author: SHAW, Judge.

text:
    John Deavie ROBERSON v. STATE of Alabama.
    CR-00-2405.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.
    Rehearing Denied Aug. 9, 2002.
    Certiorari Denied May 16, 2003 Alabama Supreme Court 1012166.

      John D. Roberson, pro se.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   SHAW, Judge.

The appellant, John Deavie Roberson, was convicted of unlawful possession of marijuana in the first degree, a violation of § 13A-12-213(a)(2), Ala.Code 1975. He was sentenced to 10 years’ imprisonment. Roberson represented himself at trial, and he represents himself on appeal.

I.

First, Roberson contends that the evidence was insufficient to support his conviction. Roberson did not move for a judgment of acquittal at the close of the State’s case or at the close of all the evidence. Although Roberson filed a motion for a new trial, he did not allege in that motion that the evidence was insufficient to support his conviction; rather, he made several allegations regarding various errors he believed occurred during his trial, and he alleged that the verdict was “contrary to law” and “contrary to the weight of the evidence.” (C. 308.)

In Reed v. State, 717 So.2d 862 (Ala.Crim.App.1997), this Court held that the appellant’s motion for a new trial alleging that the verdicts were inconsistent, that they were contrary to the evidence, and that they were contrary to the law was not sufficiently specific to preserve for review the appellant’s argument that the evidence was insufficient to sustain his convictions. This Court stated that “[a] ‘scattergun’ approach in a motion for a new trial ‘does not squarely present to the trial court the issue of the sufficiency of the evidence; consequently, it is insufficient to preserve the issue for appellate review.’ ” Reed, 717 So.2d at 864, quoting Johnson v. State, 500 So.2d 69, 72 (Ala.Crim.App.1986). Similarly, Roberson’s motion for a new trial was not sufficiently specific to preserve for review his challenge to the sufficiency of the evidence.

Moreover, even if Roberson had preserved for review the issue of the sufficiency of the evidence, we would decide it adversely to him. “ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ ‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

The State’s evidence indicated that on May 10, 1995, law-enforcement officers obtained a search warrant for a mobile home on premises owned by Roberson’s family. The mobile home was believed to be occupied by Roberson. When the officers arrived on the premises to execute the warrant on May 11, 1995, they secured everyone on the premises, including Roberson and an unidentified female, who were not in the mobile home, but in a “travel trailer” next to the mobile home. While they were securing Roberson, officers saw marijuana in plain view in the travel trailer. When Roberson asked to be allowed to get something out of his vehicle, officers saw a cellular telephone and a large amount of cash in the vehicle. The officers then obtained two additional search warrants for the travel trailer and for the vehicle. The officers seized marijuana in both the trailer and the vehicle. The State also presented evidence indicating that Roberson had previously been convicted of possession of marijuana in the second degree (for personal use). This evidence was clearly sufficient to sustain Roberson’s conviction for unlawful possession of marijuana in the first degree.

II.

Roberson contends that the search warrants were deficient and that, therefore, the marijuana seized as a result of the execution of those warrants should not have been admitted into evidence. Although it is not entirely clear, as best we can discern, Roberson argues (1) that the initial search warrant for the mobile home was deficient because, he says, it was based on the hearsay of a confidential informant whose reliability was not established; (2) that the initial search warrant for the mobile home was deficient because, he says, the affidavit submitted in support of the warrant failed to aver when the confidential informant saw the narcotics at Roberson’s residence; (3) that the search warrant for the travel trailer was deficient because, he says, it did not describe with sufficient particularity the place to be searched; and (4) that there was a fatal variance between the affidavit submitted in support of the search warrant for the travel trailer and the search warrant itself.

Before trial, Roberson filed what he styled as a “Motion for Pre-Trial Determination of Admissibility of Evidence”— which the trial court treated as a motion to suppress — in which he requested that all the evidence seized as a result of the three search warrants be suppressed. As grounds for the motion, Roberson alleged that “the warrant” — -he did not identify which warrant — did not sufficiently describe the place to be searched and was, therefore, overbroad (C. 103), and that the officers searched the travel trailer pursuant to the initial search warrant by mistake and then later obtained the search warrant for that trailer to cover up their mistake. The trial court held a hearing on the motion and then denied it.

Roberson’s claims 1, 2, and 4, as set out above, were not preserved for review. Roberson did not include these claims in his pretrial motion to suppress. “ ‘The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.’ ” Culp v. State, 710 So.2d 1357, 1359 (Ala.Crim.App.1996), quoting Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). In addition, although it appears that Roberson raised these claims in his motion for a new trial, he did not object to the admission of the marijuana evidence at the time it was introduced. “Objections to the admission of evidence must be made when the evidence is offered, along with specific grounds to allow the trial court to rule.” Craig v. State, 616 So.2d 364, 366 (Ala.Crim.App.1992). “ ‘[A] motion for a new trial or a motion for a judgment of acquittal is not sufficient to preserve the issue where no timely objection was made at the time the evidence was offered and admitted.’ ” Greenhill v. State, 746 So.2d 1064, 1068-69 (Ala.Crim.App.1999), quoting Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989) (citations omitted in Newsome).

As to Roberson’s claim that the warrant for the search of the travel trailer did not sufficiently describe the place to be searched, we find this claim to be meritless. From our review of the testimony at the suppression hearing and of the search warrants, it appears that the initial search warrant was for the mobile home located on the southernmost portion of the premises behind the two houses; this mobile home was described at the suppression hearing as being bluish-gray with red trim. Both the affidavit and the search warrant for the mobile home described it as the “southernmost” mobile home located on property on the east side of Highway 201 approximately 0.9 miles north of the intersection of Highway 201 and Highway 93. The second search warrant — for the travel trailer — read, in part:

“Proof having this day been made before me, William G. Hightower, District Judge of Pike County, Alabama, that there is presently located in a residence occupied by John D. Robinson, aka John D. Roberson, and on its premises, including a Sentry safe at the end of a path leading from the residence, said residence being located on the east side of Alabama Highway 201 0.9 miles north of the intersection of Highway 201 and Alabama Highway 93 and being a white Concord travel trailer, the northernmost mobile home behind a blue-gray house and a red house on Highway 201 in Pike County, Alabama, controlled substances, namely, marijuana,
“You are commanded in the daytime or the nighttime within ten days to make immediate search of a residence occupied by John D. Robinson, aka John D. Roberson, and its premises, including a Sentry safe at the end of a path leading from the residence, said residence located on the east side of Alabama Highway 201-0.9 miles north of the intersection of Highway 201 and Alabama Highway 93 and being a white Concord travel trader, the southernmost mobile home behind a blue gray house and a red house on Highway 201 in Pike County, Alabama, for controlled substances and if you find the same or any part thereof, to bring it forthwith before me at my office at Troy, Alabama.”

(C. 17.)

“ ‘A warrant’s description of the place to be searched is not required to meet technical requirements or have the specificity sought by conveyanc-ers. The warrant need only describe the place to be searched with sufficient particularity to direct the searcher, to confine his examination to the place described, and to advise those being searched of his authority. An erroneous description of premises to be searched does not necessarily render a warrant invalid. The Fourth Amendment requires only that the search warrant describe the premises in such a way that the searching officer may “ ‘with reasonable effort ascertain and identify the place intended.’ ” United States v. Weinstein, 762 F.2d 1522, 1532 (11th Cir.1985) (citations omitted).’ United States v. Burke, 784 F.2d 1090, 1092 (11th Cir.1986), cert. denied, 476 U.S. 1174, 106 S.Ct. 2901, 90 L.Ed.2d 987 (1986).
“The test for determining the sufficiency of the description of the place to be searched is set out in Lyons v. Robinson, 783 F.2d 737, 738 (8th Cir.1985):
‘“The test for determining the sufficiency of the description of the place to be searched is whether the place to be searched is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched. United States v. Gitcho, 601 F.2d 369, 371 (8th Cir.) (citations omitted), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). Thus, where a search warrant contain[s] information that particularly identified the place to be searched, [many courts have] found the description to be sufficient even though it listed the wrong address. United States v. McCain, 677 F.2d 657, 660-61 (8th Cir.1982).’ ”

Helton v. State, 549 So.2d 589, 590 (Ala.Crim.App.1989). See also State v. Spivey, 675 So.2d 1335 (Ala.Crim.App.1994), and Grantham v. State, 580 So.2d 53 (Ala.Crim.App.1991).

In this case, the warrant described the place to be searched “with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort.” Although the warrant described the place to be searched first as the northernmost mobile home on the premises and then the southernmost mobile home on the premises, this inconsistency did not render the warrant deficient. After executing the first warrant at the southernmost mobile home on the premises and then discovering Roberson in the travel trailer — the northernmost mobile home on the premises — there is no doubt that the executing officers knew exactly which trailer the second search warrant applied to. Therefore, we find no error on the trial court’s part in denying Roberson’s motion to suppress.

III.

Roberson contends that he was denied discovery when, he says, the State failed to comply with the trial court’s discovery order. Specifically, he argues that the State did not provide him with a videotape of the premises that was made on the day the search warrants were executed and that was played for the jury during trial. Although it is not entirely clear, Roberson appears to contend that the State’s alleged failure to provide him with the videotape before trial “raise[s] questions of the videotape’s origins.” (Roberson’s brief at p. 20.)

The record reflects that, before trial, the trial court issued a discovery order that stated, in part:

“IT IS HEREBY ORDERED:
“1. The District Attorney or his representative shall produce or make available to the Defendant/Defendant’s attorney the following:
“(f). All physical evidence or documentary evidence which the Prosecution will offer into evidence in its case in chief, including any search warrant and search affidavits upon which the Prosecution will rely on in its case in chief.”

(C. 87.)

Rule 16.5, Ala.R.Crim.P., provides:

“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection; may grant a continuance if requested by the aggrieved party; may prohibit the party from introducing evidence not disclosed; or may enter such other order as the court deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.”

The record reflects that, just before trial commenced, the trial court asked the prosecutor if there was any evidence the State was planning to introduce that had not been provided to Roberson through discovery. The prosecutor responded that she had provided full discovery to Roberson. Roberson then stated that he had not received discovery in the present case, case no. CC-95-166, but only in other cases pending against him. The prosecutor stated, however, that the materials produced during discovery were for the present case. Roberson did not object to the alleged lack of discovery at that time, nor did he object to the introduction of the videotape at trial. In Pettway v. State, 607 So.2d 325 (Ala.Crim.App.1992), this Court stated:

“Rule 16[, Ala.R.Crim.P.,] does not exist in a vacuum; it is subject to the general principle that objections must be made in a timely fashion....
“A trial court should be informed of a party’s failure to comply with discovery procedures as soon as the aggrieved party is aware of the non-compliance. At a minimum, the aggrieved party must object to the undisclosed evidence at the time that evidence is offered and must state the specific grounds for the objection, ie., that the offending party failed to comply with the discovery order or some other aspect of Rule 16. See Roberson v. State, 595 So.2d 1310, 1316 (Miss.1992); State v. Moore, 731 S.W.2d 351, 353 (Mo.App.1987). The requirement of a timely objection simply gives the trial court the opportunity to take corrective action where such action is warranted, see State v. Willis, 438 So.2d 605, 613 (La.App.1983), and is in keeping with standard trial procedure and evi-dentiary rules.”

607 So.2d at 331. Because Roberson did not object to the admission of the videotape or to the State’s alleged failure to comply with the trial court’s discovery order, this issue was not preserved for review.

IV.

Roberson contends that he was denied the effective assistance of counsel. The record reflects that although Roberson represented himself at the trial, before trial' — specifically, at the pretrial suppression hearing — he was represented by counsel. Roberson argues that his counsel was ineffective at the suppression hearing because, he says, (1) counsel did not argue to the trial court that the search warrants did not describe with particularity the places to be searched and that, therefore, they were too broad even though he had included that claim in the motion to suppress; (2) counsel did not call witnesses to testify; (3) counsel did not inform him of the suppression hearing and, therefore, he was not present at the hearing; and (4) counsel was not, in fact, representing him, but “injected himself into the appellant’s case” without any court order appointing him.

The record reflects that the four specific claims of ineffective assistance of counsel Roberson presents on appeal were not included in his motion for a new trial. Although Roberson included in his motion for a new trial the general allegation that he “was denied a fair trial because, at his Pre-Trial Hearings on the admissibility of the illegally seized evidence, he was denied effective assistance of counsel, otherwise silent from appellate review” (C. 316), this general allegation was not sufficient to preserve the specific allegations for review.

In Ex parte Jefferson, 749 So.2d 406 (Ala.1999), the Alabama Supreme Court created an exception to the preservation requirement when a defendant asserts a claim alleging ineffective assistance of counsel. The Court held that a general claim of ineffective assistance of counsel may be sufficient to preserve for appellate review a more specific claim of ineffective assistance of counsel “[w]here the record on appeal reflects that trial counsel’s performance was so deficient as to fall below an objective standard of reasonableness.” 749 So.2d at 408. In Montgomery v. State, 781 So.2d 1007 (Ala.Crim.App.2000), this Court recognized that the exception carved out by the Alabama Supreme Court in Jefferson would be applicable in “only a minute number of cases” — those eases where counsel’s error is “so blatant and clear on the face of the record that there [is] no room for interpretation.” 781 So.2d at 1011. We held in Montgomery that we would “not stretch to find ineffective assistance of counsel in cases where the claim has not been addressed by the trial court,” and that if the record on appeal does not reflect on its face that counsel’s performance was so deficient as to fall below an objective standard of reasonableness, the preservation exception carved out in Jefferson would not apply. Id.

In this case, we find that Roberson’s four claims of ineffective assistance of counsel, which were not presented to the trial court in his motion for a new trial, do not fall within the preservation exception of Jefferson. The record does not reflect, on its face, that counsel’s performance at the suppression hearing was so deficient as to fall below an objective standard of reasonableness. Therefore, those claims are not properly preserved for review. See, e.g., Flowers v. State, 799 So.2d 966 (Ala.Crim.App.1999); and Montgomery, supra.

V.

Roberson contends that the trial court erred in not granting his request for a continuance and in not affording him an opportunity to prepare a defense. Specifically, Roberson argues that he was not given sufficient time before trial to review the records and files associated with his case and that he arrived “just minutes before the trial commenced.” (Roberson’s brief at p. 27.)

The record reflects that Roberson initially proceeded to trial without objection. However, during his opening statement, Roberson told the jury that when he arrived at the courthouse that morning, he was “under the impression that this here was going to be a hearing. I was brought here thinking that it was not to be a jury trial until I got here today.” (R. 30.) In addition, at the conclusion of the State’s case-in-chief, the following occurred:

“THE COURT: ... Mr. Roberson, do you have any evidence you wish to present?
“[Roberson]: Your Honor, which I have talked with you this morning, it’s virtually impossible for me to stand here and try to defend myself when I don’t have none of my witnesses.
“THE COURT: Well, now, Mr. Roberson—
“[Roberson]: I’m asking for an extension of a couple of days for some time to get my witnesses here for the trial today.
“THE COURT: Now, Mr. Roberson, you stated on the record earlier that you didn’t realize you were coming to court today for a jury trial?
“[Roberson]: Yes, sir.
“THE COURT: Let’s see. Here on June 7th of this year, I entered an order, and a copy of it was sent to you. The order reads, ‘The Court, having reviewed the legal file in this proceeding, hereby orders that the trial of this case is scheduled for the 9th day of July, which is today, 2001, 9:00 a.m. All parties and/or attorneys of record are ordered to appear for said trial.’ That gave you more than a month’s notice to be prepared and ordered you to be prepared today.
“Between that time and now, I appointed an attorney to represent you, an attorney which you have refused. He was here this morning. He was ready to go to trial to represent you. Again on the record, you have refused that attorney and have chosen to go forward representing yourself.
“So, do you have any evidence that you wish to present at this time?
“[Roberson]: I can’t defend myself. I don’t have any witnesses.
“THE COURT: That is no fault of the Court. That is your decision.
“[Roberson]: I asked for seven days in advance to this day here. That order was sent to you about three weeks ago.
“THE COURT: You don’t have any witnesses to call at this time?
“[Roberson]: I can’t subpoena witnesses. I didn’t have enough time. I talked with you about that this morning that I would like to have my witnesses here for the hearing today.
“THE COURT: Mr. Roberson, the Court disagrees. You have had time to subpoena witnesses. Do you have a witness to call at this time?
“[Roberson]: Yes, I have witnesses, but I don’t have a subpoena list that I can subpoena my witnesses for the trial today.
“THE COURT: Go ahead and call your first witness.
“[Roberson]: I thought this was going to be a hearing, not a jury trial today. That’s why I wasn’t prepared.
“THE COURT: Mr. Roberson, go ahead and call your first witness.
“[Roberson]: I don’t have any.”

(R. 86-88.) At that point, the trial court instructed the prosecutor to begin closing arguments.

As can be seen from the above-quoted portion of the record, Roberson requested a continuance on the ground that he did not have adequate time before trial to subpoena his witnesses because, he said, he did not know that the trial was going to be held that day. On appeal, however, Roberson argues that he should have been given a continuance because he did not have adequate time “to review the files and records” associated with the case. Therefore, the specific argument Roberson makes on appeal was not preserved for review.

We note, however, that the record indicates that Roberson had ample time to prepare for his trial, to subpoena witnesses, and to review whatever files and records he wanted to review. The search giving rise to the present charge occurred on May 11, 1995; the case was tried on July 9, 2001. It appears from the record that, during the pretrial stages of the case, in 1995 and 1996, Roberson was represented by five different attorneys, one of whom was retained by Roberson. However, it appears from the record that Roberson elected to represent himself in March 1996 when he filed a pro se motion requesting that various family members and friends be appointed as “cocounsel.” (C. 149-52.) Already imprisoned for 70 years on other charges, Roberson filed numerous pro se motions between 1996 and 2001. Three of those motions were filed between the June 7, 2001, order setting the trial date and the July 9, 2001, trial, and they showed, contrary to Roberson’s claim at trial, that he knew the case was set for a jury trial on July 9, 2001. In one of the motions, a motion for discovery, dated June 19, 2001, and stamped as filed in the circuit clerk’s office on June 21, 2001, Roberson specifically stated that he was requesting discovery “so as to allow adequate time for preparation for trial, set for July 9, 2001.” (C. 294.) In another motion, requesting a court reporter to be present at all times during the trial, Roberson specifically said that “[t]he court has set the matter for trial, for July 9, 2001.” (C. 298.) Finally, Roberson filed a notice of intent regarding his defenses for trial. Moreover, the record reflects that, beginning in 1996, Roberson also filed four pro se motions requesting that a trial date be set and/or demanding a speedy trial— on October 18, 1996, February 17, 1999, July 13, 2000, and December 16, 2000. Furthermore, the record reflects that Roberson arrived at the courthouse for trial 1 hour and 50 minutes before jury selection began (R. 9), not “just minutes” before the trial as Roberson alleges.

“ ‘ “A motion for a continuance due to a lack of time for adequate preparation is a matter entirely and exclusively within the sound discretion of the trial court and its ruling will not be reversed on appeal absent a [plain and palpable] showing of abuse.” Reynolds v. State, 539 So.2d 428, 429 (Ala.Cr.App.1988).... Moreover, “the reversal of a conviction because of the refusal of the trial judge to grant a continuance requires ‘a positive demonstration of abuse of judicial discretion.’ Clayton v. State, 45 Ala.App. 127, 129, 226 So.2d 671, 672 (1969).” Beauregard v. State, 372 So.2d 37, 43 (Ala.Cr.App.), writ denied, 372 So.2d 44 (Ala.1979).’ ”

Jackson v. State, 791 So.2d 979, 998 (Ala.Crim.App.2000), quoting Loggins v. State, 771 So.2d 1070, 1084 (Ala.Crim.App.1999), aff'd, 771 So.2d 1093 (Ala.2000)(emphasis added in hoggins).

Roberson has failed to show an abuse of discretion on the part of the trial court. The record indicates that Roberson knew a month in advance the date the case was set for trial and that he had ample time to prepare his defense. Therefore, we find no error on the part of the trial court in denying Roberson a continuance.

VI.

Roberson contends that he was prejudiced when the trial court forced him to appear in front of the jury in prison clothing.

The record reflects that the following occurred just before voir dire examination began, at approximately 10:50 a.m.:

“THE COURT: Now, earlier I gave you time to go get some regular clothes to wear in this case.
“[Roberson]: Your Honor, it’s virtually impossible for me to come here today to select a jury, get clothes and do all this here in just a couple of hours. I have a motion on the record asking the Court to have me back in Pike County seven days in advance. That would have gave me enough time to get my clothes and everything that I needed. I have been locked up now for six years. Their clothes don’t fit me. I need decent clothes for a jury. I’m just getting here today. I wasn’t here last week.
“THE COURT: So, it’s your intention to proceed the way you are?
“[Roberson]: It looks like I don’t have no rights.
“THE COURT: You have rights. I have given you the opportunity since 9:00 this morning to get some regular street clothes here. No one has left the courthouse to go do that for you. You informed me earlier that you would just go forward as dressed.
“[Roberson]: I would have to.”

(R. 8-9.) In addition, the record reflects that Roberson’s brother, Homer Roberson, his sister, Minnie Wilson, and his brother-in-law, Jeffrey Baker, were all present in the courtroom and could have easily gotten him different clothing for trial. Instead, Roberson chose to proceed to trial in his prison clothing.

“ ‘[A]n accused “may not remain silent and willingly go to trial in prison garb and thereafter claim error.” Hernandez [v. Beto, 443 F.2d 634,] 637 [(5th Cir.), cert. denied, 404 U.S. 897, 92 S.Ct. 201, 30 L.Ed.2d 174 (1971)]. The accused must take any and all precautionary steps to eliminate any possible prejudice in order to later complain of prejudice.’ Turner v. State, 473 So.2d 639, 641 (Ala.Cr.App.1985). Also, the accused is required to show that he was, in fact, compelled to wear the prison garb. Id.”

Perry v. State, 741 So.2d 467, 470 (Ala.Crim.App.1999). “[T]he element of compulsion is crucial in deciding whether an accused is deprived of due process when tried in identifiable prison clothing.” Turner v. State, 473 So.2d 639, 640-41 (Ala.Crim.App.1985).

In this case, Roberson was not compelled to appear before the jury in his prison clothes; rather, he was given an opportunity to obtain street clothes for trial, and he refused to avail himself of that opportunity. Clearly, he did not take any and all precautionary steps to eliminate any possible prejudice. Therefore, he cannot now complain that he was prejudiced by his appearance in prison clothing.

VII.

Roberson next contends that the record on appeal is not complete. His entire argument in this regard is as follows:

“Appellant filed motion in the trial court for correction and supplementation of the record on appeal. (Supplemental record 1-4), October 18, 2001, the trial court failed to respond to appellant’s timely and proper motion. Appellant filed at least five (5) motions in the Court of Criminal Appeals for the correction of the record on appeal timely and in the proper manner, pursuant to Rule 10(g), Alabama Rules of Criminal Procedure.”

(Roberson’s brief at p. 28.)

Despite Roberson’s meager argument, we note that, as Roberson concedes in his brief by actually citing to the supplemental record, a supplemental record was, in fact, filed with this Court in response to Roberson’s motion to supplement. Roberson’s motion to supplement the record was granted; there is nothing for this Court to review as to this claim.

VIII.

Roberson next contends that Pike County was not the proper venue for this case. Specifically, his argument is as follows:

“The court erred whereat [sic]; it is without jurisdiction or the proper venue in Pike County to hear Case Number CC-95-166. Said case was transferred to Coffee County, Alabama by order of Circuit Judge Thomas E. Head, November 20, 1995, Pursuant to Rule 10.1, Alabama Rules of Criminal Procedure, (C-114-115). That Rule 10.2(a) provides:
“ ‘A defendant loses the rights granted under Rule 10.1 by allowing a proceeding to commence or to continue without objection after becoming aware of grounds for change of place of trial.’
“This matter was change place of trial to Coffee County, by order of the court (C-114-115), according to the Rule; appellant lost the right when the matter commenced December 4, 1995. Appellant’s Coffee County jury heard the case, or reviewed the evidence during trial December 1995; without objection.”

(Roberson’s brief at p. 28.) Roberson did not present this claim to the trial court; therefore, it was not preserved for review. See, e.g., Reynolds v. State, 615 So.2d 94 (Ala.Crim.App.1992) (holding that an argument as to venue is waived if no objection is raised in the trial court).

Moreover, even if this issue had been preserved for review, we would decide it adversely to Roberson. The record reflects that, in addition to being indicted for unlawful possession of marijuana in the present case, case no. CC-95-166, Roberson was also indicted for seven counts of unlawful distribution of a controlled substance, case nos. CC-95-167 through CC-95-173. On November 20, 1995, Roberson filed a motion for a change of venue for the distribution cases, specifically listing only those case numbers, case nos. CC-95-167 through CC-95-173, in the motion. The trial court granted the motion, but mistakenly stated in its order transferring the cases to Coffee County “[t]hat said motion extends to Case No. CC-96-166, although said case is not enumerated in the caption.” (C. 114.) Roberson went to trial in Coffee County on the distribution charges and was convicted, but trial on the possession charge was postponed. (R. Supp. 20; C. 120.) On January 5, 1996, the Coffee Circuit Court entered an order transferring case no. CC-95-166 back to Pike County pursuant to Roberson’s oral request at his' sentencing hearing for the distribution cases. (C. 121.) Therefore, contrary to Roberson’s contention, case no. CC-95-166 was properly tried in Pike County.

IX.

Finally, Roberson contends that he was denied a speedy trial as a result of the six-year delay between the indictment and the trial.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court held that when determining whether an accused has been denied his right to a speedy trial, a court must look at: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant’s case.

The length of delay is measured from the date of the indictment or the date of the issuance of an arrest warrant — whichever is earlier — to the date of the trial. See, e.g., Mansel v. State, 716 So.2d 234 (Ala.Crim.App.1997). To trigger a speedy-trial analysis, the delay must be so excessive as to be “presumptively prejudicial.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. Unless the delay is presumptively prejudicial, there is no need to inquire into the other Barker factors. In this case, the delay from Roberson’s arrest on May 11, 1995, to the first day of his trial on July 9, 2001, was approximately 74 months. This was presumptively prejudicial and requires inquiry into the remaining Barker factors. See, e.g., Parris v. State, [Ms. CR-00-0406, August 31, 2001] — So.2d - (Ala.Crim.App.2001) (40-month delay was presumptively prejudicial).

Although the record does not show the reasons for all of the delays, it does reflect that many of the delays were caused by Roberson. As noted previously, Roberson was represented by five different attorneys during the pendency of the proceedings, all of whom withdrew from representing Roberson due to Roberson’s unwillingness to cooperate and/or his dissatisfaction with their representation. After Roberson elected to represent himself, he flooded the court with pro se motions, and various members of his family also purported to file motions on his behalf. One of Roberson’s motions involved allegations of judicial and prosecutorial misconduct and resulted in all of the judges in Pike County recusing themselves; a judge from another county had to be appointed to handle the case. As the State correctly points out in its brief to this Court, it took time for the new judge to familiarize himself with the case and to rule on Roberson’s numerous pro se motions. As noted previously, the case was, at one point, mistakenly transferred to another county and then, two months later, transferred back to Pike County. Moreover, the record reflects that the State filed only one request for a continuance throughout the pendency of the proceedings and that request was filed in the district court, before Roberson had even been indicted.

“To prevail on a speedy trial claim[, t]he accused must show purposeful and deliberate delay by the prosecuting authority.” Pierson v. State, 677 So.2d 830, 831 (Ala.Crim.App.1996). “‘“Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker.” ’ ” Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993), quoting McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981), quoting in turn Walker v. State, 386 So.2d 762, 763 (Ala.Crim.App.), rev’d in part and vacated in part, 860 F.2d 1091 (11th Cir.1988). Roberson has not even alleged, much less shown, that the delay was purposeful and deliberate on the part of the prosecutor. In fact, the record shows that virtually none of the six-year delay was attributable to the State, but that the majority of the delay was due to Roberson’s own actions.

As to the assertion of his right to a speedy trial, Roberson asserted his right four times, beginning in October of 1996. “Repeated requests for a speedy trial weigh heavily in favor of an accused.” Kelley v. State, 568 So.2d 405, 410 (Ala.Crim.App.1990).

Finally, as to the prejudice prong, although Roberson argues that he “was prejudiced by the delay,” he has failed to show how he was prejudiced. “Barker set out three interests that the right to speedy trial was intended to protect and by which the level of prejudice is to be measured: (1) ‘to prevent oppressive pretrial incarceration’; (2) ‘to minimize anxiety and concern of the accused’; and (3) ‘to limit the possibility that the defense will be impaired.’ ” Kimbrell v. State, 659 So.2d 1039, 1041 (Ala.Crim.App.1995), quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182. Because Roberson was incarcerated for his distribution convictions for the majority of the six-year delay, any pretrial incarceration cannot be considered prejudicial. See id. Moreover, Roberson has failed to allege, much less show, that his defense was impaired by the delay or that he suffered any anxiety or concern as a result of the delay.

After considering and weighing the four Barker factors, we conclude that Roberson was not denied his right to a speedy trial.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB and WISE, JJ., concur. BASCHAB, J., dissents, without opinion.

      . The record reflects that the trial court found Roberson to be indigent and appointed counsel to represent him. Roberson was represented by counsel during the pretrial stages of the case. However, Roberson eventually elected to represent himself. After this election, the trial court repeatedly informed Roberson that he had the right to counsel and reminded him that an attorney would be appointed to represent him, should he change his mind. Just before trial began, the trial court again advised Roberson to accept an appointed attorney, but Roberson refused. (R. 4-8.) Roberson indicated to the trial court that he understood his right to counsel, that he had proceeded pro se in two previous trials, and that he wanted to proceed pro se in this trial. After reviewing the record, we conclude that Roberson knowingly and voluntarily waived his right to counsel. See, e.g., Tomlin v. State, 601 So.2d 124 (Ala.1991).

      . There were two houses and three mobile homes or travel trailers on the premises.

      . In fact, the record affirmatively refutes two of Roberson’s claims. The transcript of the suppression hearing shows that, contrary to Roberson’s contention on appeal, he was present at the hearing. In addition, the record shows that Roberson's counsel at the hearing, Malcolm Newman, was actually retained by Roberson, in direct contradiction with Roberson's allegation on appeal that Newman was not actually representing him.

      . There is nothing in the record indicating that Roberson spoke with the trial court about witnesses before the trial began.

      . The record does not support Roberson’s assertion that he had no witnesses present. The record reflects that before the trial began, the trial court listed several names of people who were in the courtroom and asked the parties if either were going to call those people as witnesses. Roberson indicated that he was going to call one of those people as a witness on his behalf; the court then invoked the rule and excluded that witness from the courtroom.


source: Caselaw Access Project

license: Public Domain

text:
    James Farentino MADDEN v. STATE of Alabama.
    CR-01-0843.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.

      James Farentino Madden, pro se.
    William H. Pryor, Jr., atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   SHAW, Judge.

James Farentino Madden appeals the circuit court’s ruling on his Rule 32, Ala. R.Crim.P., petition for postconviction relief.

Madden filed the petition on September 10, 2001. On the Rule 32 form, Madden indicated that he had pleaded guilty on September 7, 2000, to theft of property in the first degree; that the trial court had sentenced him to 15 years’ imprisonment; that the sentence was split and he was ordered to serve 6 months in confinement; and that he did not appeal his conviction. As for the grounds raised in the petition, Madden cheeked the line on the Rule 32 form indicating that “[t]he trial court was without jurisdiction to render the judgment or to impose the sentence,” but he did not attach anything to the Rule 32 form setting forth the factual basis for this claim. (C. 5.) On the Rule 32 form, Madden also answered “yes” to question no. 10 asking if, other than a direct appeal, he had “previously filed any petitions, applications, or motions with respect to this judgment in any court, state or federal.” (C. 3.) Under question no. 11 on the form, asking what other petitions, applications, or motions he had filed, Madden stated that he had filed a “probation hearing” in the “Court of Appeals,” and that he had raised the ground that the “trial court lost jurisdiction to put defendant on probation after 30 days from date the 6-month sentence was completed, when sentencing order did not mention probation would follow after sentence was completed.” (C. 3.) On October 22, 2001, Madden filed a motion requesting that the circuit court grant his Rule 32 petition and set aside his conviction because the State had not filed a response to the petition within 30 days as required by Rule 32.7(a), Ala.R.Crim.P.

On November 27, 2001, the circuit court, apparently believing that Madden’s answers to question nos. 10 and 11 on the Rule 32 form were the grounds of Madden’s petition, issued the following order:

“This cause came before the court on a Rule 32 filed by the defendant. The defendant alleges this Court lost jurisdiction to place the defendant on probation because such order was entered more than thirty (30) days from the date of his original sentencing.
“The State failed to respond to the defendant’s Rule 32, as required by Rule 32.7(a).
“Because the State failed to respond, the defendant’s Rule 32 is GRANTED and the Court’s order of March 30, 2001, placing the defendant on probation, is RESCINDED. Consequently, the Court’s order imposing the defendant’s fifteen (15) year sentence is RESCINDED.
“The defendant’s request for his conviction to be set aside is DENIED.”

(C. 12.) On December 12, 2001, Madden filed what he styled as a “Motion to Clarify Order Denying Portion of Rule 32.” In that motion, he asked the court to clarify its order purporting to rescind his 15-year sentence and his probation, but denying his request to set aside his conviction. He stated that the circuit court had granted Rule 32 relief on claims he had not raised in his petition, and that he was “confused on how the court came up with its order or where these issues the court ruled on came from”; he requested that the circuit court “rule on the issues presented in the Rule 32.” (C. 16-17.) The circuit court denied the motion.

On appeal, Madden argues that the circuit court erred in granting Rule 32 relief on issues that were not raised in his petition, i.e., rescinding his 15-year sentence and his probation, and that the circuit court erred in not setting aside his conviction on the ground that the trial court lacked jurisdiction to accept his guilty plea. The State argues that the circuit court correctly rescinded its order placing Madden on probation because, it says, the court did not have jurisdiction six months after imposing sentence to modify the sentence by placing Madden on probation; that the circuit court improperly rescinded Madden’s 15-year sentence for the same reason; and that the circuit court properly denied Madden’s request to have his conviction set aside. We affirm the judgment of the circuit court in part, reverse in part, and remand with directions.

The circuit court properly denied Madden’s request to set aside his conviction on the ground that the trial court lacked jurisdiction to accept his guilty plea. As noted above, although Madden indicated on the Rule 32 form that he was challenging the trial court’s jurisdiction to accept his guilty plea, he did not attach anything to the form setting out the factual basis for his claim. Rule 32.3, Ala. R.Crim.P., states: “The- petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.” Rule 32.6(b), Ala.R.Crim.P., states: “The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.” Madden failed to satisfy the pleading requirements of Rule 32.3 and the specificity requirements of Rule 32.6(b). Therefore, the circuit court properly denied him relief on this claim.

The circuit court erred, however, in rescinding Madden’s 15-year sentence. Madden pleaded guilty to theft of property in the first degree, a Class B felony, see § 13A-8-3(c), Ala.Code 1975, punishable by “not more than 20 years or less than 2 years.” § 13A-5-6(a)(2), Ala.Code 1975. His 15-year sentence was within the statutory range and, therefore, was a valid sentence.

It appears, however, that the execution of that sentence, i.e., the manner in which the court split the sentence, may have been invalid. See, e.g., Havis v. State, 710 So.2d 527 (Ala.Crim.App.1997); Berry v. State, 698 So.2d 225 (Ala.Crim.App.1996); and Wood v. State, 602 So.2d 1195 (Ala.Crim.App.1992)(all recognizing that although a sentence may be valid, i.e., within the statutory range, the manner in which the sentence is ordered to be executed under § 15-18-8, Ala.Code 1975, may be invalid). Section 15-18-8, Ala. Code 1975, provides, in pertinent part:

“(a) When a defendant is convicted of an offense and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice -and the best interests of the public as well as the defendant will be served thereby, he or she may order:
“(1) That the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best .... ”

(Emphasis added.) The plain language of the statute indicates that a trial court can split a sentence only if the defendant is placed on probation for a definite period following the confinement portion of the split sentence. Indeed, this Court has recognized that “Application of § 15-18-8 necessitates suspension of that portion of the split sentence that is not actual confinement and placement of the convicted defendant on probation .... ” Hughes v. State, 518 So.2d 890, 891 (Ala.Crim.App.1987). In addition, “in view of the history and text of Amendment 38 [of the Alabama Constitution of 1901, from which a trial court’s power to suspend a sentence stems,] the power to suspend a sentence ... can only be exercised when coupled with an order for probation.” Holman v. State, 43 Ala.App. 509, 513, 193 So.2d 770, 773 (1966)(emphasis added).

In this case, the record indicates that Madden’s original sentence was split pursuant to § 15-18-8, but the record does not indicate whether the original sentence included a probationary term to follow the six-month term of confinement. The circuit court stated in its order that it had placed Madden on probation on March 31, 2001, over six months after September 7, 2000, the date Madden claimed he was sentenced. However, the circuit court did not state in its order whether Madden’s original sentence included a probationary term and the March 31, 2001, placement of Madden on probation was merely a formality, or whether the original sentence did not include a probationary term and the March 31, 2001, placement was a belated attempt to correct the improper execution of Madden’s sentence. In addition, the case action summary from Madden’s conviction is not included in the record on appeal; Madden did not file a direct appeal from his conviction so this Court has no record of his original sentence; and in his petition, Madden stated only that he was sentenced to “15 years split 6 months.” (C. 1.)

If Madden’s original sentence did not include a probationary term to follow the confinement portion of the sentence, then the execution of the sentence was invalid under § 15-18-8; if the original sentence did include a probationary term, then both the sentence and its execution were valid and the circuit court also erred in rescinding Madden’s placement on probation.

Based on the foregoing, we affirm the circuit court’s denial of Madden’s request to have his conviction set aside. However, we reverse the circuit court’s rescinding of Madden’s 15-year sentence and we remand this case to the circuit court for it to reinstate the 15-year sentence, and then to determine whether the execution of the sentence — i.e., the manner in which the court split the sentence — was valid-— whether it included a probationary term to follow the term of confinement. If the court determines that Madden’s original sentence did include a probationary term and that, therefore, the execution of the sentence was proper, the court should reinstate Madden’s placement on probation. If the court determines that Madden’s original sentence did not include a probationary term and that, therefore, the execution of the sentence was invalid under § 15-18-8, the court should reconsider splitting the sentence in compliance with the statute. Due return shall be filed with this Court no later than 63 days from the date of this opinion. The return to remand shall include the circuit court’s written findings, a transcript of the proceedings on remand, if any are conducted, and a copy of the case action summary sheets from Madden’s conviction and sentence.

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

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.


author: PER CURIAM.

text:
    Pilar CALLAVA f/k/a Pilar Pefaur, Appellant, v. Brenda FEINBERG, Appellee.
    No. 3D02-1206.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2003.
    Rehearing and Certification Denied Jan. 30, 2004.

      Guy Spiegelman, Miami, for appellant.
    Levey, Airan, Brownstein, Shevin, Friedman, Roen & Kelso and Dar Airan; Jay M. Levy, Miami, for appellee.
    Before COPE, LEVY and FLETCHER, JJ.
   PER CURIAM.

Pilar Callava appeals a final judgment of foreclosure of an equitable lien on her homestead in favor of appellee Brenda Feinberg, her former attorney. We reverse.

This case has its genesis in a dissolution of marriage action between Callava and her former husband. During the course of that action, which has a long and tortured history, appellant was represented by several different attorneys, owing in part to the difficulty of obtaining suit monies from the former husband, a citizen of Argentina. See Pefaur v. Pefaur, 626 So.2d 1025 (Fla. 3d DCA 1993); Pefaur v. Pefaur, 617 So.2d 425 (Fla. 3d DCA 1993).

In 1993 the trial court in the dissolution action ordered that certain real property located in Miami Dade County be transferred to Callava to satisfy child support and alimony arrearages owed by the former husband. During the hearing on the transfer it was discussed that Callava would be able to use the equity in the home to fund her attorney’s fees. The property had not originally been the marital home, but became Callava’s residence during the course of the dissolution of marriage action. In connection with that transfer, the trial court stated:

THE COURT: ... [T]he wife is having the home transferred to her, if she chooses to sell it, she can.... I am sure there is sufficient equity in the home for her to get several hundred thousand dollars so that she can continue with this litigation.
What I said was that your fees would be paid from the asset that I turned over....

In April 1995, Callava sold the property and purchased a much more affordable home. The actual purchase of the home was made in the name of Jorge Gaviria, as Trustee. A portion of the proceeds of the sale of the first home was used to pay attorney’s fees owed to other counsel, but Feinberg did not receive any of the proceeds of that sale.

In June, 1995 Feinberg filed a complaint against Callava for her unpaid attorney’s fees alleging breach of contract and other counts. After trial, in October 2000 the trial court in the attorney’s fees action awarded Feinberg a final judgment of $168,301.71, plus additional fees incurred in that action.

Feinberg then filed an Emergency Motion to Impose Equitable Lien seeking imposition of a lien on the home purchased by Callava in 1995. The trial court imposed the lien based on its finding that in the dissolution action Callava had been awarded a “distinct marital asset” from which she was to pay her attorney’s fees. Callava did not appeal the order imposing the equitable lien.

Feinberg then sought foreclosure of the equitable lien. The trial court entered a foreclosure judgment and Callava has appealed. We conclude that the trial court erred in permitting the foreclosure because the property was her homestead.

Article X, Section 4, of the Florida Constitution “exempts a homestead from forced sale and provides that no judgment or execution shall be a lien thereon.” Bowers v. Mozingo, 399 So.2d 492, 493 (Fla. 3d DCA 1981). Feinberg argues that Callava is not entitled to the protection of the constitutional provision, because legal title to her home was not in Callava’s name but is held by Jorge Gaviria, as Trustee.

Feinberg’s argument is not well taken. The constitutional provision “does not designate how title to the property is to be held and it does not limit the estate that must be owned.... ” Southern Walls, Inc. v. Stilwell Corp., 810 So.2d 566, 569 (Fla. 5th DCA 2002). “[T]he individual claiming homestead exemption need not hold fee simple title to the property.” Id. (citing Bessemer Props., Inc. v. Gamble, 158 Fla. 38, 27 So.2d 832 (1946)). See also HCA Gulf Coast Hospital v. Estate of Downing, 594 So.2d 774, 776 (Fla. 1st DCA 1991)(beneficiary of spendthrift trust entitled to claim homestead exemption as to trust property). Thus, even if Callava owns only a beneficial interest in the property, she is entitled to claim a homestead exemption to the forced sale of the property and the trial court erred in foreclosing her interest in the property.

Feinberg’s alternative argument that the property cannot be Callava’s homestead by virtue of Section 689.07, Florida Statutes (1995), also fails. The purpose of Section 689.07 is “to prevent fraud being perpetrated upon persons who might subsequently rely upon the record when dealing with the grantee.” Meadows v. Citicorp Leasing, Inc., 511 So.2d 622, 623 (Fla. 5th DCA 1987)(citing, Arundel Debenture Corp. v. Le Blond, 139 Fla. 668, 190 So. 765 (1939)). Section 689.07 would allow Jorge Gaviria, as Trustee to convey or encumber the property, but he did not do so and no party has detrimentally relied on his ownership status in connection with the property. See Beckham v. Rinker Materials Corp., 662 So.2d 760, 762 (Fla. 3d DCA 1995) The statute does not defeat Callava’s beneficial interest in the property for purposes of homestead exemption.

We also reject Feinberg’s claim that Callava’s conduct in this case amounts to fraud or egregious conduct within the meaning of Havoco America, Ltd. v. Hill, 790 So.2d 1018 (Fla.2001). The primary intent of the dissolution court’s order transferring the original property to Callava was to provide support for Callava and her child. Payment of attorney’s fees was a secondary purpose of the transfer. By selling the property and moving to a less expensive residence, Callava acted consistently with the main intent of the dissolution trial court.

Finally, we conclude that Callava has not waived her homestead defense where the equitable lien was imposed by way of a post-judgment motion. “As a matter of public policy, the purpose of the homestead exemption is to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law.” Public Health Trust of Dade County v. Lopez, 531 So.2d 946, 948 (Fla.1988) (citation omitted). That being so, the defense of homestead exemption may first be offered at the time that a creditor attempts to foreclose on the homestead.

These holdings are without prejudice to Feinberg’s entitlement to enforce the judgment in any other manner permitted by law.

Reversed.

       The statute provides, in part:
      (1) Every deed or conveyance of real estate heretofore or hereafter made or executed, in which the words "trustee” or "as trustee” are added to the name of the grantee, and in which no beneficiaries are named nor the nature and purposes of the trust, if any, are set forth, shall grant and is hereby declared to have granted a fee simple estate with full power and authority in and to the grantee in such deed to sell, convey, and grant and encumber both the legal and beneficial interest in the real estate conveyed, unless a contrary intention shall appear in the deed or conveyance; provided, that there shall not appear of record among the public records of the county in which the real property is situate at the time of recording of such deed or conveyance, a declaration of trust by the grantee so described declaring that the real estate is held other than for the benefit of the grantee.

        Id. § 689.07(1).


author: GROSS, J.

text:
    CITY OF LAUDERHILL, a municipality, Appellant, v. John RHAMES, Dan Mathis, and Robert Marto, Appellees.
    No. 4D02-101.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Rehearing Denied Feb. 9, 2004.

      Vanessa A. Reynolds and Janine R. Ka-lagher of Conrad & Scherer, LLP, Fort Lauderdale, for appellant.
    Thomasina H. Williams of Law Offices of Williams & Associates, P.A., Miami, for appellees.
   GROSS, J.

This is a case where the City of Lauder-hill reorganized its police department and eliminated the position of lead police officer. Three former lead police officers sued the City over their failure to receive the equivalent rank of sergeant in the reorganized department. All three officers recovered a final judgment for damages against the City for substantive due process violations under 42 U.S.C. § 1983.

Because we hold that the officers failed to state a cause of action for substantive due process violations in this employment case, we reverse the verdict with instructions to the trial court to enter judgment in favor of the City.

Introduction

In May 1999, John Rhames, Dan Mathis, and Robert Marto (the “Officers”), filed an amended complaint. They alleged that the City’s decision to abolish the position of Lead Patrol Officer (“LPO”) constituted a deprivation of their due process rights under section 1983. They also claimed a violation of the Florida Police Officers’ Bill of Rights, section 112.532(4), Florida Statutes (1995).

The trial court denied the City’s motion for summary judgment, and the case proceeded to trial in October 2001. For substantive due process violations, the jury awarded damages of $105,000 to Officer Rhames, $350,000 to Officer Mathis, and $360,000 to Officer Marto. The City timely moved for judgment notwithstanding the verdict, or in the alternative, for a new trial. The trial court denied the City’s motions.

On appeal, the City challenges the trial court’s denial of its motions for summary judgment, the failure to grant a motion for directed verdict, and the denial of the City’s motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. The Officers cross-appeal only the trial court’s denial of equitable relief in addition to the damage awards.

The evidence at trial

At its heart, this is a case based on an employment dispute. The Officers’ complaint was that they were not made sergeants after they held the equivalent, permanent position in an earlier administration.

In October 1994, the City decided to establish its own police department. It hired Michael Scott as chief of police and directed him to structure and staff the new police force. Scott attempted to organize the department based on an experimental methodology called “problem oriented policing,” and to create a “flat line” department, where the number of supervisory positions was minimal.

To implement this plan, Chief Scott recommended that the City Commission adopt an unconventional system of job positions within the department. On June 10,1996, the City Commission adopted this plan. Trying to portray the City’s police as “more approachable,” Chief Scott elected not to use traditional military ranks. Instead, he adopted a hierarchy in which a rank and file police officer was referred to as a road patrol officer; a first-line supervisor was referred to as a “lead patrol Officer”; and the next officer in the chain of command was known as an “Executive Officer.” All Executive Officers reported to the Deputy Chief, who in turn directly reported to Chief Scott.

Chief Scott developed the job description for the LPO position by studying the description for the sergeant position at other law enforcement agencies. The LPO position was the equivalent of sergeant under a traditional police department ranking system.

The Officers were amongst the first LPOs that Chief Scott hired. Each was initially placed as an entry level road patrol officer. To be designated as a LPO, an officer had to undergo an interview, complete an eighty-hour supervisory course at Broward County Community College, and pass a one-year probationary period. If an officer failed to complete this probationary period, he or she would return to being a line officer.

All three Officers successfully completed the probation, making their supervisory positions secure and “permanent”; no longer were they “at-will employees” who could be terminated without cause.

In January 1997, Chief Alberto Melis replaced Chief Scott. Soon after, Chief Melis decided to reorganize the department. He felt that the existing organization was “awkward and unresponsive” and was “too flat with a span of control that [was] too broad providing ... little direct supervision.”

Chief Melis informed all the LPOs that they would be working as acting sergeants. On March 6, 1997, the department distributed a memo to all personnel indicating that anyone who wanted to be a sergeant had to submit a letter of intent or notice to take the sergeant exam.

By resolution, the City Commission formally adopted and approved the job description of Police Sergeant on April 14, 1997. Among the requirements for the sergeant’s position was that an officer have a minimum of three years experience as a certified police officer, an associate’s degree from an accredited college (with a bachelor’s degree preferred), and a State of Florida law enforcement certification. Officers were also required to take a written exam and submit to an oral interview. As part of the reorganization, the City Commission passed a second resolution eliminating the LPO position.

The duties of sergeant and LPO were identical. As the Officers point out in their brief, “the first line supervisory position still exist[ed] in [the] Department,” although it had been renamed “sergeant.” One of the officers explained that a “day under Mike Scott’s administration as a lead police officer was the same as a day under Alberto Melis’ administration as a first line supervisor.”

Chief Melis informed Officer Marto that all LPOs would be “grandfathered in” when the newly-created sergeant position was approved by the City Commission. Officer Marto and the other LPOs were often referred to by the City, by court documents, and by subpoenas, as “sergeant”; were issued ID cards signed by Chief Scott with the title “Sergeant”; received collar pins identifying them as sergeants; received written correspondence referencing to their position as LPOs or first-line supervisors or as sergeants; and drove patrol cars that identified them as sergeants.

After the elimination of the LPO position, Chief Melis told the Officers that they were being demoted to the non-supervisory position of police officers as “acting sergeants.” To obtain the full-time sergeant position, the officers were required to meet the criteria, take and pass written and oral tests, and then be placed on an eligibility list for consideration. As Officer Rhames described it, the Officers would have to “retest, reprove and requalify” to even become eligible to be sergeants.

Chief Melis informed the Officers that if they did not take the written test, they would lose their job as first-line supervisors. However, Chief Melis told the Officers that they did not have to worry about the exams. He explained that all of the Officers would be retained after taking the test and that only one first-line supervisor, a probationary employee, would not be promoted.

All three Officers voiced their concerns about having to take a written test and about the possibility of demotion. Although Officer Rhames initially refused to submit to the test, he eventually took it, fearing he would not have an opportunity to be a sergeant otherwise.

Officer Marto was not promoted to sergeant. His salary was reduced from $37,000 to $33,000 annually. He suffered emotionally from being a regular police officer working alongside many of the same officers he had formerly supervised.

Officer Rhames passed the sergeant’s examination, and was then promoted to sergeant. He had to complete a new one-year probationary period and lost seniority for a time. Chief Melis reneged on a promise to make Officer Rhames head of the traffic unit. Instead, he transferred Rhames, who is a single father, from the day shift to the midnight shift.

Officer Mathis finished in the top 10% for the written exam, and finished first in the oral exam. However, he was not promoted to the rank of sergeant, and thereafter resigned from the department. He then obtained a job with the Hillsborough County Sheriffs Office.

Chief Melis claimed that his motivation for reorganizing the department was organizationally, and never personally, directed. In a deposition taken before trial, he observed that all three of the Officers “were excellent officers and excellent supervisors.”

The section 1983 case went to the jury on substantive due process grounds. The court declined to submit the issue of procedural due process to the jury. As indicated above, the jury returned damage verdicts in favor of the Officers.

If it does not implicate a fundamental right, an adverse employment decision rendered through an executive act will not support a public employee’s claim of a substantive due process violation under 42 U.S.C. § 1983

After reading the briefs and cases cited by the parties, we agree with three federal courts, that substantive due process “is an area of law ‘famous for controversy, and not known for its simplicity.’ ” Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 122 (3d Cir.2000), abrogated by United Artists Theatre Circuit, Inc. v. Township of Warrington, Pa., 316 F.3d 392 (3d Cir.2003) (citations omitted); Kauth v. Hartford Ins. Co. of Ill., 852 F.2d 951, 956 (7th Cir.1988); Schaper v. City of Huntsville, 813 F.2d 709, 716 (5th Cir.1987).

Our experience is that lawyers and judges venturing into the thicket of due process concepts frequently do not distinguish between substantive and procedural due process. Often, the resulting arguments resemble the fable of the blind men and the elephant; because each man touched a different part of the elephant’s body, each described the elephant differently.

To analyze this case, it is important to understand the parameters of a section 1983 due process case.

The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. The Supreme Court has held that both substantive and procedural due process protections arise from this clause, and a violation of either may be addressed by a section 1983 suit. See Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). As the Supreme Court wrote in Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000):

We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.”

(Citations omitted).

As the third circuit has observed, “the fabric of substantive due process, as woven by our courts, encompasses at least two very different threads.” Nicholas v. Pa. State Univ., 227 F.3d 133, 139 (3d Cir.2000).

“The first thread of substantive due process applies when a plaintiff challenges the validity of a legislative act.” Id. (emphasis in original). Legislative acts generally apply to large segments of society; “laws and broad-ranging executive regulations are the most common examples.” McKinney v. Pate, 20 F.3d 1550, 1557 n. 9 (11th Cir.1994) (en banc). If it does not involve a fundamental right, a substantive due process challenge to a legislative act is reviewed under a rational basis test. See TRM, Inc. v. United States, 52 F.3d 941, 945 (11th Cir.1995).

The rational basis test does not impose a rigorous standard of review. A legislative act will withstand a substantive due process challenge “if the government ‘identifies a legitimate state interest that the legislature could rationally conclude was served by the statute.’ ” Nicholas, 227 F.3d at 139 (quoting Alexander v. Whitman, 114 F.3d 1392, 1403 (3d Cir.1997) (quoting Sammon v. N.J. Bd. of Med. Exam’rs, 66 F.3d 639, 645 (3d Cir.1995))); see also Chicago Title Ins. Co. v. Butler, 770 So.2d 1210, 1214-15 (Fla.2000) (“The test to be applied in determining whether a statute violates due process [when no fundamental constitutional rights are implicated] is whether the statute bears a rational relation to a legitimate legislative purpose in safeguarding the public health, safety, or general welfare and is not discriminatory, arbitrary, or oppressive.”).

The eleventh circuit has observed that the rational basis test “is generally easily met.” Cash Inn of Dade, Inc. v. Metro. Dade County, 938 F.2d 1239, 1241 (11th Cir.1991). The court described the rational basis test:

The task is to determine if “any set of facts may be reasonably conceived to justify” the legislation.... To put it another way, the legislation must be sustained if there is any conceivable basis for the legislature to believe that the means they have selected will tend to accomplish the desired end. Even if the court is convinced that the political branch has made an improvident, ill-advised, or unnecessary decision, it must uphold the act if it bears a rational relation to a legitimate governmental purpose.

Id. (citations omitted); TRM, 52 F.3d at 945.

The second thread of substantive due process protection applies to “non-legislative” or “executive” acts. Such acts “characteristically apply to a limited number of persons.” McKinney, 20 F.3d at 1557 n. 9. Non-legislative or executive acts “typically arise from the ministerial or administrative activities of members of the executive branch. The most common examples are employment terminations.” Id.; see also Nicholas, 227 F.3d at 139 n. 1.

A fundamental right that falls within the ambit of substantive due process may not be taken away by a state’s executive or non-legislative acts “for reasons that are ‘arbitrary, irrational, or tainted by improper motive,’ Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir.2000) (quoting Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.1988)), or by means of government conduct so egregious that it ‘shocks the conscience,’ Boyanowski [v. Capital Area Intermediate Unit], 215 F.3d 396, 401 [3d Cir.2000] (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)).” Nicholas, 227 F.3d at 139; see Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1379 (11th Cir.1994).

The threshold inquiry for a non-legislative substantive due process claim is whether a plaintiff has demonstrated an interest to which substantive due process protection applies. Nicholas, 227 F.3d at 139-40. Substantive due process protects “fundamental” rights or interests that are deeply rooted in this Nation’s history and tradition. See Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). As the Supreme Court wrote in Glucksberg:

Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed[.]” Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmak-ing,” that direct and restrain our exposition of the Due Process Clause.

Id. at 720-21, 117 S.Ct. 2258 (citations omitted).

Because an employee’s property interest in an express or implied employment contract is not “deeply rooted in this Nation’s history and tradition,” such a right is not protected by substantive due process. As McKinney observed:

Supreme Court precedent demonstrates that an employee with a property right in employment is protected only by the procedural component of the Due Process clause, not its substantive component. Because employment rights are state-created rights and are not “fundamental” rights created by the Constitution, they do not enjoy substantive due process protection.

20 F.3d at 1560 (emphasis added); see also Ammons v. Okeechobee County, 710 So.2d 641, 645 (Fla. 4th DCA 1998) (relying on McKinney for the proposition that substantive due process protects only “fundamental” rights, not substantive rights created only by state law).

Most courts have held that absent a claim that a fundamental right has been denied by an employer, state employment decisions are not entitled to substantive due process protection. See McKinney, 20 F.3d at 1559; see also Nicholas, 227 F.3d at 141 (holding that tenured professor is not entitled to substantive due process protection); Singleton v. Cecil, 176 F.3d 419, 425-26 (8th Cir.1999) (en banc) (holding that a public employee’s interest in continued employment is “not so fundamental” a right as to be protected by substantive due process protection); Local 342, Long Island Pub. Serv. Employees v. Town Bd. of Huntington, 31 F.3d 1191, 1196 (2d Cir.1994) (“We do not think, however, that simple, state-law contractual rights, without more, are worthy of substantive due process protection.”); Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1350-51 (6th Cir.1992) (tenured employee’s state-based right to continued employment has no substantive due process protection); Charles v. Baesler, 910 F.2d 1349, 1353 (6th Cir.1990) (“[W]e do not believe liberty and justice are threatened, in the constitutional sense, by the failure of the government and its officials to abide by their contract with [the plaintiff].”); Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134, 1142 n. 10 (4th Cir.1990) (professor’s interest in position in university department “is essentially a state law contract right, not a fundamental interest embodied in the Constitution.”); Kauth, 852 F.2d at 958 (plaintiff with state-created property interest cannot state a substantive due process claim unless alleging a violation of “some other substantive constitutional right”); but see Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 528-29 (10th Cir.1998) (holding that a public employee may raise a substantive due process claim if the government employer’s actions are arbitrary, irrational, or shocking to the conscience); Harrington v. Harris, 118 F.3d 359, 368 (5th Cir.1997) (holding that a public employee may have a substantive due process claim if able to establish a property interest in a position and that termination of the position was arbitrary or capricious); Newman v. Massachusetts, 884 F.2d 19, 25 (1st Cir.1989) (“[S]chool authorities who make an arbitrary and capricious decision significantly affecting a tenured teacher’s employment status are liable for a substantive due process violation.”).

Even though a non-legislative employment decision does not fall within the ambit of substantive due process protection, it is still subject to the requirements of procedural due process. To be entitled to the protection of procedural due process, a property interest need not rise to the level of a fundamental right necessary to support a non-legislative substantive due process claim. McKinney, 20 F.3d at 1560; Nicholas, 227 F.3d at 140. For this reason, McKinney held

that an employee with a property right in employment is protected only by the procedural component of the Due Process Clause, not its substantive component. Because employment rights are state-created rights and are not “fundamental” rights created by the Constitution, they do not enjoy substantive due process protection.

20 F.3d at 1560.

Procedural due process involves three elements. State action must burden a protected right. See Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The right must be deprived without a fair hearing either because the claimant did not receive adequate notice, see Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), or a reasonable opportunity to be heard. Id. Procedural due process is distinct from substantive due process in that a “violation of a substantive due process right ... is complete when it occurs ... [and] no amount of process can justify its infringement. By contrast, a procedural due process violation is not complete ‘unless and until the State fails to provide due process.’ ” McKinney, 20 F.3d at 1557 (quoting Zinermon, 494 U.S. at 126, 110 S.Ct. 975).

In sum, Nicholas provides a succinct analytical framework for a section 1983 claim of a due process violation:

[W]hen a plaintiff challenges the validity of a legislative act, substantive due process typically demands that the act be rationally related to some legitimate government purpose. In contrast, when a plaintiff challenges a non-legislative state action (such as an adverse employment decision), we must look, as a threshold matter, to whether the property interest being deprived is “fundamental” under the Constitution. If it is, then substantive due process protects the plaintiff from arbitrary or irrational deprivation, regardless of the adequacy of procedures used. If the interest is not “fundamental,” however, the governmental action is entirely outside the ambit of substantive process and will be upheld so long as the state satisfies the requirements of procedural due process.

227 F.3d at 142.

The Officers’ claims in this ease arise out of a state employment decision, a non-legislative act. Their property interest in the LPO position was not fundamental, so their claim falls outside the ambit of substantive due process.

The absence of a fundamental right in this case is apparent from the Officers’ description of their protected right, that the Officers “had acquired a protected property interest in their positions as first line supervisors, because they could not be demoted or terminated without cause.” Under the line of employment cases cited above, such a non-fundamental right cannot support a substantive due process claim in a case involving non-legislative action.

The Officers argue that McKinney does not apply because this case involves legislative action, the City Commission’s adoption of a resolution abolishing the LPO position. Because of this, they argue that “their property interest in their positions was also sufficient to support their substantive due process claim.”

This argument misses the point of a substantive due process challenge to a legislative act, which requires that the City’s resolutions be reviewed under a rational basis test. Nowhere in their brief or in the court below did the Officers analyze the resolutions under the rational basis test.

The Commission’s resolution obviously satisfies the rational basis test; it is hard to imagine that a city could not reorganize its police department to bring its job positions in line with the more traditional rank system of police departments around the country.

Moreover, the Officers’ challenge is not to a legislative act, but to an executive decision by Chief Melis, who they say “stripped [them] of their positions.” The Officers suffered no adverse result as a result of the City’s resolutions. Had Chief Melis designated each of the officers a sergeant, with the attendant benefits and wages which the officers enjoyed in their capacity as LPOs, the officers would have suffered no harm. This case is, at its heart, an employment termination case arising from an executive act. Contrary to the Officers’ argument, McKinney is directly on point.

We conclude, then, that the Officers’ property right in employment was protected not by the substantive component of the Due Process Clause, but only by its procedural component. There was no legal basis for the Officers’ substantive due process claim to go to the jury.

The trial court declined to submit the procedural due process claim to the jury because it accepted the City’s contention that the Officers did not timely prepare an appropriate jury instruction. The Officers did not cross-appeal that decision. In any event, we have reviewed the transcript of the trial proceedings on October 19 and 22, 2001. This decision was well within the trial court’s discretion.

We reverse the final judgment, remand to the trial court, and direct that judgment be entered in favor of the City. In light of the reversal, the Officers’ cross-appeal is moot.

KLEIN and SHAHOOD, JJ„ concur.

      . In considering the City's points on appeal, we review the record and trial evidence in the light most favorable to the Officers, who prevailed at trial.
      When reviewing a ruling on summaty judgment, an appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party. See Campaniello v. Amici P'ship, 832 So.2d 870, 872 (Fla. 4th DCA 2002).
      "A directed verdict is proper when the evidence and all inferences therefrom, considered in the light most favorable to the non-moving parly, support the movant’s case as a matter of law and there is no evidence to rebut it.” S. Fla. Water Mgmt. Dist. v. Daiagi, 824 So.2d 216, 217 (Fla. 4th DCA 2002) (emphasis added); Knowles v. Hennelly, 793 So.2d 1063, 1065 (Fla. 4th DCA 2001) ("[A] motion for directed verdict should only be granted where, viewed in the light most favorable to the non-moving party, 'there is no evidence upon which a jury could properly rely in finding for the plaintiff.' ") (quoting Stokes v. Ruttger, 610 So.2d 711, 713 (Fla. 4th DCA 1992)).
      The City's last point is that the trial court erred in failing to grant its motion for judgment notwithstanding the verdict ("JNOV”), or in the alternative, for a new trial. "[W]hen reviewing a JNOV, we must view all of the evidence in a light most favorable to the non-movant and resolve all conflicts in the non-movant's favor.” Adelman v. St. Paul Guardian Ins. Co., 805 So.2d 106, 108 (Fla. 4th DCA 2002).

      . Officer Rhames was first hired as an officer by the City in 1994. Within a month and a half, he was promoted to the position of officer-in-charge, a supervisory position created because of complaints from dispatchers that there was not a "go-to person” in charge of a police investigation. When Chief Scott left the department in 1996, the position "First line supervisor, sergeant,” was equivalent to LPO.

      . Title 42 U.S.C. § 1983 provides:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....

      . The Police Officers’ Bill of Rights claim also went to the juiy. The jury verdict does not differentiate between recovery for the substantive due process violation, and the Police Officers' Bill of Rights claim pursuant to section 112.532(4), Florida Statutes (1995). We note that this statute does not allow for monetary relief. See Sylvester v. City of Delray Beach, 584 So.2d 214 (Fla. 4th DCA 1991) (no right to damages against employer under this statute, with the exclusive remedy being in-junctive relief).

      . The poet John Godfrey Saxe summarized the dispute between the blind men:
      And so these men of Indostan Disputed loud and long, Each in his own opinion, Exceeding stiff and strong, Though each was partly in the right, And all were in the wrong!
      John Godfrey Saxe, The Blind Men and the Elephant, available at http://www.noogenes-is.com/pineapple/ blind — men—elephant.html (last visited Oct. 10, 2003).

        . In City of Pompano Beach v. Yardarm Restaurant, Inc., 834 So.2d 861, 869-70 (Fla. 4th DCA 2002), this court adopted McKinney's distinction between legislative and executive acts.

      . Conversely, when a legislative act impacts a fundamental right, the test to be applied is one of strict scrutiny; the "Fourteenth Amendment forbids the government to infringe ... 'fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (citation omitted) (emphasis omitted).

      . In Glucksberg, the Supreme Court discussed the parameters of substantive due process and the fundamental rights protected by it. The "fundamental rights and liberty interests” protected by substantive due process include "the specific freedoms protected by the Bill of Rights,” and the "rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion.” 521 U.S. at 720, 117 S.Ct. 2258 (citations omitted). The Court also acknowledged that there was no bright-line test to identify protected fundamental rights; it wrote that "the outlines of the 'liberty' specially protected by the Fourteenth Amendment- — never fully clarified, to be sure, and perhaps not capable of being fully clarified-have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition.” Id. at 722, 117 S.Ct. 2258.

      . An example of an employment case where an employer has infringed upon a fundamental right is Thornquest v. King, 82 F.3d 1001 (11th Cir.1996). There, the court pointed out that while McKinney barred a university professor’s section 1983 substantive due process claim arising from his employment, it did not bar' the professor's retaliatory discharge claim, based upon the contention that the professor's fundamental right to free speech had been implicated. Id. at 1004 n. 3.

      . A number of Florida cases recognize the operation of procedural due process in the employment context. See, e.g., Tookes v. City of Riviera Beach, 633 So.2d 566 (Fla. 4th DCA 1994) (acknowledging that city employee had protected property interest in continued employment and could proceed on allegations that he was denied procedural due process by not being given notice and an opportunity to be heard prior to being terminated); Dep’t of Highway Safety & Motor Vehicles v. Schluter, 705 So.2d 81 (Fla. 1st DCA 1997) (noting that highway patrol officers have a property interest in continued employment that is protected under due process clause, and that this interest may not be deprived without appropriate procedural due process procedures); Grice v. Kissimmee, 697 So.2d 186 (Fla. 5th DCA 1997) (finding a procedural due process violation where an officer, after being terminated, was denied opportunity to confront and cross-examine a witness whose allegations of misconduct formed the basis of the termination).