
    Phillip Morris JONES, Appellant, v. STATE of Florida, Appellee.
    No. 70-404.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1971.
    Rehearing Denied Dec. 21, 1971.
    Delford P. Richey, Deerfield Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

ON PETITION FOR REHEARING

MANN, ROBERT T., Associate Judge.

Jones was not tried promptly, but there is no error in the record. Jones’ claim that he was prejudiced because one witness to the robbery was unavailable at the time of trial would make sense if Jones had called the witness. He did not. In fact, Jones’ conviction of robbery on the positive identification of him by the principal victim would be lawful even if the trial had been prompt and the state had elected to proceed without the second witness. Compare this case with Vargas v. State, Fla.App.1971, 252 So.2d 586, in which a defense witness was allegedly unavailable as a consequence of state delay. See also Dickey v. Florida, 1970, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26.

Petition for rehearing denied.

REED, C. J., and OWEN, J., concur.  