author: PITTMAN, Judge. CRAWLEY, Presiding Judge,

text:
    Roger Howard LINDSAY v. STATE of Alabama.
    2050649.
    Court of Civil Appeals of Alabama.
    Nov. 3, 2006.

      Roger Howard Lindsay, pro se.
    Troy King, atty. gen., and Robin D. Scales and John M. Porter, asst, attys. gen., for appellee.
   PITTMAN, Judge.

Roger Howard Lindsay, a pro se plaintiff, appeals from a judgment denying his request for the return of property seized incident to a criminal proceeding. We reverse and remand.

The record reflects that on November 20, 2002, a law-enforcement officer obtained a warrant to search Lindsay’s residence. After that search was conducted, numerous items were seized, including, among other things, computer disks, videotapes, a camera, and firearms. On September 20, 2004, Lindsay was convicted in the Escambia Circuit Court of both possessing and possessing with the intent to disseminate obscene material containing a visual depiction of a person under the age of 17 years, violations of §§ 13A-12-192(a) and 13A-12-192(b), Ala.Code 1975; those convictions were affirmed by the Alabama Court of Criminal Appeals. Lindsay v. State (No. CR-04-0618, Sept. 23, 2005), 945 So.2d 1098 (Ala.Crim.App.2005) (table).

On March 22, 2006, Lindsay filed what he termed a “Motion for Writ of Seizure” requesting that the State of Alabama return an extensive number of seized items to his brother, who held Lindsay’s power of attorney, because Lindsay asserted “the property in question had nothing to do with [Lindsay’s] case.” On April 5, 2006, the circuit court sua sponte denied Lindsay’s motion without stating grounds for the denial and without holding a hearing. Athough Lindsay appealed from the circuit court’s order to the Aabama Court of Criminal Appeals, that court transferred the appeal to this court on the authority of Jones v. State, 937 So.2d 59 (Ala.2006) (holding that in a case involving a request for the return of seized property, the proceeding should be treated as a civil action sounding in conversion). We agree with the Court of Criminal Appeals that this court has appellate jurisdiction in this case.

Lindsay argues that the circuit court erred in denying his motion because, he says, some of the items seized were not listed in the search warrant and therefore should be returned to his possession. The State concedes on appeal that some of the items that Lindsay requested in his motion to be returned should be returned. Lindsay concedes that he is not entitled to the return of any item associated with his convictions that constitutes contraband, i.e., items whose possession is forbidden by law, and the State correctly notes that Lindsay would also not be entitled to any property for which another person has a superior right of ownership. E.g., Dailey v. State, 640 So.2d 1060, 1060 (Ala.Crim.App.1994); and Ex parte Zamudio, 668 So.2d 166, 167 (Ala.Crim.App.1995). However, Lindsay is entitled to any other property as to which no forfeiture action has been instituted (with one notable exception). See Ala.Code 1975, § 20-2-93(a).

To the extent that Lindsay has attempted to collaterally attack the validity of the search warrant itself, we agree with the State that this court is without jurisdiction to address that contention. Rather, that contention goes to the validity of his convictions and is cognizable as a claim in a petition seeking postconviction relief pursuant to Rule 32, Ala. R.Crim. P.

On the basis of the State’s concession of error, we conclude that the circuit court erred in summarily dismissing Lindsay’s motion for the return of seized property. We remand this case to the circuit court for further proceedings to determine Lindsay’s interest in the property he seeks and to declare the specific items of property, if any, that should be returned to Lindsay or his agent.

REVERSED AND REMANDED.

THOMPSON and BRYAN, JJ., concur.

CRAWLEY, P.J., concurs specially.

MURDOCK, J., concurs in the result, without writing.

CRAWLEY, Presiding Judge,

concurring specially.

The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend., XIV, § 1. As our supreme court has stated, “[sjtatutes authorizing confiscation and forfeiture obviously carry serious implications for rights guaranteed by the federal and state constitutions.” Woods v. Reeves, 628 So.2d 563, 565 (Ala.1993). Likewise, the retention of Lindsay’s personal property taken by officers during the execution of the search warrant but unrelated to the warrant itself or the criminal charges resulting from its execution and otherwise permitted to be owned by Lindsay seriously infringes upon Lindsay’s rights.

      . With respect to the firearms that were seized from Lindsay’s home, we note that the United States Court of Appeals for the Eleventh Circuit has held that actual or constructive possession of any firearm by a convicted felon is prohibited by federal law. United States v. Howell, 425 F.3d 971, 976-77 (11th Cir.2005); accord United States v. Felici, 208 F.3d 667, 670 (8th Cir.2000). Lindsay would not be entitled to have any firearms seized from his residence held in trust for him by a third party, i.e., his brother, because such a request would permit a convicted felon's constructive possession of a firearm. 208 F.3d at 670.


source: Caselaw Access Project

author: CRAWLEY, Presiding Judge. THOMPSON, Judge,

license: Public Domain

text:
    Dennis WILLIAMS v. STATE of Alabama.
    2050867.
    Court of Civil Appeals of Alabama.
    Nov. 17, 2006.
    Dennis Williams, pro se.
    Troy King, atty. gen., and Robin D. Scales and John M. Porter, asst, attys. gen., for appellee.
   CRAWLEY, Presiding Judge.

AFFIRMED. NO OPINION.

See Rule 58(a)(1) and (a)(2)(F), Ala. R.App. P.; Washington v. Bill Heard Chevrolet, Inc., 876 So.2d 1103, 1105 (Ala.2003); Alabama Public Service Comm’n v. AAA Motor Lines, Inc., 272 Ala. 362, 369, 131 So.2d 172, 177 (1961); and Huggins v. Alabama Dep’t of Public Safety, 891 So.2d 337, 339 (Ala.Civ.App.2004).

This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

PITTMAN and BRYAN, JJ., concur.

THOMPSON, J., dissents, with writing, which MURDOCK, J., joins.

THOMPSON, Judge,

dissenting.

The record reveals that, although Dennis Williams styled this action as a declaratory-judgment action, Williams actually sought postconviction relief pursuant to Rule 32, Ala. R.Crim. P. In his complaint, Williams alleged that his constitutional rights had been violated by the trial court’s “indefinite characterization of the indicted offense [as] ‘murder’ ” while giving instructions at his 1981 trial. The scope of Rule 32, Ala. R.Crim. P., encompasses the relief sought by Williams in his complaint. Because I believe that jurisdiction is proper in the Court of Criminal Appeals, I must dissent.

MURDOCK, J., joins.


author: THOMPSON, Judge.

text:
    Ladochie PRITCHETT v. MOBILE COUNTY. Addie L. Edwards v. Mobile County.
    2050668 and 2050785.
    Court of Civil Appeals of Alabama.
    Nov. 17, 2006.

      John W. Parker, Mobile, for appellants Ladochie Pritchett and Addie L. Edwards.
    Andrew J. Rutens and Lawrence M. Wettermark of Galloway, Smith, Wetter-mark & Everest, LLP, Mobile, for appel-lee.
   THOMPSON, Judge.

On July 25, 2001, Addie L. Edwards sued Mobile County and Bank of America; that action was designated as case number CV-01-2550.51. In her complaint, Edwards alleged that she had been damaged by Mobile County’s construction or extension of a roadway known as “Fernland Road” over property she owned and that Bank of America had breached a warranty of title it had provided her regarding that property. The trial court ultimately dismissed Bank of America as a party to Edwards’s action.

On June 18, 2002, Ladochie Pritchett filed a complaint against Mobile County alleging that Mobile County had extended Fernland Road in a manner that encroached upon her property and seeking damages for the damage to her property. Pritchett’s action, which was filed in the same circuit court as was Edwards’s complaint but which was assigned to a different trial judge, was designated as case number CV-02-2044.51.

On June 9, 2004, Edwards filed in case number CV-01-2550.51 a motion to consolidate that action with Pritchett’s action, case number CV-02-2044.51. The record in case number CV-01-2550.51 does not indicate that the trial court in that case ruled on that motion. On November 22, 2004, the trial court in case number CV-01-2550.51entered a summary judgment in favor of Mobile County, the sole remaining defendant, on Edwards’s claims. Edwards filed a timely postjudgment motion, and the trial court denied that motion on January 28, 2005. On April 27, 2006, Edwards filed a notice of appeal. Our supreme court transferred Edwards’s appeal in case number CV-01-2550.51 to this court, pursuant to § 12-2-7(6), Ala.Code 1975. This court assigned Edwards’s appeal the case number 2050785.

In Pritchett’s action, case number CV-02-2044.51, Mobile County moved for a summary judgment, and Pritchett opposed that motion. On February 16, 2006, the trial court granted Mobile County’s motion for a summary judgment in case number CV-02-2044.51 and entered a detailed judgment in favor of Mobile County on Pritchett’s claims. Pritchett filed a post-judgment motion, which the trial court denied on March 16, 2006. Pritchett timely appealed on April 27, 2006. Pritchett’s appeal in case number CV-02-2044.51 was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975. This court assigned the case number 2050668 to Pritchett’s appeal and consolidated it with Edwards’s appeal.

Initially, we note that jurisdictional matters are of such significance that an appellate court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997); Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). “The timely filing of [a] notice of appeal is a jurisdictional act.” Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985); see also Parker v. Parker, 946 So.2d 480 (Ala.Civ.App.2006) (“an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived”).

Neither Mobile County nor Edwards has favored this court with a statement of jurisdiction addressing the timeliness of Edwards’s appeal in case number CV-01-2550.51. In the “statement of the case” portion of her brief on appeal, Edwards refers to Pritchett’s action in case number CV-02-2044.51 as a “companion case.” Edwards asserts that because the two actions raised many of the same issues, the appeal in case number CV-01-2550.51 was “held open,” presumably until the trial court in case number CV-02-2044.51 ruled on Mobile County’s summary-judgment motion and Pritchett’s postjudgment motion. Edwards cites no authority supporting the proposition that the time for filing a notice of appeal might be tolled by a trial court’s consideration of another action involving similar issues; there is no such authority. We reiterate that the trial court did not rule on Edwards’s motion to consolidate the two actions, and nothing in the record in case number CV-02-2044.51 indicates that a similar motion to consolidate was filed or ruled upon in that action.

The trial court entered its judgment in Edwards’s action (case number CV-01-2550.51) on November 22, 2004, and it denied Edwards’s postjudgment motion on January 28, 2005. Edwards had 42 days from January 28, 2005, in which to file her notice of appeal. Rule 4(a)(1), Ala. R.App. P. However, Edwards filed her notice of appeal from the judgment and the post-judgment order in case number CV-01-2550.51 on April 27, 2006, more than a year after the entry of those orders. Therefore, Edwards’s appeal in case number CV-01-2550.51 is untimely and is due to be dismissed. See Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”).

We reach the merits of Pritchett’s timely appeal. In that appeal, Pritchett contends that the trial court erred in entering a summary judgment in favor of Mobile County.

A motion for a summary judgment is properly granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). “When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact.” Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999) (citing Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989)). “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

In 1910, Mobile County obtained what the parties and the trial court frequently referred to as a public right-of-way for the construction of a road over an area extending 30 feet west of the section line (“the section line”) dividing Section 5 and Section 4, Township 7 South, Range 3 West in Mobile County. A public roadway, now known as “Fernland Road,” has existed on or near that 30-foob-wide strip of land for some period of time; the roadway began as a dirt road and was later paved.

In 2001, Mobile County widened and resurfaced Fernland Road. It appears that before the roadway-improvement project, Fernland Road did not occupy the entire 30-foob-wide right-of-way west of the section line claimed by Mobile County. John E. Murphy, Jr., the Assistant County Engineer for Mobile County, testified that “at the time of the most recent [ (2001) ] widening and resurfacing of Fernland Road, the then-existing paved portion of the road straddled the section line.”

Donald W. Rowe, the president of Rowe Surveying and Engineering Company, testified in an affidavit on behalf of Mobile County. According to Rowe, approximately 15 feet of the total width of the roadway (including the paved portion, shoulders, and ditches) was located west of the section line before the 2001 improvement project. Mobile County used the entire 30-footr-wide right-of-way located west of the section line in constructing the 2001 improvements to Fernland Road.

In 1989, a subdivision known as “Fern-land Acres” was platted and recorded in the Probate Court of Mobile County. In 1992, Pritchett purchased lot number 8 and lot number 11 in the Fernland Acres subdivision; only possible encroachment on lot 8 is at issue in this action. We note that in her brief submitted to this court, Pritchett contends that her property is subject to a 15-foob-wide right-of-way lying west of the section line. According to Rowe’s affidavit, the Fernland Acres subdivision plat indicates that the lots fronting Fernland Road, including Pritchett’s lot number 8, have eastern boundaries that extend to the section line. Rowe testified, however, that the Fernland Acres subdivision plat contains an error. Rowe testified that the eastern boundary of the lots is contrary to that set forth in the 1910 subdivision plat creating the right-of-way. According to Rowe, the lots fronting Fern-land Road have eastern boundaries that the 1910 subdivision plat established as extending only 30 feet west of the section line.

Pritchett did not present any evidence indicating that the 1910 plat was incorrect or that the Fernland Acres plat (regardless of whether there was a right-of-way depicted on that plat) was correct in establishing the eastern boundaries of the lots, including lot number 8, fronting Fernland Road. In support of her opposition to Mobile County’s summary-judgment motion, Pritchett incorporated a copy of a filing Edwards submitted in Edwards’s action in opposition to a motion for a summary judgment filed by Mobile County. Relying on that filing, Pritchett disputed that the 1910 plat set forth the claimed 30-foot-wide right-of-way and contended that, even if it did so, Mobile County never accepted or used any of the right-of-way west of the section line.

The trial court entered a judgment setting forth a detailed recitation and analysis of the facts of this case. That judgment reads as follows:

“This [action] arises from the widening and resurfacing of a public street, Fernland Road, by [Mobile County]. The plaintiff, Ladochie Pritchett (‘Pritchett’) owns a home located on Fernland Road and claims that the widening project encroached onto her property approximately thirty feet. The undisputed facts show otherwise.
“[Mobile County] acquired a public right-of-way for what is now Fernland Road by a recorded subdivision plat in 1910. The plat indicates that a right-of-way was dedicated to Mobile County which extended thirty feet west of a section line dividing Sections 5 and 4, Township 7 South, Range 3 West in Mobile County.1 This same subdivision plat shows numerous subdivided parcels which remained in private ownership, the easternmost of which had a property line which began, consistent with the right-of-way, thirty feet from the section line. Pritchett’s later-acquired property is located within this subdivided lot which clearly does not overlap [Mobile County’s] right-of-way.2
“Pritchett mistakenly alleges that her property line extends all the way to the section line. Her belief is understandable. Pritchett acquired title to her property through a corporate statutory warranty deed recorded in 1992. The deed conveys Lots 11 and 8 in a recorded subdivision known as Fernland Road Acres. Only Lot 8 abuts Fernland Road. Lot 8 is located within the same originally subdivided lot depicted in the 1910 subdivision.
“Pritchett’s mistaken belief that she owns to the section line arises from an examination of the subdivision plat for Fernland Road Acres which was recorded in 1989. According to this subdivision plat, Lot 8 does indeed extend to the section line. However, the undisputed evidence before the Court indicates that this subdivision plat, by overlaying a previously dedicated public road, was in error.
“There is nothing before the Court to indicate that the subdivision plat filed in 1910 did not effectively convey a right-of-way for Fernland Road to the public. The undisputed affidavit of Donald Rowe, a registered professional engineer and land surveyor, establishes that any deed based on the 1989 recorded subdivision plat of Fernland Road Acres attempts to convey what the grantor had no legal title to convey, that is the thirty foot right-of-way previously dedicated to [Mobile County] as a public road in 1910. As Rowe indicates, a comparison of the 1910 subdivision plat to the 1989 subdivision plat clearly demonstrates that the latter plat from which Pritchett claims title could not effectively convey the thirty foot strip of property located west of the section line in that it had previously been dedicated as a public road.
“It being undisputed that Pritchett has no viable claim of title based on documents recorded in Probate Court, an issue arises whether or not once the public right-of-way was established it was somehow lost. The undisputed evidence, as well as clearly established law, indicates that this did not and could not occur. According to the undisputed testimony of John Murphy, a registered professional engineer employed by Mobile County, Fernland Road began as a dirt road which was subsequently paved and then resurfaced and widened. Prior to the widening project described in Pritchett’s complaint, the paved portion of Fernland Road straddled the section line with eighteen feet of paved surface, five of which was located west of the section line on the property claimed by Pritchett. In addition, when considering shoulders and ditches, the entirety of Fernland Road before its improvement consisted of forty feet of width, fifteen feet of which was located west of the section line.
“After the widening and resurfacing project, the total pavement width of Fernland Road was increased to twenty-two feet. Of this, seven feet of pavement was located west of the section line. Of the total width of the improved Fernland Road, including shoulders and ditches, twenty-five feet of the improved road was located west of the section line. It is undisputed that both before and after the most recent widening project, [Mobile County] utilized the disputed thirty foot strip for public road purposes.
“The undisputed testimony of John Murphy also established that [Mobile County] has not abandoned the road nor has it permitted any uses of the road which are inconsistent with its maintenance as a public thoroughfare. [Mobile County] did permit the construction of mailboxes located within the dedicated right-of-way, which is not unusual and is permitted throughout [Mobile County].3 There has never been a statutory vacation of any portion of the dedicated public right-of-way for Fernland Road.
“Compliance with statutory requirements constitutes a valid dedication to the public of all streets, alleys, and other public places. Johnson v. Morris, 362 So.2d 209 (Ala.1978); Gaston v. Ames, 514 So.2d 877 (Ala.1987). Once a dedication to the public has occurred, that dedication is irrevocable, and it cannot be altered or withdrawn except by statutory vacation proceedings. Booth v. Montrose Cemetery Association, 387 So.2d 774 (Ala.1980). Once the active dedication is complete and made irrevocable, it is not affected by the present use of the property or the failure to use the property for the dedicated purposes. Cottage Hill Land Corp. v. City of Mobile, 443 So.2d 1201 (Ala.1983).
“The Court is sympathetic to Pritch-ett, who acquired title by virtue of a warranty deed which does indeed purport to convey title to the thirty foot strip of land in dispute. Unfortunately, Pritchett’s grantor warranted title to and attempted to convey property for which it had no legal title. While Pritchett may have legal recourse, her remedy does not lie against [Mobile County].
"1. ‘The acknowledgment and recording of such plat or map shall be held to be a conveyance in fee simple of such portion of the premises platted as are marked or noted on such plat or map as donated or granted to the public, and the premises intended for any street, alleyway, common or other public use, as shown in such plat or map, shall be held in trust for the uses and purposes intended or set forth in such plat or map.' Ala.Code 1975, § 35-2-51(b).
"2. A duly recorded plat, ‘showing dimensions of lots, and also width of adjoining streets, with no indicia that the lot overlaps into the street, imports that the dimensions given extend only to the street boundary shown on the plat.’ Edmundson v. Mullen, [215 Ala. 297,] 110 So. 391 (Ala.1926).
"3. Abutting property owners are allowed permissive use of publicly dedicated rights of way subject to the superior right of the public pursuant to the terms of the dedication. Kizer v. Finch, 672 So.2d 511 (Ala.1995).”

On appeal, Pritchett “adopts the arguments as set forth by Edwards” in the brief Edwards submitted to this court, which we hereinafter refer to as being asserted by Pritchett. Pritchett also expands on those arguments in her brief submitted to this court.

Pritchett argues that at some time (Pritchett does not specify what period of time), Mobile County had not used its right-of-way as a roadway and that its alleged failure to use the right-of-way constituted a vacation of the right-of-way. In this case, the evidence and the trial court’s judgment clearly indicate that the 1910 subdivision plat was properly recorded in the probate office as required by § 35-2-50 and § 35-2-51, Ala.Code 1975. Pritch-ett has not presented any evidence indicating that the 1910 subdivision plat was not properly recorded or accepted by Mobile County.

“Having met those two requirements [set forth in § 35-2-50 and § 35-2-51], [the party establishing a subdivision] is deemed to have made a conveyance in fee simple of all areas granted or dedicated to the public. § 35-2-51(b), Code of Alabama 1975. ‘[Substantial compliance with the statutory requirements constitutes a valid dedication to the public of all streets, alleys, and other public places.’ Johnson v. Morris, 362 So.2d 209, 210 (Ala.1978). Cottage Hill Land Corp. v. City of Mobile, 443 So.2d 1201, 1203 (Ala.1983).
“After there has been a proper dedication to the public, that dedication is irrevocable and it cannot be altered or withdrawn except by statutory vacation proceedings. Booth v. Montrose Cemetery Ass’n, 387 So.2d 774 (Ala.1980); Smith v. City of Opelika, 165 Ala. 630, 51 So. 821 (1910). Once the act of dedication is complete and made irrevocable, it is not affected by the present use of the property or the failure to use the property for the dedicated purposes. Cottage Hill Land Corp. v. City of Mobile, supra.

Gaston v. Ames, 514 So.2d 877, 879 (Ala.1987). Accordingly, in this case, the 1910 dedication of the 30-foob-wide right-of-way conveyed to Mobile County an irrevocable fee-simple interest in that property.

There is no evidence indicating that Mobile County failed to use its right-of-way, or at least a portion of it, as a public roadway. Even if such evidence were presented, however, a failure to use property dedicated for public use is immaterial. Gaston v. Ames, 514 So.2d at 879. A public roadway may be vacated only according to vacation proceedings initiated pursuant to § 35-2-54, Ala.Code 1975. See § 35-2-54; Booth v. Montrose Cemetery Ass’n, 387 So.2d 774 (Ala.1980). Pritchett submitted no evidence indicating that the public road or the right-of-way was vacated pursuant to § 32-2-54.

Pritchett also contends that the 1989 Fernland Acres subdivision plat superseded the 1910 subdivision plat and, she contends, the 1989 plat does not provide for Mobile County’s having a 30-foot-wide right-of-way. Therefore, Pritchett contends, Mobile County was bound by its acceptance of the 1989 Fernland Acres subdivision plat and cannot claim the 30-foot-wide right-of-way. Pritchett cites no authority supporting that argument. “ ‘Where an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court’s duty nor its function to perform all the legal research for an appellant.’ ” Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 348 (Ala.1993) (quoting Sea Calm Shipping Co. v. Cooks, 565 So.2d 212, 216 (Ala.1990)). We also note that as a part of this argument in her brief on appeal, Pritchett claims that Mobile County is estopped from relying on the 1910 subdivision plat because it accepted the 1989 Fernland Acres subdivision plat. Pritchett did not assert her estoppel argument before the trial court, and she impermissibly raises it for the first time on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”); see also Shiver v. Butler County Bd. of Educ., 797 So.2d 1086, 1089 (Ala.Civ.App.2000) (this court will not consider an issue not presented to the trial court and on which the trial court was not given the opportunity to rule).

Pritchett has not challenged the trial court’s determination that the 1989 subdivision plat on which the deed to her property is based is in error. She also failed to challenge the trial court’s finding that the grantor from whom Pritchett obtained her deed purported to convey to her property for which it had no legal title. Our review of the record supports those determinations, as well as the other conclusions reached by the trial court in its judgment, quoted above. As the trial court indicated, Pritchett might have a valid claim against another entity or party. However, Pritch-ett has failed to demonstrate that the trial court erred in entering a judgment in favor of Mobile County.

2050668 — AFFIRMED.

2050785 — APPEAL DISMISSED.

CRAWLEY, P.J., and PITTMAN and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, without writing.

      . A handwritten notation in the case-action summary near the entry documenting the filing of the motion to consolidate the two actions reads “August 13, 2004 — withdrawn.” However, this court is unable to discern whether that handwritten notation was made in reference to the motion to consolidate or to a nearby entry documenting Mobile County’s filing of an opposition to the motion to consolidate the two actions.

      . The parties and the trial court refer to the 30-foot-wide strip of property interchangeably as a "right-of-way” and as a "public road.” In its judgment, the trial court found that the 30-foot-wide strip of land was dedicated as a public road in 1910. As discussed later in this opinion, the dedication of that property is deemed to have constituted a conveyance of that property in fee simple. Gaston v. Ames, 514 So.2d 877, 879 (Ala.1987). For the purposes of this opinion, we consider that 30-foot-wide strip of property as a public right-of-way dedicated for the purpose of creating a public roadway. Accordingly, we refer to the 30-foot-wide strip of land as a "right-of-way” and to the public road constructed thereon as a "public roadway” or "Fernland Road.”

      . The text of that section reads as follows:
      “Any street or alley shown by any map, plat or survey, whether such map or plat is executed and recorded as provided by law or not, may be vacated, in whole or in part, by the owner or owners of the lands abutting the street or alley (or that portion of the street or alley desired to be vacated), or their executors, administrators or guardian, joining in a written instrument declaring the same to be vacated, such written instrument to be executed, acknowledged and recorded in like manner as conveyances of land, which declaration being duly recorded shall operate to destroy the force and effect of the dedication by the map, plat or survey and to divest all public rights, including any rights which may have been acquired by prescription, in that part of the street or alley so vacated. If any such street or alley is within the limits of any municipality, the assent of the mayor and aldermen or other governing body of the municipality must be procured, evidenced by a resolution adopted by such governing body, a copy of which, certified by the clerk or ministerial officer in charge of the records of the municipality must be attached to, filed and recorded with the written declaration of vacation. Convenient means of ingress and egress to and from their property shall be afforded to all other property owners owning property in the tract of land embraced in the map, plat or survey, either by the remaining streets and alleys dedicated by such map, plat or survey or by any other street or alley being dedicated. If such street or alley has been or is being used as a public road and outside of any municipality, the assent of the county commission of the county in which the property is situated must be procured, evidenced by resolution adopted by such county commission, a copy of which, certified by the presiding officer thereof, must be attached thereto, filed and recorded with the declaration of vacation.”


author: WISE, Judge. COBB, Judge

text:
    Curtis Allen CONELL v. STATE of Alabama.
    CR-04-2431.
    Court of Criminal Appeals of Alabama.
    June 30, 2006.
    Rehearing Denied Aug. 11, 2006.
    Certiorari Denied Dec. 8, 2006 Alabama Supreme Court 1051690.
    J.E. Sawyer, Jr., Enterprise, for appellant.
    Troy King, atty. gen., and Kevin W. Blackburn, asst. atty. gen., for appellee.
   WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and BASCHAB, J., concur. SHAW, J., concurs in the result. COBB., J., dissents, with opinion.

COBB, Judge

(dissenting).

Probably one of the most difficult tasks any appellate court faces is reversing a sexual-abuse case involving children. Nevertheless, our Court is bound by the decisions of the Alabama Supreme Court, and a careful review of precedent causes me to dissent from the result reached by the majority in its unpublished memorandum in this case.

Curtis Allen Conell was charged in a single indictment with two counts of first-degree sexual abuse, § 13A-6-66, Ala. Code 1975, and one count of failing to register as a sex offender, § 13A-11-200, Ala.Code 1975. Conell moved to sever the charges, arguing that the three charges should be tried separately. He argued that the joinder of the failure-to-register count with the sexual-abuse counts was most prejudicial and that the jury would be biased against him in the sexual-abuse cases based solely on hearing the failure-to-register charge read from the indictment. The trial court denied the motion, and the three charges were then tried together. Conell was convicted of two counts of first-degree sexual abuse. As to the failing-to-register charge, the trial court granted Conell’s motion for a judgment of acquittal made at the conclusion of the State’s case, finding that the State had failed to prove a prima facie case.

On appeal, Conell argues that the trial court abused its discretion when it denied his motion to sever. He argues that he suffered compelling prejudice because the three charges were tried together. In its unpublished memorandum, the majority affirms Conell’s convictions, holding that the trial court did not err in denying the motion to sever because Conell filed his motion past the deadline established in Rule 13.4(b), Ala. R.Crim. P. While I acknowledge that Conell failed to file the motion to sever within seven days after arraignment or the entry of a plea of not guilty, I believe that the untimely filing was not fatal to his claim because Alabama caselaw does not hold such a failure to be fatal.

In Ex parte Pincheon, 751 So.2d 1219 (Ala.1999), the Alabama Supreme Court reversed this Court’s judgment, in an unpublished memorandum, in a case in which we had determined that the defendant’s motion to sever had been untimely filed and that the trial court had not erred in denying that motion. Pineheon was charged with interference with custody as to one victim and with two counts of rape as to a second victim. Although the Alabama Supreme Court acknowledged in its opinion that Rule 13.4(b), Ala. R.Crim. P., sets a time limit for filing a motion to sever, the Court analyzed the merits of Pincheon’s argument and quoted extensively from Kennedy v. State, 640 So.2d 22 (Ala.Crim.App.1993), in which this Court noted the prejudice inherent in being forced to defend against a charge of rape and charges of production of obscene matter. The Court in Ex parte Pineheon concluded:

“Here, the charges against Pineheon are not of the same or of a similar character, they are not based on the same conduct, and they are not alleged to have been part of a common scheme or plan. In addition, the charges relate to two separate victims. The only connection is that the alleged victims are sisters. Consistent with the conclusion of the Court of Criminal Appeals in Kennedy, we conclude that there is an obvious prejudice to the defendant inherent in his being forced to defend against the charge of interference with the custody of J.K., when he was additionally charged with first- and second-degree rape of M.K. We believe this prejudice is a ‘compelling prejudice’ that requires a conclusion that the trial court abused its discretion in not granting a severance.”

751 So .2d at 1223.

The State argues in its brief to this Court that “the ruling in Pineheon is an aberration.” (State’s brief at p. 10.) While I agree that the holding in Ex parte Pincheon appears to conflict with Rule 13.4(b), the case remains the law of the State and cannot be ignored. The majority has attempted to distinguish Ex parte Pincheon, but I believe its attempt fails. The majority contends that, because the charges were originally in separate indictments and later joined in a single indictment, Pincheon’s attorney could not have known that the prosecutor intended to try the cases together. The majority contends that the Alabama Supreme Court in Ex parte Pincheon “appeared to treat the Pineheon case under Rule 13.3(c), Ala. R.Crim. P.,” as if the charges were consolidated after being listed in separate indictments. I find no support for either of the majority’s assertions.

As to the majority’s assertion that Pin-cheon’s attorney could not have known that the cases would be tried together, I note that, .in this Court’s unpublished memorandum in that case, we stated that Pincheon appeared with counsel at arraignment, that he waived reading of the indictment that contained all of the charges, and that he pleaded not guilty; we concluded that “the appellant was clearly aware of each of the charges against him, but he made no attempt to obtain a severance within the time periods set forth in Rule 13.4(b), Ala. R.Crim. P.” Pincheon v. State, 738 So.2d 940 (Ala.Crim.App.1998)(table). The Alabama Supreme Court’s opinion quotes from the argument Pincheon’s counsel made during the hearing on the motion to sever. The attorney argued that the State had filed a three-count indictment and that he was moving for a severance “ ‘based on the fact that it is my understanding that the two cases [interference with custody of a minor and two counts of rape] will be tried as one,’ ” and that it would be prejudicial to try them together because the charges were not similar. Ex parte Pincheon, 751 So.2d 1219, 1221 (Ala.1999). As the majority here has noted in its unpublished memorandum, Rule 13.3(d), Ala. R.Crim. P., provides that offenses charged in the same indictment shall be tried jointly unless they are severed; thus, Pincheon was charged with notice that the three cases would be tried together unless he filed a motion to sever.

As to the majority’s second assertion, that Ex parte Pincheon is distinguishable from the present ease because the Alabama Supreme Court appeared to treat that case as if the charges had been filed in separate indictments and consolidated pursuant to Rule 13.3(c), Ala. R.Crim. P., I find nothing in the Supreme Court’s opinion to support this claim. Rule 13.3(c) is not applied or, indeed, even mentioned.

The majority concludes that the Alabama Supreme Court’s holding in Ex parte Pincheon does not apply here because the holding in Ex parte Pincheon was based on the specific facts of that case. However, the facts presented here are so similar to those in Ex parte Pincheon that I am convinced that Ex parte Pincheon is controlling. Because that Court held that the prejudice Pincheon suffered as a result of being compelled to defend against charges of rape and a separate charge of interference with custody, “is a ‘compelling prejudice’ that requires the conclusion that the trial court abused its discretion in not granting a severance,” Ex parte Pincheon, 751 So.2d 1219, 1223 (Ala.1999), I believe that the same conclusion is mandated here.

Although I have concerns about the two sexual-abuse charges being tried together for the reasons stated in Ex parte Pincheon and quoted above, I am even more concerned about the failure-to-register charge, Count III, being tried together with those charges. As Conell argued in his motion to sever:

“[The failure-to-register] count is arguably most prejudicial of all in that the mere reading of the indictment by the prosecution or the Court at the outset of these proceedings guarantees a prejudice and unfairness that cannot be cured by any comment or instruction given by the Court. In the atmosphere in which this case is being tried, prejudice against the Defendant obtaining any semblance of a fair and impartial trial; where daily bulletins, and ‘Amber Alerts’ appear not only on television and in the newspapers, but indeed on interstate highway signs and through text messages on cellular telephones each detailing the latest case of a missing child or an unregistered sex offender, generates a burden so heavy on this Defendant, charged as he is by Counts I and II, that for any juror to realistically accord him the presumption of innocence not only strains credulity, it breaks its back.
“If allowed to proceed without severance of Count III, the prosecution has guaranteed that the Defendant’s prior conviction for an assumed sexually related offense is brought to the attention of the jury whether the Defendant exercises his right to testify or not, inflaming the members of the petit jury and, from the very outset of this trial, creating the impression that the Defendant is a sexual predator not entitled to any presumption of innocence. The creation of such unfairness and prejudice in a criminal trial is exactly the evil which the Constitutional guarantees of a fair and impartial trial seek to prevent and, in and of themselves, are sufficient to mandate a severance of Count III from the other two counts in this indictment.”

(C. 71-72.)

At the hearing on the motion to sever, trial counsel stated that he was aware of the time constraints in rule, but that he was appointed long after Conell had been arrested and had filed his not-guilty plea. (R. 6.) He stated he “got in this case” less than one week before trial began. (R. 9.) Counsel argued:

“When you wake up this morning as I did and the headlines in the Dothan Eagle relate to some kind of sex offender law, these jurors have all watched this and seen this over and over and over, and when the Court or the district attorney reads that indictment to these jurors, and that message is conveyed to them, this man is going to be so severely prejudiced just by having been associated with that in a completely and totally unrelated situation to the other two counts, that it’s going to be impossible for this Court to cure it by any comment or charge or anything else.”

(R. 10.)

As so clearly argued by trial counsel in his motion and at the hearing, Conell suffered “obvious prejudice” by being forced to defend against the failure-to-register charge and the unrelated sexual-abuse charges in the same trial. Based on the Alabama Supreme Court’s holding in Ex parte Pincheon, I must conclude that the trial court abused its discretion when it forced Conell to defend against the failure-to-register charge at the same time he was tried for the sexual-abuse charges; the prejudice he suffered as a result of the jury’s being informed that he had a prior sexual-abuse conviction is the very kind of “compelling prejudice” the Alabama Supreme Court found in Ex parte Pincheon. Conell’s convictions should be reversed. Therefore, I must dissent.


author: PER CURIAM.

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (No. 2005-6).
    No. SC05-1651.
    Supreme Court of Florida.
    May 3, 2007.
    The Honorable Terry David Terrell, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, FL and the Honorable Dedee S, Costello, Past Cham, Fourteenth Judicial Circuit, Panama City, FL, for Petitioner.
    Lee G. Cohen, Assistant State Attorney, Seventeenth Judicial Circuit, Fort Lauder-dale, FL and Bob Dillinger, Public Defender, Sixth Judicial Circuit, Clearwater, FL, Responding with comments.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted new instructions and proposed changes to the standard jury instructions in criminal cases. The Committee asks the Court to authorize for publication and use the amended standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amendments to standard jury instructions 28.9, No Valid Driver’s License, and 28.11, Driving While License Suspended, Revoked or Canceled With Knowledge. The Committee also proposes two new standard jury instructions, 28.9(a), No Valid Commercial Driver’s License, and 28.11(a), Driving While License Revoked as a Habitual Traffic Offender. On September 15, 2005, the Committee filed its proposals, which are in response to (1) comments received by the Committee from members of The Florida Bar; and (2) changes in the statutes that require new or amended instructions.

The Court published the proposals for comments in the October 15, 2005, edition of The Florida Bar News. Comments were due by November 15, 2005. Two comments were timely filed with the Court. Prior to the comments being filed with the Court, on November 2, 2005, the Committee filed an amended instruction 28.11, Driving While License Suspended, Revoked, or Canceled With Knowledge, due to errors found. After the amendments were published, the Committee requested leave to file an amended instruction 28.11 and ultimately requested leave to file an amended report, which was granted.

We specifically note that the revised instructions, which include a moped within the definition for “motor vehicle,” make the instructions consistent with State v. Meister, 849 So.2d 1127 (Fla. 4th DCA 2003). See also Verrecehio v. State, 896 So.2d 958 (Fla. 5th DCA 2005); Williams v. State, 858 So.2d 375 (Fla. 3d DCA 2003); Wood v. State, 717 So.2d 617 (Fla. 1st DCA 1998); Jones v. State, 721 So.2d 320 (Fla. 2d DCA 1998); Soto v. State, 711 So.2d 1275 (Fla. 4th DCA 1998).

Having considered the Committee’s amended report, we hereby authorize the publication and use of the instructions as set forth in the appendix to this opinion. In so doing, we express no opinion on the correctness of the instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions, nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining, and deleted language is struck-through. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

28.9 NO VALID OPERATORS OR CHAUFFEUR’S DRIVER’S LICENSE

§ 322.03, Fla. Stat.

To prove the crime of No Valid Operator’s — or Chauffeur’s Driver’s License, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) drove a motor vehicle upon a highway in this state.

2. At the time, The defendant [he] [she] did not have a valid operator’s or chauffeur’s driver’s license issued recognized by the Department of Highway Safety and Motor Vehicles of the State of Florida.

Definitions.

§ 322.01(15), Fla. Stat.

“Drive” means to operate or be in actual physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic.

■§§-3-16.003(2),-&-316,003(21) § 322.01(26), Fla. Stat.

L “Motor vehicle” means any vehicle which is self-propelled, including a “moped,” (and every-vehiele which is-propelled by electric power obtained — fi?em—overhead—trolley

wires, but not-operated upon rails),

but not including any bicycle or “moped” vehicle moved solely by human power, motorized wheelchair or motorized bicycle.

& “Valid operator’s or — chauffeur’s driver’s license” is means a operator’s or chauffeur’s driver’s license received from recognized by the department Department of Highway Safety and Motor Vehicles which has not expired, been suspended, revoked or canceled.

§ 322.01(40)(38), Fla. Stat.

⅜ “Street or Highway” means the entire width between the boundary lines of every way or place publicly — maintained--when if any part thereof is open to the use of the public for purposes of vehicular travel-traffic.

Optional Definitions.

L “Expired” means the license was not renewed on or before the expiration date.

§ 322.01(42)(a)(39), Fla. Stat.

2, “Suspended” means the privilege to drive a motor vehicle has been temporarily withdrawn.

§ 322.01 (12)(b)(35), Fla. Stat.

3* “Revoked” means the privilege to drive a motor vehicle has been terminated.

§ 322.01(42)(c)(5), Fla. Stat.

L “Canceled” means that a license which- was issued through error or

fraud has been declared void and terminated.

“Actual physical control” of a motor vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, re-

gardless of whether [he] [she] is actually operating the vehicle at the time.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981, and amended in 2007.

28.9(a) NO VALID COMMERCIAL DRIVER’S LICENSE

§ 322.03, Fla. Stat.

To prove the crime of No Valid Commercial Driver’s License, the State must prove the following two elements beyond a reasonable doubt:

L (Defendant) drove a commercial motor vehicle upon a highway in this state.

2. At the time, the defendant did not have a valid commercial driver’s license issued by the Department of Highway Safety and Motor Vehicles of the State of Florida.

Definitions.

§ 322.01(15), Fla. Stat

“Drive” means to operate or be in actual physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic.

§ 822.01(26), Fla. Stat.

“Motor vehicle” means any vehicle which is self-propelled, including a “moped,” but not any vehicle moved solely by human power, motorized wheelchairs or motorized bicycles.

§ 322.01(8), Fla. Stat.

“Commercial motor vehicle” means any motor vehicle used on the streets or highways, which:

a.Has a gross vehicle weight rating of 26,001 pounds or more;

b. Is designed to transport more than 15 persons, including the driver, or;

c. Is transporting hazardous materials and is required to be placarded in accordance with Title 49 C.F.R. part 172, subpart F.

§ 822.01(7), Fla. Stat.

“Valid commercial driver’s license” means a Class A, Class B, or Class C driver’s license issued by the Department of Highway Safety and Motor Vehicles of the State of Florida which has not expired, been suspended, revoked or canceled.

§ 822.01(38), Fla. Stat.

“Street or Highway” means the entire width between the boundary lines of every way or place if any part thereof is open to the use of the public for purposes of vehicular traffic.

Optional Definitions.

“Expired” means the license was not renewed on or before the expiration date.

§ 322.01(39), Fla. Stat.

“Suspended” means the privilege to drive a motor vehicle has been temporarily withdrawn.

§ 322.01(35), Fla. Stat.

“Revoked” means the privilege to drive a motor vehicle has been terminated.

§ 322.01(5), Fla. Stat.

“Canceled” means that a license has been declared void and terminated.

“Actual physical control” of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

Lesser Included Offenses

No Valid Commercial Drivers License — § 322.03

CATEGORY CATEGORY FLA. INS-ONE_TWO_STAT. NO.

No Valid Driver’s License 322.03 28.9

Comment

This instruction was adopted in 2007.

28.11 DRIVING WHILE LICENSE SUSPENDED, REVOKED OR CANCELED-LICENSE, WITH KNOWLEDGE

§ 322.34(2), Fla. Stat.

To prove the crime of Driving wWhile this] — [her-]- Operator’s or Chauffeur-s [License] [or-Driving Privilege] is [Canceled]. — [Suspended], [Revoked], [Suspended], [Revoked], [Canceled], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) drove a motor vehicle upon a highway in this state.

2. At the time, Bjjhis] [her] [license] or [driving privilege] was [canceled], [suspended], [revoked],[suspended] [revoked] [canceled].

3. Notice of [cancellation], [suspension], [revocation-]-was given to the-defendant. At the time (defendant) drove a motor vehicle upon a highway in this state, (defendant) knew that [his] [her] [license] [driving privilege] was [suspended], [revoked], [canceled].

Whether (defendant) knew of the [suspension] [revocation] [cancellation] is a question to be determined by you from the evidence.

Give as applicable. See § 322.251(1), (2), and § S22M&), (3), (If), Fla. Stat.

Proof that there exists an entry in the records of the Department of Highway Safety and Motor Vehicles showing that notice of the [suspension] [revocation] [cancellation] was given by personal delivery is proof that such notice was given.

Proof that there exists an entry in the records of the Department of Highway Safety and Motor Vehicles showing that notice of the [suspension] [revocation] [cancellation] was deposited in United States mail, first class, postage prepaid, addressed to the licensee at [his] [her] last known mailing address furnished to the department, is proof that such notice was sent.

If you find that (defendant) had been previously cited for driving while license [suspended] [revoked] [canceled] and [his] [her] license had not been reinstated, you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

If you find that (defendant) admitted to knowing of the [suspension] [revocation] [cancellation], you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

If you find that (defendant) had received a traffic citation that contained a provision notifying (defendant) that [his] [her] license had been suspended, revoked, or canceled, you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

Do not (jive if the suspension was for failure to pay a traffic fine or for a financial responsibility violation. See § 322.3⅛(2) and § 322.251(1), (2), Fla. Stat.

If you find that (defendant) had received a [judgment] [order] rendered by [a court] [an adjudicatory body] which contained a provision notifying (defendant) that [his] [her] license had been [suspended] [revoked] [canceled], you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

If you find that the records of the Department of Highway Safety and Motor Vehicles include a [judgment] [order] rendered by [a court] [an adjudicatory body] which contains a provision notifying (defendant) that [his] [her] license had been [suspended], [revoked] [canceled], you are permitted to assume that (defendant) knew [his] [her] license was [suspended] [revoked] [canceled]. This presumption, however, is rebutta-ble, and you may accept or reject the presumption depending upon the circumstances of the crime and the facts presented at trial.

Definitions.

§ 322.01(15), Fla. Stat.

“Drive” means to operate or be in actual physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic.

§ 322.01{2)(26), Fla. Stat.

⅛ “Motor vehicle” means any vehicle which is self-propelled, including a “moped,” (and every-vehicle-which is propelled by electric power obtained from overhead trolley wires-but not operated upon rails) excluding any bicycle but including any “moped” but not any vehicle moved solely by human power, motorized wheelchair or motorized bicycle.

§ 322.01[1Q)(38), Fla. Stat.

¾ “Street or Highway” means the entire width between the boundary lines of every way or place publicly maintained when if any part thereof is open to the use of the public for purposes of vehicular travel traffic.

§ 322.251, Fla. Stat.

⅜ “Notice” means personal delivery or deposit in the United States mail in an envelope-marked certified mail, first class, postage prepaid, addressed to the defendant at [his] [her] last known address furnished to the Department of Highway Safety and Motor Vehicles. Mailing by the department shall constitute notification.

Optional Definitions._

§ 322.01(12)(a)(39), Fla. Stat.

⅛ “Suspended” means the privilege to drive a motor vehicle has been temporarily withdrawn.

§ 322.01(12)-(b)(35), Fla. Stat.

2NRevoked” means the privilege to drive a motor vehicle has been terminated.

§ 322S1 (12)44322.01 (5), Fla. Stat.

& “Canceled” means that a license which was issued-through-error or fraud has been declared void and terminated.

“Actual physical control” of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

§ 322.251(1), Fla. Stat.

Failure by the defendant to receive the mailed order shall not affect or stay the effective date or term of the [cancellation], [suspension], [revocation] of the defendant’s driving privilege.

Lesser Included Offenses

No lesser included offenses have been identified for this offense,

SUSPENDED, REVOKED OR CANCELED LICENSE — § 322.34

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

No Valid Driver’s License 322.03 28.9

Comment

This instruction was adopted in 1981, and amended in 2007 to reflect Laws of Florida 97-300, Section 40, effective October 1,1997.

28.11(a) DRIVING WHILE LICENSE REVOKED AS A HABITUAL TRAFFIC OFFENDER

§ 822.8M5), Fla. Stat.

To prove the crime of Driving While License Revoked as a Habitual Traffic Offender, the State must prove the following two elements beyond a reasonable doubt:

L (Defendant) drove a motor vehicle upon a highway in this state.

2. At the time, (defendant’s) license was revoked as a habitual traffic offender.

Definitions.

§ 322.01(15), Fla. Stat.

“Drive” means to operate or be in actual physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic.

§ 822.01(26), Fla. Stat.

“Motor vehicle” means any vehicle which is self-propelled, including a “moped,” but not any vehicle moved solely by human power, motorized wheelchair or motorized bicycle.

§ 322.01(38), Fla. Stat.

“Street or Highway” means the entire width between the boundary lines of every way or place if any part thereof is open to the use of the public for purposes of vehicular traffic.

“Habitual traffic offender” is any person whose record, as maintained by the Department of Highway Safety an Motor Vehicles, shows that [he] [she] has been designated a Habitual Traffic Offender, resulting in [his] [her] privilege to drive a motor vehicle having been revoked.

§ 322.01(35), Fla. Stat.

“Revoked” means the privilege to drive a motor vehicle has been terminated.

Optional Definition.

“Actual physical control” of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

Lesser Included Offenses

Driving While License Revoked as a

Habitual Traffic Offender — § 322.34(5)

CATEGORY CATEGORY FLA. INS-ONE_TWO_STAT. NO.

No Valid Driver’s License 322.08 28.9

Comment

This instruction was adopted in 2007.


author: ALTENBERND, Judge. WHATLEY, Judge,

text:
    Patrick W. BRANNON and Kathryn C. Brannon, Appellants, v. Steven W. BOLDT, Mary Anne Pittman, Thomas Brizzi, Saira Brizzi, Dane Disano, Sharon Disano, Harry Gieschen, Cindy A. Gieschen, George Hartman, Mary Hartman, Phyllis Wellman Hainsworth, Tom Holdstein, Nancy Holdstein, Theodore Henter, Mary Henter, Larry Lynch, Robin Roberson, Harold H. Mazhimer, Thelma R. Maxhimer, Allen E. Oster, Suzanne Oster, Helen B. Pond, Steven Sanders, Cynthia A. Sanders, Charles Sciandra, Doris Sciandra, Michael J. Sieber, Rea Sieber, Mark P. Togna, Julianne Martin, and Ruth Vincent, Appellees.
    No. 2D03-4477.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2007.
    Rehearing Denied Feb. 21, 2007.

      Richard M. Hanchett and Marie Tomas-si of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., Tampa, for Appellants.
    Henry G. Gyden, John R. Blue, Sylvia H. Walbolt, and Lee H. Rightmyer of Carlton Fields P.A., St. Petersburg, for Appellees.

      . Judges Wallace and LaRose are recused from this case.

   ALTENBERND, Judge.

This court has elected to review en banc a very narrow, but significant issue:

What rights do the residents in a neighborhood receive, as dominant estate holders under an implied easement created by a denotation on a plat map of an “easement for ingress and egress” to a body of water, when the servient estate is part of a residential lot on which there exists an occupied family dwelling?

The issue in this case arises directly from a dispute over the interpretation of this court’s opinion in Cartish v. Soper, 157 So.2d 150 (Fla. 2d DCA 1963). In Cartish, this court considered whether the dominant estate holders of a similar easement received riparian rights that could allow them to rebuild a dock at the water’s edge of the servient estate. We held:

Proceeding from the premise, admitted by appellants, that easement rights may be created by implication, it is clear that such riparian rights necessary and incidental to access and egress from the Bay were implicit in the reservation of the Parkway. Just as accreted land would necessarily be burdened by the easement as a necessary implication of the reservation, so too the right to build a dock to facilitate access to the waters is implied.
Accordingly, insofar as riparian rights are necessary to or consistent with the purposes of the easement, they are impliedly granted to appellees and, as a corollary, reserved from the appellant fee owners. Cf. Feig v. Graves, supra; City of Tarpon Springs v. Smith, 1921, 81 Fla. 479, 88 So. 613; Geigor [Geiger] v. Filor, 1859, 8 Fla. 325.

157 So.2d at 153-54.

Unlike the dominant estate holders in Cartish, the lot owners in the neighborhood involved in this case are not primarily seeking to build a dock. Instead, they are seeking the right to sit and stand on the lands within the easement to fish, watch fireworks, watch the sunset, and generally enjoy the view of Boca Ciega Bay. The servient estate — that is, the land subject to the easement — is otherwise owned and occupied by the Brannons, subject to the “easement for ingress and egress” given to the other lot owners by virtue of a notation on the relevant plat map. The Brannons perceive their neighbors to be trespassers on their property when they remain within the easement for periods longer than reasonably necessary to gain access to the water. The neighbors perceive that they have the right to stay within the easement for as long as they wish in order to enjoy their “riparian” rights.

If “good fences make good neighbors,” it is also true that bad easements can make for bad neighborhoods. The judges of this court have struggled to apply the Cartish tests — “such riparian rights necessary and incidental to access and egress” and “necessary to or consistent with the purposes of the easement” — in this case. It appears from the concurring opinion in Cartish that the judges in that case did not resolve the broader issue that faces us today. See 157 So.2d at 154 (White, J., concurring specially). Realizing that there are many neighborhoods in Florida affected by similar plat maps and that confusion in this area of the law can create great friction and hostility within a neighborhood, we have concluded that this matter is one of “exceptional importance” warranting the collective judgment of all active members of this court. See Fla. R.App. P. 9.331(a). We likewise certify to the Supreme Court of Florida the issue stated at the beginning of this opinion as a question of great public importance.

I. THE BASIC LAYOUT OF BAY PARK GARDENS

This case involves a neighborhood that is west of Park Street on 37th Avenue North in St. Petersburg, Florida. Thirty-seventh Avenue essentially dead ends at Boca Ciega Bay. This neighborhood was platted as “Bay Park Gardens” in 1953. It was designed to include twenty-two lots along 37th Avenue North and four tracts of land near the water’s edge. The four tracts were designated A, B, C, and D (Appendix A, Plat Map). The original developer was Chestley E. Davis. In 1958, he sold tracts A and B to William and Virginia Norris, who built a personal residence on the two lots. Thus, for all practical purposes, these two tracts have been a single lot since the late 1950s. As explained later, the Brannons now own the home built by the Norrises.

An examination of the original plat map reveals much about Mr. Davis’s vision as a developer. None of the lots along 37th Avenue North had direct access to the water. The two most valuable tracts, C and D, each had approximately 100 feet of waterfront with the tracts extending down to the mean high-water mark. Without an easement, there would have been limited ability to have a driveway into tracts C and D, and no ability to reach tracts A and B. Thus the development was platted with a twenty-two-foot-wide easement running north and south at the eastern edge of tracts C and D, primarily to give automobile access to those lots. At the north end of this easement, Mr. Davis designated an easement running east and west. Mr. Davis placed the entire twenty-two-foot east/west easement on tracts A and B, the land he developed for himself (Appendix B, Detail from Plat Map). The entire grant of easement states: “22' easement for ingress & egress and utilities.”

If Mr. Davis had only been concerned about motor vehicle traffic, the east/west easement could have ended at the eastern property line of tract B. However, he extended the twenty-two-foot easement to the mean high-water mark. By reference to the plat map in the deeds of all of the lots, the purchasers of those lots were given an easement by implication providing them with ingress and egress to the water at the mean high-water mark. Thus, the purchasers of the lots knew that although they would not own waterfront property, they were purchasing the right to reach the water in a convenient manner.

The vision of developers and the reality of development have often parted ways in Florida. In this case, Mr. Davis built a dock on the easement in 1957 or 1958. He reserved the north side of the dock for the owner of tract B, and he reserved the south side of the dock for the owners of the other lots. The dock was short-lived. It was destroyed by a hurricane in 1960 and was never rebuilt. The Norrises built their home on tracts A and B, positioned so the easement runs down the driveway, adjacent to the garage and very close to their living room and kitchen before it enters the backyard. Thus, at least psychologically, anyone who owns the home on tracts A and B will always have a sense that neighbors are invading their personal space when the neighbors use the easement.

The owners of tracts C and D, as well as Mr. Davis, also built a seawall on this property in 1957 or 1958. Like so many other seawalls, this wall kept the sea out, but it also tended to erode the beach available to the public below the mean high-water mark. Oysters built up adjacent to the seawall. At this time, there is little, if any, public beach below the mean high-water mark at the edge of the easement where any normal person would choose to fish or enjoy a sunset. Thus, the easement now runs to a location of little or no value to someone who holds only public riparian rights.

II. THE FIRST EASEMENT DISPUTE

This case is not the first dispute arising from this easement. When Mr. Davis and his wife conveyed tracts A and B to William and Virginia Norris in 1958, tract C was owned by the Guillaumes. A dispute arose between the Norrises and the Guill-aumes when the Norrises built a wall to separate tract C from tracts A and B. Tract C had been developed using a layout that provided no vehicular access to the Guillaumes’ backyard except via the easement. Thus, the wall prevented them from accessing their backyard.

On December 5, 1958, a final decree was entered in a lawsuit styled Bernard G. Guillaume & Ethylle Guillaume, his wife, Plaintiffs v. William Norris & Virginia Norris, his wife, Defendants, Chancery No. 48,803, and recorded in the public records of Pinellas County. The Guill-aume court stated:

The Court further finds that the plat of Bay Park Gardens was not ambiguous in any respect and that the designation of the 22-foot east-west easement for ingress, egress and utilities created an easement for the benefit of Tract “C” as well as all of the other lots and tracts in the subdivision.

This final decree granted the owners of tract C access down the easement “as is reasonably necessary” to enter their backyard, and it ordered the Norrises to remove a twenty-foot segment of the wall to allow access to tract C. The Norrises and Guillaumes later entered into a stipulation that permitted the owners of tracts A and B to install a gate of their choosing in the twenty-foot opening; however, no owner of those lots has done so.

This earlier lawsuit did not name the other neighbors as parties and did not address what, if any, riparian rights the neighbors may have by virtue of the language on the plat map. Thus, while we agree that the brief phrase, “22' easement for ingress & egress and utilities,” is not ambiguous, the earlier lawsuit did not discuss the Cartish test or resolve the nature of the “riparian rights necessary and incidental to access and egress,” 157 So.2d at 158, that are at issue in this case.

III. THIS EASEMENT DISPUTE

The Brannons purchased tracts A and B in December 2000. By that time, tracts C and D were no longer owned by the Guill-aumes but were owned by Mr. and Mrs. Henter. The Brannons installed two gates across the easement. They placed a security gate across their driveway at the front of the property and a second gate closer to the water that closed off their entire backyard. This gate is locked, rendering a portion of the easement inaccessible to the owners of the other lots in the neighborhood. As a result of these gates, a dispute over the easement erupted again and the entire neighborhood became interested in their rights to the easement.

The Henters and the other lot owners sued and sought a declaration that by virtue of the plat, the owners of the twenty-two lots in the subdivision had an easement by implication across the Brannons’ property and that they “own[ed] the right to use the East-West Easement for the purposes of ingress to and egress from Boca Ciega Bay, together with all riparian rights appurtenant thereto.” The lot owners’ specific argument was that

when the developers of the Subdivision conveyed property rights to create the East-West easement, they also implicitly and inherently conveyed the riparian rights associated with what is now the Brannons’ property. Thus, under Florida law ... they inherently and implicitly gave the landlocked property owners in the Subdivision a ... wide range of riparian rights.

Thus the lot owners argued that

the entire Subdivision enjoys riparian rights as a result of the easement, [and] all property owners in the Subdivision are permitted to enjoy the normal benefits of the waterfront within that 22-foot easement. Such landlocked “neighbors” may conduct activities such as fishing, boating, and even enjoying an unobstructed view of the water.

The Henters also claimed that they had the right to unobstructed access to their backyard via the easement and that the gate across the driveway constituted an unreasonable obstruction.

Following a lengthy evidentiary hearing, the trial court rejected the Brannons’ various defenses and found that the easement was created for the benefit of the owners of tract C to provide vehicular access to and from their backyard and for the benefit of the entire subdivision to provide access to and from the waters of Boca Ciega Bay. The court also found that because the easement provided for ingress and egress over lands reaching navigable waters, it “necessarily conveys the riparian rights associated with those lands.” The trial court concluded that these rights included the right to fish, to boat, “and most importantly, as this is the riparian right enjoyed most often by the plaintiff lot owners in this case, to enjoy a clear and unobstructed view over the waters.” The trial court also found that the lot owners had the right “to build a properly permitted dock or observation platform,” although it apparently is unlikely that such a permit could be obtained at this time in light of strengthened environmental regulations. Finally, the trial court found that the Brannons’ driveway gate was an unreasonable obstruction to the Henters’ right of passage and ordered it removed. It also placed some restrictions on the manner in which cars can be parked in the driveway.

The Brannons appealed the final judgment. Initially, this court issued a divided opinion in which an associate judge participated in the majority. Brannon v. Boldt, 81 Fla. L. Weekly D1260, 2006 WL 1194283 (Fla. 2d DCA May 5, 2006). The majority affirmed the trial court’s final judgment in all respects.

As to the dispute between the Brannons and the Henters concerning access to the Henters’ property and the interference of the gates, this court en banc now also affirms that portion of the trial court’s judgment without further discussion. Thus, we limit our en banc discussion to the nature and extent of the riparian rights transferred to the lot owners as an easement by implication.

IY. RIPARIAN RIGHTS NECESSARY TO AN IMPLIED EASEMENT

This is not a case involving an express easement where the rights are explained in detail in a recorded document. Instead, it is a case where the easement is implied from the recorded plat map. See, e.g., Tortoise Island Cmtys., Inc. v. Moorings Ass’n, 489 So.2d 22 (Fla.1986), quashing but adopting dissenting opinion in 460 So.2d 961 (Fla. 5th DCA 1984). Thus the issue is not what rights could be transferred to the lot owners in an express easement, but rather what riparian rights must be transferred to the lot owner because they are necessary to or consistent with the purposes of the implied easement.

Riparian rights are rights to use the water. Broward v. Mabry, 58 Fla. 398, 50 So. 826, 829 (1909). There are two categories of riparian rights. Id. at 830. The public has the right to use navigable waters for navigation, commerce, fishing, and bathing and “other easements allowed by law.” Id. Owners of riparian land share these rights with the public. Id. The public’s right to use navigable waters or the shore derives from the public trust doctrine. See Hayes v. Bowman, 91 So.2d 795, 799 (Fla.1957). The doctrine embodies the common law rule that the sovereign held title to all the land below the high-water mark in trust for the use of the people. Id.

The specific nature of the trust in favor of all the subjects ... was that those subjects should have the free use of such waters and shores. The waters ... were of common right, public for every subject to navigate upon and fish in without interruption; ... the shore was also of common right public. The use of each was in the subjects for the inherent privileges of passage and navigation and fishing, as public rights....

State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640, 643 (1893); see also Hayes, 91 So.2d at 799 (noting that the principle uses of the water were navigation, bathing, and fishing).

Private riparian rights to navigable waters are given to those whose land extends to the high-water mark. As explained in Broward:

Those who own land extending to ordinary high-water mark of navigable waters are riparian holders who, by implication of law, and in addition to the rights of navigation, commerce, fishing, boating, etc., common to the public, have in general certain special rights in the use of waters opposite their holdings; among them being the right of access from the water to the riparian land and perhaps other easements allowed by law. These special rights are easements incident to the riparian holdings, and are property rights that may be regulated by law, but may not be taken without just compensation and due process of law.

50 So. at 830. Florida has recognized greater private riparian rights than merely the right of access to and from the water. In Florida and in most other states, riparian owners take title to land added to their property by accretion and reliction. See Bd. of Trustees of the Internal Improvement Trust Fund v. Sand Key Assocs., Ltd., 512 So.2d 934, 936 (Fla.1987). Most notably and apparently unique to Florida, riparian owners have the right to an unobstructed view over the waters. See Thiesen v. Gulf, Fla. & Ala. Ry. Co., 75 Fla. 28, 78 So. 491, 507 (1917); see also Lee County v. Kiesel, 705 So.2d 1013, 1015 (Fla. 2d DCA 1998).

In this case, of course, there is no dispute that all of the parties have public riparian rights in the waters of Boca Ciega Bay. Thus, they are all free to boat and swim in the waters of the bay. If and when accretion were to add a sandy beach below the mean high-water mark in front of the seawall on the Brannons’ property, all members of the public could use that beach if they entered from the water, and the residents of this neighborhood would clearly be free to use the easement to gain access to the public beach to fish, watch fireworks, enjoy sunsets, and engage in typical beach activities.

But the current reality is that little or no land exists below the mean high-water mark at the location of the easement. From the record, it appears that the only way to fish or view a sunset from this location would require the use of land above the mean high-water mark and within the easement. This land is owned by the Brannons subject to the easement rights of the lot owners.

Under the holding in Cartish, it is clear that the lot owners have the legal right by virtue of the easement to apply for a permit to place a dock on the edge of the Brannons’ property, giving them access to the water. As mentioned earlier, this legal right is apparently illusory at this time because other zoning and environmental regulations may not authorize a dock. The long-existing seawall would make it impossible to launch any sizeable craft from this location, but the lot owners do have a right of access to cross the Brannons’ property with a canoe, a small boat, or a floatation device that could be launched over the seawall.

However, the primary right that the lot owners wish to possess is the right to view the water from the land within the easement. If the easement by implication gives them all of the riparian rights of the Brannons, including the right to a view, then there is a good argument that they can view the water, sunsets, and fireworks from this portion of the Brannons’ backyard.

We conclude that in the absence of a more elaborate written easement, the purpose of this implied easement is merely to give the lot owners access, i.e., ingress and egress, to the water and to the public riparian rights possessed by all people below the high-water mark. See Feig v. Graves, 100 So.2d 192 (Fla. 2d DCA 1958) (explaining that purpose for which the easement was granted determines the riparian rights necessarily included within such an easement). To achieve that purpose they receive the right to cross the Brannons’ property in a reasonable amount of time, but they do not receive the right to fish from or remain on the Brannons’ property for extended periods. The right to view the water, albeit a private riparian right, is not a right necessary to or consistent with the purpose of this implied easement.

By way of analogy, we note that this property also borders on a public park. If the easement had been given as an ingress and egress easement to the public park, no one would argue that the lot owners received the right to linger in the easement. They would merely receive the right to cross the easement to reach and enjoy the public park. We conclude that the right of ingress and egress to the location where public riparian rights commence, i.e., the mean high-water mark, is essentially no greater than the right of ingress and egress to an adjacent parcel of land.

In sum, the lot owners have the legal right to build a dock at the water’s edge of this easement if otherwise permitted by law. They have the right to cross the property without undue delay to reach any area below the mean high-water mark where public riparian rights exist. They may cross the property to launch any small boat, canoe, or floatation device that can be reasonably launched from the existing seawall. They do not have the right to remain within the easement for extended periods to view the water, fireworks, or the sunset.

Affirmed in part, reversed in part, and remanded.

FULMER, C.J., and NORTHCUTT, CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, KELLY, CANADY, VILLANTI, JJ., Concur.

WHATLEY, J., Concurs in part; dissents in part.

WHATLEY, Judge,

Concurring in part; dissenting in part.

I concur in part and dissent in part. I concur as to the majority’s conclusion regarding the gate issue. I respectfully dissent as to the majority’s conclusions regarding the scope and use of the easement by the dominant estate owners (lot owners). The issue is the same as was before the court in Cartish: Whether riparian rights were implicit in the easement rights reserved to the benefit of the lot owners. 157 So.2d at 153. It is of no bearing whether the fee owner has erected a dwelling on the land or whether that dwelling is occupied.

The easement measures 22 feet wide and 347 feet in length, terminating at the waters of Boca Ciega Bay. I concur with the trial court and the 1958 final decree that the easement language is unambiguous. As the trial court aptly noted: “This court further finds that an easement providing ‘ingress and egress’ over lands reaching navigable waters necessarily conveys the riparian rights associated with those lands. Cartish v. Soper, 157 So.2d 150 (Fla. 2d DCA 1963).” Cartish is the controlling case. It involved an easement in the same subdivision and to the same body of water as in this case. In addition, the language of the easement was virtually identical. The majority also found the easement language to be unambiguous, yet limited the use of the easement to the construction of a dock (if allowable) and to entry into the waters of the bay. This is where I believe the majority in the present case erred. The majority concluded that without a “more elaborate written easement,” the rights of the lot owners are vastly restricted. The opposite is true. An easement such as this cannot arise without the participation of the fee owner. Here, that was Mr. Davis. Davis could have inserted limiting language in the easement, but he did not. Feig, 100 So.2d at 195, confirmed this premise in stating: “A dedicator may reserve all riparian rights appurtenant to the land encumbered by the easement dedicated.” Limiting language was contained in the easement in Hume v. Royal, 619 So.2d 12 (Fla. 5th DCA 1993). In contrasting Cartish, the Hume court stated: “The easement granted in Cartish simply did not contain the restrictive language which we find in this case.” Id. at 14. The lot owners in Cartish were seeking more than simply the right to construct a dock. The Cartish court stated: “In response to appellees’ prayer for a declaration of rights in the easement, the able chancellor determined that riparian rights were implicit in the easement rights reserved to the benefit of appellees.” 157 So.2d at 153.

Cartish did not limit the riparian rights of the lot owners seeking use of the easement. Riparian rights are few in number. The trial court delineated the riparian rights the lot owners could enjoy. They included the right to fish and enjoy views of and over the waters. These rights, as the trial court noted, also include the right to build a properly permitted dock or observation platform. However, the lack of a dock or related structure will not defeat or frustrate the other rights of the lot owners.

Even if the easement had been found to be ambiguous, the historical testimony at trial would have supported the same result.

Lastly, it has been noted that the terms riparian rights and littoral rights are now used interchangeably. Technically, riparian rights apply to a river or stream. Regarding riparian rights, Black’s Law Dictionary states: “Term is generally defined as the right which every person through whose land a natural watercourse runs has to benefit of stream as it passes through his land for all useful purposes to which it may be applied.” Black’s Law Dictionary 1327 (6th ed.1990). Riparian rights have become the common parlance, yet in our case the rights are actually littoral. Black’ s Law Dictionary defines littoral rights as “[rjights concerning properties abutting an ocean, sea or lake rather than a river or stream (riparian). Littoral rights are usually concerned with the use and enjoyment of the shore.” Id. at 934.

APPENDIX A

APPENDIX B

I would affirm the trial court in all respects.

      . Robert Frost, “Mending Wall,” Seven Centuries of Verse: English and American, 588 (Charles Scribners Sons, 3d ed., 1967).

      . The dissent suggests that it is of "no bearing” whether the owner of the servient estate has erected a dwelling on the parcel. While Judge Whatley may be entirely correct on this point, we have kept the issue on appeal as narrow as the facts of this case permit.

      . "In common usage 'riparian' is generally used to define property having water frontage. In fact, the term 'riparian' refers specifically to land abutting non-tidal or navigable river waters whereas 'littoral' refers to the land abutting navigable ocean, sea, or lake waters.” Kester v. Tewksbury, 701 So.2d 443, 444 n. 2 (Fla. 4th DCA 1997). Although the use of "riparian” in this case is technically incorrect, it is consistent with the accepted usage in Florida cases. See Bd. of Trustees of the Internal Improvement Trust Fund v. Sand Key Assocs., Ltd., 512 So.2d 934 (Fla.1987).

      . In most instances the easement is created by the owner of the fee. 20 Fla. Jur.2d Easements § 13 (2000).

      . Such testimony was elicited with regard to the abandonment issue raised by the Bran-nons.