hendrickson seated in the cab of another pick-up truck. The back of this truck held eleven bales of marijuana. Harrelson claimed that he could smell marijuana; Hessman claimed marijuana could be seen through the truck windows. Pinder and Harrison, however, testified in their depositions that the beds of the trucks were covered by tarpaulins. The officers arrested Hendrickson although he had not been observed operating the vehicle and was not its registered owner.

Approximately half an hour later the officers stopped another truck at a store in Tavernier about ten miles from the Howard Johnson’s, and asked the driver, defendant Kuhn, for identification. When Kuhn stated that the truck belonged to Kirkland even though it was registered in Hendrickson’s name, the officers arrested Kuhn for conspiracy and took him to the police station. They removed Kuhn’s closed briefcase from behind the passenger seat of the pick-up truck and inventoried the contents at the police station. In it they found marijuana.

In reviewing an appeal from the denial of a sworn motion to dismiss, we must determine whether the undisputed facts relied upon by the state presented a prima facie case of guilt. See State v. Davis, 243 So.2d 587 (Fla.1971); however, the state contends that its traverse, filed in response to defendants’ sworn motion to dismiss, disclosed the existence of a material issue of fact precluding dismissal under Florida Rules of Criminal Procedure 3.190(c)(4) and 3.190(d). Thus, the state argues, the court properly denied the motion to dismiss. We reject the state’s assertion because we find that the state abandoned its traverse when it stipulated to the facts upon which the trial court subsequently relied in reaching its decision. See State v. Holliday, 431 So.2d 309 (Fla. 1st DCA 1983) (By stipulating to the amendment of defendants’ motions the state agreed it had no good faith dispute with the facts.).

Turning to the merits of defendants’ arguments, we first address Hendrickson’s appeal. According to the stipulation, Hen-drickson was found sitting in the cab of a truck. He did not have access to the rear portion of the truck in which the marijuana was located and the back of the truck was covered by a camper which Hendrickson could not enter from the cab. The stipulation is silent concerning whether Hendrick-son possessed the keys to the truck or whether the rear of the truck was, in fact, locked.

In order to establish a prima facie case of constructive possession of marijuana against Hendrickson, the state was required to demonstrate three elements: his ability to exercise dominion and control over the contraband; his knowledge of the presence of the contraband; and his awareness of the illicit nature of the contraband, Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981). We find that the state failed to overcome the first obstacle, the element of control. Even though the discovery of contraband in plain view of an occupant of premises might, under some circumstances, support a conviction predicated upon constructive possession, Brown v. State, 428 So.2d 250 (Fla. 1983); Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978), the ability to exercise control may not be inferred from ownership; it must be established by independent proof. Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967).

The decision of the supreme court in Brown is consistent with the decisions in Taylor v. State, 319 So.2d 114 (Fla. 2d DCA 1975) (marijuana in plain view, but defendant guest had no control over premises) and Metzger v. State, 395 So.2d 1259 (Fla. 3d DCA 1981) (no constructive possession by a guest who may not have been aware of the contraband). In Brown the contraband was scattered throughout the house, most of it in plain view. The obvious presence of the contraband and Brown’s joint possession of the premises, provided the opportunity for him to exercise dominion and control. As far as Hendrickson is concerned, however, the state failed to establish his ability to exercise dominion and control over the contraband which could not be reached from the cab of the truck. Cf. S.W. v. State, 431 So.2d 342 (Fla. 2d DCA 1983) (beer found beneath juvenile’s feet in front seat of automobile sufficient to show ability to exercise control). The default in its proof defeated the state’s case.

Next, we address Kirkland’s appeal. According to the stipulation, the police officers arrested Kirkland when he ran from the Howard Johnson’s parking lot. Although the officers found his identification in a luggage bag in the cab of a pick-up truck, they were not able to state that he had been driving the truck. No keys were found and no evidence placed him in the truck with the marijuana. In fact, the stipulation states: “The police have no information or evidence ... that Kirkland was ever personally in the truck itself.” Under established law, the mere presence of Kirkland’s identification in a truck which held marijuana and the fact that he ran from the police were insufficient to establish a prima facie case of guilt. Cf. Falin v. State, 367 So.2d 675 (Fla. 3d DCA 1979) (no proof when defendant last in room or evidence that drugs had been present during time defendant was present). Again, the omission warranted dismissal.

As for Kuhn’s motion to suppress, we review the stipulated facts from a different perspective. We must determine whether the search, conducted without a warrant, was reasonable under constitutional standards. U.S. Const, amend. IV; Art. I, § 12, Fla. Const. The state attempts to justify the reasonableness of the station house search of Kuhn’s briefcase as a search incident to arrest. It contends that if the police had probable cause to arrest Kuhn they were entitled to search the vehicle as well as any luggage found in the vehicle when they returned to the station house as part of a search incident to the arrest. The state cites New York v. Belton, 453 U.S. 454,101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), in support of the search as incident to arrest and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), as authority for searching the vehicle and luggage at the police station. This very argument was rejected in Chambers however, when the Court held that a search conducted at a later time had to be supported by independent evidence of probable cause to conduct a search.

Whether a search conducted after the officers return to the police station is in fact incident to the earlier arrest was considered by the Court in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). In Preston the Court held that protection of the police and the preservation of the evidence justified a search incident to arrest. These purposes are no longer present when the search is conducted at a time , or place remote from the arrest; accordingly, such searches may not be legitimized as incident to arrest. See also, Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968).

The second district court of appeal recently sustained a similar search, Bond v. State, 431 So.2d 343 (Fla. 2d DCA 1983), upon the premise that it was a search incident to arrest and therefore rested upon traditional probable cause requirements. A search incident to an arrest, however, need not be supported by probable cause to search, see United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467,28 L.Ed.2d 427 (1973). We believe Bond’s reliance on Belton to legitimize a station house search is misplaced. See also, Meyers v. State, 432 So.2d 97 (Fla. 4th DCA 1983); Long v. State, 422 So.2d 72 (Fla. 2d DCA 1982). But see State v. Calegar, 104 Idaho 526, 661 P.2d 311 (1982). In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Court dealt with the scope of a search supported by probable cause. Its citation lends no support to appellee’s argument because this search was conducted at a remote place and, unless incident to arrest, required either a warrant or probable cause to believe the briefcase found in the truck contained contraband. No such evidence existed.

Evidence obtained from the belated search of Kuhn’s briefcase at the police station should have been suppressed because the search was neither incident to an arrest nor based upon probable cause coupled with exigent circumstances which would have obviated the need to obtain a search warrant. Furthermore, the search cannot be upheld as an inventory search because the state failed to show that the police complied with the requirements of Miller v. State, 403 So.2d 1307 (Fla. 1981).

In summary, the warrantless search of Kuhn’s briefcase was reasonable if conducted incident to arrest at the scene of the arrest; or at the station if based upon probable cause to believe the briefcase contained contraband; or if conducted as an inventory search in accordance with requirements of law. The search of Kuhn’s briefcase met none of the required standards and the court should have suppressed the evidence.

For these reasons, we reverse the orders entered by the trial court and remand the cause with directions to discharge all defendants.

HUBBART, Judge

(concurring in part; dissenting in part).

I agree entirely with the court’s opinion herein, save for its reversal of the defendant Kuhn’s conviction based on the search and seizure claim. I think the warrantless police search of Kuhn’s pickup truck was based on probable cause and thus was constitutionally reasonable under the Carroll moving vehicle exception to the search warrant requirement rule. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), adopted in toto by § 933.19 Fla. Stat. (1981); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Adoue v. State, 408 So.2d 567, 571-72 (Fla.1981); Collins v. State, 65 So.2d 61 (Fla.1953).

The probable cause for the search of the defendant’s pickup truck was ample in this case. It consisted of the following: (1) the defendant was observed by police traveling in a pickup truck in tandem with two other trucks, (2) a suspicious radio transmission was overheard which was sent by an occupant of one of the three trucks indicating that the subject trucks contained something which the occupants wished to hide from the police, and (3) two of the other trucks were subsequently stopped by the police, searched, and marijuana seized therefrom. It seems elementary to me that given this showing the police had a reasonable basis to believe that the third truck in this tandem [i.e., the defendant’s truck] also contained marijuana, and were therefore justified in stopping and searching the defendant’s truck. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Gillum, 428 So.2d 755 (Fla. 2d DCA 1983); Mansfield v. State, 389 So.2d 292 (Fla. 3d DCA 1980); Cameron v. State, 112 So.2d 864, 873 (Fla. 1st DCA 1959).

All else follows from the above probable cause showing. The police were thereafter justified in searching the briefcase seized from the subject truck under the Carroll ■ moving vehicle exception to the search warrant requirement rule. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Boykin v. State, 421 So.2d 538 (Fla. 5th DCA 1982). And the police were also justified in conducting this search at the police station, rather than at the point where the subject truck was stopped, under the same moving vehicle exception to the search warrant requirement rule. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Mattson v. State, 328 So.2d 246 (Fla. 1st DCA 1976). I find the court’s contrary legal analysis of the search issue singularly unpersuasive as it does not even address the applicability of the Carroll moving vehicle exception to the search warrant requirement rule.

I would therefore reverse the convictions of the defendants Hendrickson and Kirkland for the reasons stated in the court’s opinion. I would, however, affirm the defendant Kuhn’s conviction on the ground that the trial court properly denied Kuhn’s motion to suppress the marijuana seized from his pickup truck.

      . Rule 3.190(c) states in part:
      However, the court may at any time entertain a motion to dismiss on any of the following grounds:

      (4) There are not material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. The facts on which such motion is based should be specifically alleged and the motion sworn to.

      . Rule 3.190(d) states:
      Traverse or Demurrer. The State may traverse or demur to a motion to dismiss which alleges factual matters. Factual matters alleged in a motion to dismiss shall be deemed admitted unless specifically denied by the State in such traverse. The court may receive evidence on any issue of fact necessary to the decision on the motion. A motion to dismiss under (c)(4) of this rule shall be denied if the State files a traverse which with specificity denies under oath the material fact or facts alleged in the motion to dismiss. Such demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.

      .In the proceedings before the trial court, counsel repeatedly referred to the sworn motion as a motion to dismiss. Consequently, his contention that the motion should be reviewed as a motion for judgment of acquittal lacks merit.


text:
    William Joseph MEAGHER, a/k/a William Joseph Mayher, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1202.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Rehearing Denied Nov. 7, 1983.
    McGhee & Sharpe and Vincent McGhee, Miami, for appellant.
    Jim Smith, Atty. Gen., and Marti A. Rothenberg, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Ferguson v. State, 417 So.2d 631 (Fla.1982).


author: FERGUSON, Judge.

text:
    NORTH DADE GOLF, INC., d/b/a North Dade Country Club, Appellant, v. Donald CLARKE, Appellee.
    No. 82-1453.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Rehearing Denied Nov. 9, 1983.

      Jeanne Heyward, Miami, Millard C. Glan-cy, North Miami, for appellant.
    Friedman & Miller, and Robert Miller, North Miami Beach, for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Plaintiff, Donald Clarke, filed suit against defendant, North Dade Golf, Inc., to recover damages for personal injuries allegedly sustained by him while playing golf. Plaintiff claimed to have been injured when he drove a golf cart over a 10-inch deep hole in a paved path running along the rough of the course. It was alleged that North Dade negligently allowed a deep hole to exist on the course, failed to repair, barricade or place warning devices around the hole, and was strictly liable for allowing an ultra-hazardous condition to remain.

The incident occurred in the late morning when Clarke and his golf partners had completed an 18-hole game. Plaintiff testified that he had proceeded about 25 to 30 feet down the concrete pathway at a speed between 8 and 10 miles per hour when he “apparently ... spilled off the path” into the rough area of the golf course. The hole which caused the spill was on the edge of the concrete pathway designed for golf carts.

After striking the hole, the cart continued forward about 10 feet, causing plaintiff to be severely jostled. Clarke testified that immediately after this event, he felt pain in the shoulder, back and leg, and chest pain similar to pain he had experienced two years before when he suffered a prior heart attack. He was hospitalized that afternoon, and while still hospitalized, seven days later, he had the subject (second) heart attack. Much of the testimony at trial centered around the causal relationship between the golf cart incident and plaintiff’s second heart attack.

At the close of the trial, the jury returned a verdict which read in pertinent part:

1. Was there negligence on the part of the Defendant, NORTH DADE GOLF, INC., d/b/a NORTH DADE COUNTRY CLUB, which was a legal cause of damage to the Plaintiff, DONALD CLARKE:
YES_ NO X
If your answer to Question 1 is No, your verdict is for the Defendant and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to Question 1 is YES, your verdict is for the Plaintiff. Please answer Question 2.

The jury thus found for the defendant on the combined questions of negligence and legal causation. Plaintiff then moved for judgment notwithstanding the verdict and/or for new trial, claiming the jury verdict was contrary to the manifest weight of the evidence. The trial judge granted plaintiffs motion for new trial and made extensive findings in his five-page order, whereupon defendant brought this appeal.

The issue for review is whether the trial court abused its discretion in granting plaintiff a new trial on the ground that the verdict of no liability was against the manifest weight of the evidence. A trial court clearly has broad discretion in granting such motions, and its ruling should not be disturbed absent a clear showing that this discretion has been abused. Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959). On review of the record there is no clear showing that the court abused its discretion in granting a new trial on the issues of negligence and legal causation with respect to the orthopedic injuries.

We do find, however, that the trial court abused its discretion in granting a new trial on the issue of whether the heart attack was causally related to the golf cart incident. A trial court’s discretion in this area is clearly not unbridled, see, e.g., Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978), and a trial judge is not authorized to act as a “seventh juror”, id. at 435, or to substitute his judgment for that of the jury on disputed questions of fact. Kinsey v. Kelly, 312 So.2d 461, 462 (Fla. 1st DCA 1975), cert. denied, 333 So.2d 463 (Fla.1976). Here, the defendant offered competent evidence to dispute the allegation that defendant’s negligence was the cause of plaintiff’s heart attack, and it cannot be said that the jury, as reasonable persons, could not have concluded otherwise.

Appellee, therefore, is entitled to a new trial only on the issue of whether there was negligence on defendant’s part which caused plaintiff’s orthopedic injuries. See § 59.35, Fla.Stat. (1981) (in reversing order of lower court, appellate court may direct that a new trial be had on all the issues shown by the record or upon a part of such issues only). See also Webb Furniture Co. v. Everett, 105 Fla. 292, 141 So. 115 (1932); Turner v. Lorber, 360 So.2d 101 (Fla. 3d DCA 1978) (new trial granted only on issues of comparative negligence and damages).

Affirmed in part, reversed in part, and remanded with directions to enter judgment for defendant on the issue of causal relation between the golf cart incident and the heart attack, and to conduct a new trial on the remaining issue.

      . The first heart attack followed a game of tennis and was attributed to a natural progression of coronary artery disease. Two specialists gave conflicting opinions as to whether the second heart attack was causally related to the golf cart incident.


author: BASKIN, Judge.

text:
    Wallace Jerome PORTER, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2434.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Rehearing Denied Nov. 7, 1983.

      Bennett H. Brummer, Public Defender and Carl L. Masztal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Appellant Wallace Porter was tried and convicted of first degree murder and kidnapping. His appeal led to our ruling that the trial court erred in admitting certain statements Porter made to police. We also held that the trial court failed to determine that other statements had been made voluntarily. Accordingly, we reversed Porter’s convictions, remanded the cause for a determination as to whether those statements had been given voluntarily and we ordered a new trial. Upon remand the trial court decided that Porter’s statements had been made freely and voluntarily. Porter was then tried and convicted of manslaughter and kidnapping.

In this appeal Porter takes issue with the trial court’s ruling admitting the statements. In addition, he maintains that the trial court erred in extending the speedy trial period based upon exceptional circumstances resulting from the fact that two detectives who were scheduled to testify at Porter’s trial were themselves on trial in federal court. We find no merit in either contention and affirm.

The trial court decided the issue of voluntariness upon the transcript of the initial hearing on the motion to suppress the statements and some additional testimony. The court provided Porter with an opportunity to present other evidence, but Porter declined to do so. Viewing the evidence most favorably to the trial court’s ruling, State v. Nova, 361 So.2d 411 (Fla.1978), we hold that the state carried its burden of proving by a preponderance of the evidence, Ross v. State, 386 So.2d 1191 (Fla.1980), that the confession was made voluntarily.

Next, we address the speedy trial question. Following Porter’s first appeal and the issuance of our mandate, he was entitled to be retried within 90 days. Our mandate was issued on March 16, 1982. However, on May 17, 1982, the state requested a continuance because the two detectives who were to testify at Porter’s retrial had been indicted and were in trial. If called to testify, they would invoke their Fifth Amendment privileges. Consequently, the trial court found that exceptional circumstances permitting an extension of time were present, Florida Rule of Criminal Procedure 3.191(f) and, over objection, continued the trial until August 30, 1982. On July 12, the trial court denied Porter’s motion for discharge, finding that exceptional circumstances were still present. Porter filed a demand for speedy trial on July 16, 1982, necessitating that he be brought to trial within 60 days, Florida Rule of Criminal Procedure 3.191(a)(2), but on July 20 the trial court announced continuing exceptional circumstances. On August 30, upon learning that the detectives were still in trial, the state filed a formal motion to extend the speedy trial period and the court again found exceptional circumstances. The court extended the speedy trial time to October 21, 1982. On September 24 and on October 15, the trial court denied motions for discharge. Trial was held on October 19, 1982 and resulted in a jury verdict finding Porter guilty of manslaughter and kidnapping. Porter challenges both the form and the substance of the trial court’s orders extending the speedy trial period.

Extensions of times for commencing trial under the speedy trial rule are permitted by Florida Rule of Criminal Procedure 3.191(d)(2), which states:

(d)(2). When Time May Be Extended. The periods of time established by this Rule may be extended provided the period of time sought to be extended has not expired at the time the extension was procured. . Such an extension may be procured: (i) upon stipulation, announced to the court or signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, or (ii) by written or recorded order of the court on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined in section (f), or (iii) by written or recorded order of the court with good cause shown by the accused, or (iv) by written or recorded order of the court for a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pre-trial motions, for appeals by the State, and for trial of other pending criminal charges against the accused.

The rule permits an extension by written or recorded order of the court on its own motion. The order need not contain the word “extension” in order to be valid, see Strapp v. State, 435 So.2d 924 (Fla. 1st DCA 1983), if it informs the parties of the effect of the court’s ruling. Although the trial court may not find retroactively that an earlier continuance was predicated upon exceptional circumstances, Strapp; Durrance v. Rudd, 398 So.2d 1012 (Fla. 1st DCA 1981), an earlier finding of exceptional circumstances may be extended.

Porter asserts that the trial court erred in declaring exceptional circumstances. He contends that the detectives’ invocation of the Fifth Amendment would not have rendered them unavailable. We disagree. Whether or not the state met the unavailability of testimony test of Rule 3.191(f)(3), see generally, United States v. Dichne, 612 F.2d 632 (2nd Cir.1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1314, 63 L.Ed.2d 760 (1980), it satisfied Rule 3.191(f)(4) by showing a necessity for delay based upon developments which were not anticipated but which would materially affect the trial. Accordingly, we find no error in the trial court’s finding of exceptional circumstances.

For these reasons we affirm the convictions.

      . Porter v. State, 410 So.2d 164 (Fla. 3d DCA 1982).

      . (f) Exceptional Circumstances. As permitted by (d)(2) of this Rule, the court may order an extension of the time periods provided under this Rule where exceptional circumstances are shown to exist. Exceptional circumstances shall not include general congestion of the court’s docket, lack of diligent preparation or failure to obtain available witnesses, or other avoidable or foreseeable delays.
      Exceptional circumstances are those which as a matter of substantial justice to the accused or the State or both require an order by the court: Such circumstances include (1) unexpected illness or unexpected incapacity or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial; (2) a showing by the State that the case is so unusual and so complex, due to the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation or preparation within the periods of time established by this Rule; (3) a showing by the State that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time; (4) a showing by the accused or the State of necessity for delay grounded on developments which could not have been anticipated and which will materially affect the trial; (5) a showing that a delay is necessary to accommodate a co-defendant, where there is reason not to sever the cases in order to proceed promptly with trial of the defendant; (6) a showing by the State that the accused has caused major delay or disruption of preparation of proceedings, as by preventing the attendance of witnesses or otherwise.


text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Jose HERRERA and Adelma Herrera, Appellees.
    No. 83-148.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Rehearing Denied Nov. 7, 1983.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Bradford A. Thomas, Miami, for appellant.
    Maguire & Friend and Michael Maguire, Coral Gables, for appellees.
    Before HUBBART, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Lumbermens Mutual Casualty Company appeals an adverse final judgment entered below in a declaratory decree action. The trial court declared that the personal injury protection deductibles were- invalid in the insurance policy which had been purchased by the insured Jose and Adelma Herrera from Lumbermens Mutual Casualty Company. The record affirmatively establishes that the agent who sold the insurance policy to the Herreras offered no oral explanation concerning the PIP deductibles, that the Herreras had no other applicable coverage, and that the Herreras did not inform the agent of this fact. The insured Jose Herrera did, however, sign a Spanish document at the time he purchased the subject PIP insurance. Translated into English, this document reads:

“According to the information which was given to you and instructions, we are processing an application, an insurance application for personal insurance protection, PIP, with a deductible of $4,000, which should be covered by you or by some other kind of insurance before the benefits of the PIP, before they start to be effective.” R. 31

We hold that this document fails to satisfy the statutory duty imposed upon the insurer to explain PIP deductibles under Section 627.739(1), Florida Statutes (1981), which reads:

“(1) Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, $1,000, $2,000, $3,000, $4,000, $6,000 and $8,000, said amount to be deducted from the benefits otherwise due each person subject to the deduction, and shall explain to each applicant or policyholder that if they have coverage under private or governmental disability plans, they may avail themselves of deductibles or other modifications as provided in subsections (1), (2), and (3).” (emphasis added)

The subject document in no way indicates to the insured, as required by law, that he may purchase PIP deductibles only if he has other applicable insurance coverage under private or governmental disability plans which insures him to the extent of the PIP deductible amount. Moreover, no oral explanation of these PIP deductibles was ever given to the insured. Absent such an explanation as required by statute, it is clear that PIP deductibles may not be sold and that such deductibles are invalid when, as here, the insured has no other duplicate insurance to cover the said deductibles. See Kwechin v. Industrial Fire & Casualty Co., 409 So.2d 28 (Fla. 3d DCA 1981). The final judgment under review is, accordingly,

Affirmed.

      . At his deposition, the insured Jose Herrera paraphrased, in Spanish, the Spanish-language document he had signed, and the translator rendered his words in English for the record. This is the only translation of that document presented in the record.


author: HANLON, MORTON J., Associate Judge.

text:
    Richard Eugene McKINNISS, Appellant, v. STATE of Florida, Appellee.
    No. 83-79.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1983.
    Rehearing Denied Oct. 26, 1983.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Públic Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   HANLON, MORTON J., Associate Judge.

Prior to trial appellant, Richard Eugene McKinniss, moved for the appointment of a psychiatric expert to assist his attorney in the preparation of his defense of a claim of insanity. The lower court denied his motion. We reverse.

Appellant’s attorney timely filed a Notice of Intention to Claim Insanity Defense, in which he alleged that at the time of the offense appellant was unable to determine right from wrong and did not know the nature and quality of his acts. Simultaneously counsel filed a Motion for Appointment of Psychiatric and Competency Exam, requesting that appellant be evaluated by three experts to determine his competency to stand trial and insanity. After a hearing, the court appointed one psychiatrist to determine appellant’s competency to stand trial and his sanity at the time of the offense.

Subsequently, appellant’s counsel filed a Motion to Compel Compliance with Rule 3.216, requesting that the court appoint no more than three nor fewer than two disinterested, qualified experts to examine appellant; and, in addition, demanding that a separate expert be appointed to assist appellant’s attorney in preparation of his defense. Fla.R.Crim.P. 3.216(d) and (a). In response to the motion, the court appointed two experts who were to report their findings directly to the court with copies sent to both attorneys, but ordered that those portions of the psychiatric reports evaluating appellant’s sanity at the time of the offense were to go only to appellant’s counsel. Appellant’s demand for a separate expert was denied.

Based on the specific directive within Florida Rule of Criminal Procedure 3.216(a), we hold that the trial court erred in denying the appointment of an expert solely to assist appellant’s counsel.

An examination of the language of Florida Rule of Criminal Procedure 3.216(a) indicates that the provision is mandatory. The rule provides in pertinent part that:

(a) When in any criminal case counsel for a defendant adjudged to be indigent or partially indigent, whether public defender or court appointed, shall have reason to believe that the defendant may be incompetent to stand trial or that he may have been insane at the time of the offense, he may so inform the court who shall appoint one expert to examine the defendant in order to„ assist his attorney in the preparation of his defense. Such expert shall report only to the attorney for the defendant and matters related to the expert shall be deemed to fall under the lawyer-client privilege.

The Fifth District has already addressed this provision in Hamilton v. Davis, 427 So.2d 1137 (Fla. 5th DCA 1983). We concur with its analysis that, if the defendant can meet the threshold factual issues, the rule gives no discretion to the trial court in acting to appoint an expert. The wording of the rule is straightforward and plain on its face. While the Fifth District has certified the question of the possibility of the trial court exercising some discretionary authority under the rule, we, nevertheless, agree with its current holding that compliance by the trial court is mandatory.

In the instant case appellant was represented by court-appointed counsel, who indicated a belief that appellant may be incompetent to stand trial or that he may have been insane at the time of the offense. Even as to the insanity defense, the trial court’s order that selected portions of the psychiatric reports be sent only to appellant does not satisfy the language that an expert “shall report only to attorney for the defendant” and that appellant’s evaluation “shall be deemed to fall under the lawyer-client privilege.” Cf. Pouncy v. State, 353 So.2d 640 (Fla. 3d DCA 1977) (doctrine of attorney-client privilege bars the state from deposing and calling as witnesses psychiatrists hired by the defendant for the sole purpose of aiding in preparation of an insanity defense). Neither the experts herein nor their reports were protected by the attorney-client privilege. Virtually all information, save a limited portion, regarding appellant’s mental condition was made equally available to both the prosecution and the court as well as the defense, negating any confidentiality for appellant and his counsel. The trial court’s order does not comply with the letter or the spirit of Florida Rule of Criminal Procedure 3.216(a).

Accordingly, we reverse appellant’s judgment and sentence and remand this cause for a new trial. We further direct that the trial court enter an order appointing one expert to examine appellant and to assist appellant’s attorney in the preparation of his defense.

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