author: BOWEN, Judge.

text:
    Anthony HOWARD v. STATE.
    1 Div. 176.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 1980.
    Troy E. Allen, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The petitioner, an inmate of the Draper Correctional Center in Elmore County, filed a petition for writ of habeas corpus alleging that his sentence of sixteen years’ imprisonment for a conviction under an indictment charging the unlawful sale of marijuana is excessive and illegal in that it exceeds the statutory limitations.

Habeas corpus is the proper writ in which to raise the court’s excess of jurisdiction. Alabama Code 1975, Section 15-21-24.

Alabama Code 1975, Section 20-2-70 provides a sentence of imprisonment of “not less than two nor more than fifteen years” for the sale of marijuana, the crime charged against the defendant. Plainly, the sentence of sixteen years’ imprisonment is illegal, and excessive in that it exceeds the sentence authorized by statute. The sentence imposed following conviction of a crime must conform to the statute and cannot exceed the term prescribed by law. Opinion of Clerk, Supreme Court, 347 So.2d 524 (Ala.1977); City of Birmingham v. Perry, 41 Ala.App. 173, 125 So.2d 279 (1960).

The judgment of the Circuit Court of Mobile County is hereby reversed and the cause is remanded. The Circuit Court is instructed and directed to vacate the void sixteen year sentence and to resentence the defendant within the limitations of Section 20-2-70 and according to the law of this State.

REVERSED AND REMANDED WITH DIRECTIONS.

All Judges concur.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Gwendolyn Jeanette YATES, alias v. STATE.
    5 Div. 526.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 1980.

      Charles Ned Wright, Wedowee, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

First degree manslaughter; sentence: three years’ imprisonment.

Between 10:30 and 11:15 a. m. on December 29, 1979, the appellant shot and killed her husband at her mobile home in Randolph County. The fatal shot, fired from a .22 caliber rifle, struck the victim in the heart. The evidence presented was conflicting and presented a question for the jury. We find the evidence sufficient for the jury to have found the appellant guilty of the instant offense. Consequently, the trial court properly overruled her motion to exclude the State’s evidence for failure to prove a prima facie case. Briggs v. State, Ala.Cr.App., 375 So.2d 530 (1979); § 13-1-90, Code of Ala. 1975.

I

Appellant contends that in eight instances the trial court improperly allowed the State to ask questions directed to her character and thereby injected prejudicial evidence into the trial.

In three of the eight instances, the question asked by the State was answered favorably to the appellant and did not prejudice her. A negative response from a witness to a question relating to a defendant’s prior misconduct causes no injury to the defendant. Hill v. State, Ala.Cr.App., 366 So.2d 296 (1978), affirmed, Ala., 366 So.2d 318 (1979). See also Barton v. State, Ala.Cr.App., 376 So.2d 756, cert. denied, Ala., 376 So.2d 761 (1979) and Frazier v. State, Ala.Cr.App., 365 So.2d 339 (1978).

The appellant’s objections in three other instances were sustained and thus there was no adverse ruling from which the appellant may appeal. Stinson v. State, 56 Ala.App. 312, 321 So.2d 277 (1975). We note that in one of those instances the trial court immediately instructed the jury to disregard the State’s question in order to eradicate any potential prejudice to the appellant.

In one instance the appellant did not object until after the question had been answered, and the objection was based upon relevancy rather than upon improper character evidence. Nevertheless, the trial court sustained the objection. See Stinson, supra. Likewise, the appellant failed to move to exclude the question and answer which would have amounted to a waiver had the trial judge not ruled favorably to the appellant. Burton v. State, Ala.Cr. App., 364 So.2d 394, cert. denied, Ala., 364 So.2d 397 (1978); Braxton v. State, Ala.Cr. App., 361 So.2d 1170 (1978).

Appellant’s last insistence of error in this regard concerns the following question propounded to Mrs. Jeanette Henderson, a neighbor of the appellant, and her answer:

“Q. How well would you say you know the defendant, Gwen Yates?
“JOHN TINNEY: Judge, I object to this, we’ve gone too far for a mistrial, but if Mr. Hamner is going to insist on going along this line of questioning, I’m going to move for one.
“COURT: Overruled, go ahead.
“A. I know her pretty well, have for the last 5 or 6 years.”

We are unable to see how the above question improperly elicits, either directly or indirectly, evidence of the appellant’s character as alleged in appellant’s brief. It merely attempts to establish that the witness knew the appellant and the witness’ opinion of the quality of their relationship. Neither the question nor the answer is prejudicial to the appellant; therefore, we find no error in the trial court’s overruling the appellant’s objection. Furthermore, we note that appellant’s argument on appeal is based on a ground not stated when the objection was made at trial. Consequently, an appellant is limited to those grounds raised at trial and may not expand them upon appeal. Likewise, a general objection is unavailing if the evidence is admissible for any purpose. Stringer v. State, Ala.Cr.App., 372 So.2d 378, cert. denied, Ala., 372 So.2d 384 (1979).

II

Appellant contends that the trial court erroneously allowed the State to introduce evidence of the amount of property in the victim’s estate through the testimony of the victim’s daughter, Linda Yates. The testimony was offered to establish a possible motive for the killing. Furthermore, the State, through the testimony of Mrs. Jeanette Henderson, established that the appellant, who had been previously married, had stated to her that “she left empty-handed from her first marriage, and she wasn’t leaving this marriage empty-handed.” Appellant had also stated to Mrs. Henderson that “if he [the victim] didn’t deed it [the property] over to her, she would kill him.” On another occasion the appellant had told the witness that “Emmitt could beat her, he could stomp her, but she wasn’t going to leave, and that she would kill him before she left and let him have everything.” We conclude that testimony concerning the amount of property owned by the victim was material and admissible as having a tendency to establish motive. Willis v. State, 37 Ala.App. 185, 66 So.2d 753, cert. denied, 259 Ala. 500, 66 So.2d 756 (1953); Gamble, McElroy’s Alabama Evidence, § 45.01(8) (3d ed. 1977).

Likewise, the State’s closing argument concerning the victim’s property did not constitute reversible error in light of the fact that the extent of the estate was admissible evidence at trial as tending to establish a motive for the homicide. The district attorney therefore had a right to comment on that evidence and draw reasonable inferences from it. Eddy v. State, Ala.Cr.App., 353 So.2d 67 (1977); Borden v. State, Ala.Cr.App., 337 So.2d 1388 (1976).

Ill

Appellant complains of three instances in the State’s closing argument wherein the prosecution made prejudicial comments to the jury.

In the first instance, the trial court sustained the appellant’s objection. Appellant did not move the trial court to exclude the comment or instruct the jury to disregard it. Therefore, no adverse ruling exists from which the appellant may appeal. Cagle v. State, 211 Ala. 346, 100 So. 318 (1924).

In the latter two instances, the trial court did not rule on the appellant’s objection. The record is void of any attempt by the appellant to invoke a ruling. “The general rule is that improper argument of counsel is not a ground for a new trial or subject to review on appeal unless there is due objection by counsel or a motion to exclude, an adverse ruling thereon by the court, or a refusal of the trial court to make a ruling.” (Emphasis added.) Lawson v. State, Ala.Cr.App., 377 So.2d 1115, cert. denied, Ala., 377 So.2d 1121 (1979). Consequently, no error was preserved in those instances for our review.

IV

Appellant asserts that the trial court committed reversible error in failing to charge the jury on the lesser included offense of second degree manslaughter. Appellant objected to the trial court’s oral charge, but did not submit a written requested charge covering the omitted matter.

In Smith v. State, 53 Ala.App. 657, 303 So.2d 157 (1974), we stated:

“[W]here a party desires the court to extend its oral charge to cover some applicable law in the trial of a case, his remedy is to request a written charge on the subject, which if refused would protect the record and present the matter to the Appellate Courts. The rules governing objections and exceptions to the oral charge of the court either in the matter of what the court says or does not say • require that if the objection is to what the court did say the remedy is only by exception thereto (Passmore v. State, 47 Ala.App. 189, 252 So.2d 115), and if the objection is to the court’s refusal or omission to charge on a particular subject applicable under the evidence the procedure is by way of a requested written charge. (Lewis v. State, 42 Ala.App. 166, 157 So.2d 38; Tranholm v. State, 38 Ala. App. 57, 77 So.2d 491).
“A failure to pursue one of the remedies above set out, if proper and applicable to the case, is a waiver of a review by this court as to the matters in question.”

See also Hall v. State, Ala.Cr.App., 375 So.2d 536 (1979). Consequently, the appellant did not properly preserve the question for review. Even had a charge been submitted on this point, it was not due to be given because the evidence does not reflect that the killing was either accidental or unintentional.

AFFIRMED.

All the Judges concur.


text:
    Richard E. LAKE, Jr. v. CITY OF BIRMINGHAM.
    6 Div. 275.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 1980.

      James L. O’Kelley, Birmingham, for appellant.
    W. O. MacMahon, III, Asst. City Atty., for appellee.
   BOOKOUT, Judge.

Appellant was convicted in Birmingham Municipal Court for concealing a felon in violation of City Code § 36-56 as it adopts § 13-9-2, Code of Ala.1975. On appeal to circuit court, a jury found the appellant guilty of the charge, and he was sentenced to six months’ hard labor and fined $750.

On September 23, 1979, Birmingham Police Officer Richard Stone recognized James Harley driving a vehicle on one of the city streets. He had knowledge that there was an outstanding warrant of arrest pending against Harley on a charge of grand larceny from Auburn, Alabama. Stone followed Harley’s car to the appellant’s apartment. Harley parked the car and went into the apartment. Shortly thereafter Harley came out of the apartment, but then turned around and talked briefly with the appellant on the porch. Harley handed the appellant a large key ring and then entered the apartment again. The appellant then got in Harley’s automobile and drove off. In the meantime police back-up units had arrived at the scene, and the apartment was under constant surveillance.

Sometime later the appellant returned to the apartment complex on foot. Officer Stone approached him and informed him that Harley was wanted on a grand larceny warrant from Auburn. Stone requested permission to enter the appellant’s apartment to make the arrest, but the appellant refused permission claiming that no one was in the apartment and that he had locked himself out and could not get in the apartment until his wife came home from work and let him in with her key. Two other officers, Sgt. Roy Cisco and Cpt. Jessie Sprayberry, separately talked to the appellant and asked permission to enter his apartment, but received the same reply as given to Stone. Finally the officers contacted the apartment manager who granted them permission to break a window and enter the apartment. They did so, and the appellant asked if he could go in first and help get Harley out. The group entered the apartment and with the aid of the appellant Harley was found hiding under a bed upstairs. Five days later police officers obtained a warrant for the appellant’s arrest on the instant charge.

I

At trial the appellant served as his own counsel. The first issue apparent in the record is whether the appellant intelligently and understanding^ waived his constitutional right to assistance of counsel.

The right to counsel attaches in all felony cases, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and in all misdemeanor cases involving the loss of liberty. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). However, on misdemeanor charges the right to counsel is limited to cases where a defendant is actually sentenced to jail. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). The Sixth Amendment right to counsel does not depend upon a request by the accused. Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971). If an accused waives his right to counsel, that waiver must be intelligently and understanding^ made and cannot be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). In Carnley the Supreme Court stated, at 513 and 516, 82 S.Ct. at 889 and 890:

“But it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request....
“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”

See also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

Of course the State cannot force counsel upon a defendant. Every defendant has a right to waive counsel and to conduct his own defense. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, the waiver must be intelligently and understandingly made, and we cannot assume that to be the case from a silent record as in the instant case. Boyd v. Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755 (1972). The record before us reveals none of the circumstances surrounding the appellant’s self-representation. Such a record, pursuant to the above cited cases, will not support the trial court’s judgment wherein the appellant was sentenced to a loss of liberty. The judgment of the trial court must, therefore, be reversed on that ground.

II

In addition to the jail sentence, the appellant was fined $750. The maximum fine allowed for violation of a municipal ordinance is $500. Section 11-45-9, Code of Ala.1975.

III

The elements of the instant offense consist of (1) knowledge of the accessory of the principal’s crime, (2) commission of a complete felony, and (3) active aid (passivity excluded). Rudolph v. State, 40 Ala.App. 398, 114 So.2d 299 (1959). Section 13-9-2, Code of Ala.1975, which defines the instant offense, concludes by providing that “if the principal felon is dead or has fled from justice, such accessory may be prosecuted and convicted before the principal; but in such case it shall be necessary to allege in the indictment and to prove on the trial the fact that the principal felon is dead or has fled.” (Emphasis added.)

Although the appellant was not represented by counsel, he nevertheless attempted to move to exclude the City’s evidence at the end of the City’s case in chief. At that point, he moved that “the charges be dismissed because the State [City] has failed to prove a case.” He argued to the trial judge that the evidence shows that he did not have a key and that he did not physically obstruct the police from going into the house. The trial judge replied:

“Is it your impression that once you learned there is a felon in there, which you did long before they got in? When they say is it all right with you-you haven’t got a key. Could we break a window in your house? You say no. Would you assist us in any manner? This is the testimony of Sprayberry. Whether it’s true or not, that’s not for me to say. When they say will you let us in or let us break in and you say no, that seems to me to be saying that you won’t help him. That’s what this ordinance, or this State Code, is supposed to cover.”

The appellant’s motion was denied on the erroneous supposition that failing to provide active aid to the officers is a violation of Code § 13-9-2. The testimony of the officers at the scene is in accord that none of them had an arrest warrant for Harley in hand. No one presented the appellant with an arrest warrant or a search warrant. The request that he open his house for a warrantless search or that he allow the officers to break into his home, if he had no key, could be legally refused by the appellant under the circumstances. The only evidence concerning a warrant for the arrest of Harley was that a warrant from Auburn was in the computer at the police department. The appellant was not obliged to open his home or allow a police break-in without being presented a valid warrant for Harley’s arrest, or a warrant to search the premises. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

The appellant’s motion to dismiss the charges for failure of the prosecution to prove a case is adequate to raise the issue of the sufficiency of the evidence on appeal, and the ruling on that motion is tested by the evidence at the time the motion is made. Kent v. State, Ala.Cr.App., 367 So.2d 508, cert. denied, Ala., 367 So.2d 518 (1978).

The City proved the first element of the offense, knowledge of the accessory of the principal’s crime. Likewise, there may have been sufficient evidence of active aid on the appellant’s part to submit that issue to the jury, even though the trial court considered the appellant’s passivity to be sufficient to present to the jury. Whether the appellant’s lying to the officers that Harley was not in his apartment is active aid need not be decided here. This is because the City completely failed to prove the second element of the offense, the commission of a complete felony. Duncan v. State, Ala.Cr.App., 338 So.2d 446 (1976).

The only evidence concerning the commission of a felony was that Harley was wanted on a grand larceny warrant out of Auburn, Alabama. In fact, there is positive testimony in the record that Harley had never been tried or convicted for such a felony. This brings us to the requirement in Code § 13-9-2 that “if the principal felon is dead or has fled from justice, such accessory may be prosecuted and convicted before the principal; but in such case it shall be necessary to allege in the indictment and to prove on the trial the fact that the principal felon is dead or has fled.”

In Duncan, supra, we stated:

“Not only is there no evidence of a completed felony on the part of the principal, neither is there any evidence that the principal had been convicted of a felony prior to the instant trial. ... ”

After setting out the pertinent part of § 13-9-2, supra, we found that from the wording of that section, “it appears that the legislature did not intend for accessories after the fact to be tried before the principal except where the principal is dead or has fled from justice. The instant record is completely silent on whether the principal ... was ever tried and convicted on any charge.”

The instant case contains the same fatal defects in this regard as did Duncan, supra. In addition to the defects pointed out in Sections I and II above, we find that the City failed to present sufficient evidence to support the elements of the offense in question. Pursuant to Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the reversal of a case on appeal for insufficiency of the evidence bars a new trial. Burks has been applied to the states via Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

REVERSED AND RENDERED.

All the Judges concur.

DeCARLO, J., concurs in result.


author: PER CURIAM.

text:
    Dr. Franklin D. CLONTZ, Petitioner, v. Kelly June BURCHETT, Respondent.
    No. 55537.
    Supreme Court of Florida.
    Oct. 30, 1980.
    Noah C. McKinnon, Jr. of Coble, McKin-non, Rothert, Bohner, Barkin & Godbee, Daytona Beach, for petitioner.
    T. G. LaGrone, Orlando, for respondent.
   PER CURIAM.

The petition for writ of certiorari is granted and the decision reported as Burchett v. Clontz, 363 So.2d 15 (Fla. 4th DCA 1978) is approved. See Aldana v. Holub, 381 So.2d 231 (Fla.1980), and Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla. 2d DCA 1978), approved, 384 So.2d 151 (Fla.1980).

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.


author: ALDERMAN, Justice. ENGLAND, Justice,

text:
    In re ESTATE of Leo GREENBERG, Deceased.
    No. 58794.
    Supreme Court of Florida.
    Oct. 30, 1980.

      I. Meyer Pincus, in pro. per.
    Gene Glasser of Abrams, Anton, Robbins, Resnick & Schneider, Hollywood, for the Greenberg Estate, appellee.
    Jim Smith, Atty. Gen. and Bruce Barkett and Thomas A. Beenck, Asst. Attys. Gen., Tallahassee, for Attorney General, amicus curiae.
    James G. Pressly, Jr. of Gunster, Yoakley, Criser & Stewart, Palm Beach, for The Florida Bar, Real Property, Probate and Trust Law Section, amicus curiae.
   ALDERMAN, Justice.

Meyer Pincus appeals an order of the circuit court denying his petition for appointment as a co-personal representative of the estate of Leo Greenberg. Upholding the constitutionality of sections 733.302 and 733.304, Florida Statutes (1977), the trial court denied this petition on the basis that Pincus was not a resident of Florida and was not related to Greenberg. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972). Against challenges that they violate the equal protection and due process clauses of the fourteenth amendment and the privileges and immunities clause of article IV, section 2 of the Constitution of the United States, we uphold the constitutionality of sections 733.302 and 733.304 and affirm.

Under these statutory provisions, a nonresident of Florida who is not related to decedent as specified in section 733.304 may not qualify as a personal representative. Pincus claims that the residency classification established by these statutes violates the equal protection clause of the fourteenth amendment and maintains that in evaluating his equal protection challenge, we should not apply the rational basis test normally applied in evaluating such challenges, but instead we should utilize the strict scrutiny test because the act impinges on the testator’s “fundamental” right to appoint his personal representative and fundamental right to travel and abridges Pincus’s right to pursue a livelihood.

The rational basis or minimum scrutiny test generally employed in equal protection analysis requires only that a statute bear some reasonable relationship to a legitimate state purpose. That the statute may result incidentally in some inequality or that it is not drawn with mathematical precision will not result in its invalidity. Rather, the statutory classification to be held unconstitutionally violative of the equal protection clause under this test must cause different treatments so disparate as relates to the difference in classification so as to be wholly arbitrary. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Walters v. City of St. Louis, 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660 (1954).

The strict scrutiny analysis requires careful examination of the governmental interest claimed to justify the classification in order to determine whether that interest is substantial and compelling and requires inquiry as to whether the means adopted to achieve the legislative goal are necessarily and precisely drawn. Examining Board v. Flores De Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976). This test, which is almost always fatal in its application, imposes a heavy burden of justification upon the state and applies only when the statute operates to the disadvantage of some suspect class such as race, nationality, or alien-age or impinges upon a fundamental right explicitly or implicitly protected by the constitution. Those fundamental rights to which this test applies have been carefully and narrowly defined by the Supreme Court of the United States and have included rights of a uniquely private nature such as abortions, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); the right to vote, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); the right of interstate travel, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); first amendment rights, Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); and procreation, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).

The Supreme Court of the United States has refused to expand fundamental rights beyond those explicitly or implicitly guaranteed by the constitution. Addressing the constitutionality of the Texas statutory system for public education against an equal protection challenge, the Supreme Court, in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), held that the financing system did not impinge on any fundamental right so as to call for application of the strict scrutiny test since education was not a right afforded explicit or implicit protection under the constitution. The Supreme Court carefully delineated the limits of the fundamental rights rationale in its equal protection decisions; explained that the Court does not pick out particular human activities, characterize them as fundamental, and then give them added protection; and emphasized that it was not within the Court’s province to create substantive rights in the name of guaranteeing equal protection. It declared that just because state legislation affects a matter gravely important to society, this is not a sufficient basis to characterize it as fundamental. See also Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). Rather, the Court stated that it merely recognizes an established constitutional right and gives to that right no less protection than the constitution itself demands.

Pincus characterizes as fundamental the testator’s right to appoint a personal representative, thus impelling application of the strict scrutiny test. We cannot agree since this right is not one explicitly or implicitly guaranteed by the constitution. In fact, the right to make a will and other matters relating thereto such as designation of a personal representative are rights created by statute. The constitution commits to the states the power to control the administration of the estates of their citizens. Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971); Demorest v. City Bank Farmers Trust Co., 321 U.S. 36, 64 S.Ct. 384, 88 L.Ed. 526 (1944). There is nothing in the federal constitution which would forbid the state legislature to limit, condition, or even abolish the power of testamentary disposition of property within its jurisdiction. We have ofttimes reiterated that the power to alienate property by last will and testament is not an inherent right of a citizen but rather is one derived from legislation. Efstathion v. Saucer, 158 Fla. 422, 29 So.2d 304 (1947); Taylor v. Payne, 154 Fla. 359, 17 So.2d 615 (1944), appeal dismissed, 323 U.S. 666, 65 S.Ct. 49, 89 L.Ed. 647 (1944); In re Sharp’s Estate, 133 Fla. 802, 183 So. 470 (1938). See also Simon, Redfearn Wills and Administration in Florida, 5th edition (1977), section 2.03. Notwithstanding the decision of the federal district court in Fain v. Hall, 463 F.Supp. 661 (M.D.Fla.1979), which we find to be wholly unpersuasive, we hold that the right to appoint a personal representative is not one of the fundamental rights implicating utilization of the strict scrutiny test.

Relying on Shapiro v. Thompson; Dunn v. Blumstein; and Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), Pincus argues that sections 733.302 and 733.304 infringe upon the testator’s fundamental right to travel and, therefore, the strict scrutiny test must be applied. The right to travel throughout the states has been recognized by the Supreme Court of the United States as a constitutionally protected right implicating application of the strict scrutiny test whenever this right is penalized or somehow impinged upon by a legislative classification.

In Shapiro v. Thompson, the Supreme Court, employing the strict scrutiny test, struck a one-year durational residency requirement because it imposed a classification on welfare applicants which impinged on their right to travel freely from state to state. The Court held that the waiting period denied welfare benefits to otherwise eligible applicants solely because they recently moved into the jurisdiction. Then, in Dunn v. Blumstein, although holding a Tennessee durational residency requirement unconstitutionally violative of the equal protection clause, the Supreme Court emphasized that its decision was not intended to cast doubt on the validity of appropriately defined and uniformly applied bona fide residency requirements.

Later in Memorial Hospital v. Maricopa County, the Supreme Court held unconstitutionally violative of the equal protection clause an Arizona statute governing medical care for indigents requiring an indigent to be a resident of the county for the preceding twelve months in order to be eligible for free, nonemergency medical care because it impinged on the right of interstate travel by denying newcomers the basic necessities of life. The Court, however, narrowly confining its earlier decisions in Dunn and Shapiro, explained that the right to travel entails more than merely movement and that although a durational residency requirement impinges on the right to travel to some extent, the Court, in Shapiro, did not declare this requirement to be per se unconstitutional because it in some manner affected the right to travel. The Court emphasized that its earlier holding in Shapiro was conditioned on the caveat that some residency requirements would not be penalties upon the exercise of the constitutional right of interstate travel and that Shapiro did not make clear the amount of impact required to give rise to the compelling state interest test. The Court held that the compelling state interest test is triggered by any classification which serves to penalize the exercise of the right to travel but further stated that the right of interstate travel must be seen as ensuring new residents the same right to vital governmental benefits in the state to which they migrate as are enjoyed by other residents of this state.

The Supreme Court, in McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976), upheld the validity of a municipal regulation requiring employees of the city to be residents of the city as a bona fide continuing residency requirement and held that this residency requirement did not infringe upon McCarthy’s right to travel interstate. The Court once again differentiated between a requirement of continuing residency and a requirement of prior residency of a given duration and explained that Shapiro and Dunn did not question the validity of an appropriately defined and uniformly applied residency requirement. The Court found no support for McCarthy’s claim that he had a constitutional right to be employed by the City of Philadelphia while he was living elsewhere.

In the recent decision of Califano v. Torres, 435 U.S. 1, 98 S.Ct. 906, 55 L.Ed.2d 65 (1978), the Supreme Court, after briefly summarizing the principles espoused in Shapiro, Dunn, and Memorial Hospital, held that the right to interstate travel does not require that a person who travels from one state to another be given benefits superior to those enjoyed by residents of other states to which he travels merely because he enjoyed those rights in the state from which he came.

Pincus transposes the proposition emanating from the fundamental right to travel in suggesting that a testator traveling to Florida must be given superior benefits to those enjoyed by Florida residents since the testator enjoyed those benefits in the state from which he came. The Supreme Court, in Califano, renounced this suggestion and announced that the broader implications of this transposition in other areas of substantive law would destroy the independent power of each state under the constitution to enact laws uniformly applicable to all of its residents. We find that sections 733.302 and 733.304 do not penalize the exercise of the testator’s right to travel in the sense contemplated by the Supreme Court in those decisions where it has applied the strict scrutiny test.

Pincus’s contention that these statutes impinge on his fundamental right to pursue a livelihood, thereby requiring application of the strict scrutiny test, is also without merit. He characterizes the privilege of serving as a personal representative as the pursuit of a livelihood because, he asserts, it is not unusual for a portion of an estate attorney’s income to be derived from the commissions he receives as administrator of his clients’ estates. We do not find the incidental aspect of an estate attorney serving as a personal representative equivalent to what has been defined as the fundamental right to pursue a livelihood. There is no fundamental right to serve as a personal representative of an estate just as there is no fundamental right explicitly or implicitly guaranteed by the constitution to designate a personal representative. Cf. McCarthy v. Philadelphia Civil Service Commission; Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976).

Pincus’s asserted infringement of his right to pursue a livelihood bears no resemblance to the infringement of this fundamental right found to exist in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978), wherein the Supreme Court struck an Alaska hire law requiring that all Alaska oil and gas leases, easements, or right-of-way permits for oil and gas pipelines purposes, unitization agreements, or any renegotiation of any of these to which the state is a party contain a provision requiring the employment of qualified Alaska residents in preference to nonresidents and imposing a one-year dura-tional residence requirement.

Concluding that a Montana elk hunting statute did not deprive anyone of a means of livelihood, the Supreme Court, in Baldwin v. Montana Fish and Game Commission, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978), reiterated that some distinctions between residents and nonresidents merely reflect the fact that this is a nation composed of individual states and are permitted. Only those distinctions which hinder the formation, purpose, or development of a single union are prohibited.

The incidental commissions of a personal representative are not “sufficiently basic to the livelihood of the Nation that the States may not interfere with a nonresident’s participation therein without similarly interfering with a resident’s participation.” Baldwin v. Montana Fish and Game Commission, 436 U.S. at 388, 98 S.Ct. at 1862-1863. Indisputably, Pincus has no absolute right to pursue his chosen livelihood as an estate attorney in Florida. See Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975); In re Griffiths, 413 U.S. 717, 98 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Silverman v. Browning, 414 F.Supp. 80 (D.C.Conn.1976), aff’d, 429 U.S. 876, 97 S.Ct. 228, 50 L.Ed.2d 162 (1976). See also Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979).

Since neither a suspect class nor a fundamental right is affected by the legislation in question, the rational basis or minimum scrutiny test applies in evaluating the equal protection challenge. Utilizing this test, we hold that the distinctions drawn by sections 733.302 and 733.304 bear a reasonable relationship to a legitimate state objective and therefore do not violate the equal protection clause. The state, in enacting these provisions, recognized that the administration of a decedent’s estate is an intensely localized matter requiring the personal representative to be thoroughly informed on local matters and to be available to the court, beneficiaries, and creditors of the estate. The state declares that these statutes serve the valid function of ensuring that the personal representative, if not a relative of the testator, is close enough in proximity to the Florida estate to protect the rights of the creditors, ensure that the estate will be probated without needless delays caused by travel, and reduce the cost of representation to the estate by reducing travel costs or preventing the need to associate an in-state representative. In In re the Estate of Fernandez, 335 So.2d 829 (Fla.1976), we expressly recognized that the residency requirement, along with the statutory provision that a person incompetent to discharge the duties of a personal representative is not qualified to serve, guarantees the basic ability to perform the duties of a personal representative.

Pincus further maintains that the exemption in section 733.304 for nonresident relatives of a decedent demonstrates that the statute is irrational. We disagree. Where utilizing the rationality test, the equal protection clause is not violated merely because a classification made by the laws is not perfect. Equal protection does not require a state to choose between attacking every aspect of the problem or not attacking it at all, and a statutory discrimination will not be set aside if any statement of facts reasonably may be conceived to justify it. Dandridge v. Williams. To be constitutional, a statutory classification need not be all-inclusive. Newman v. Carson, 280 So.2d 426 (Fla.1973). Furthermore, we find that it is not unreasonable for an exception to be created for nonresident relatives because, more than likely, the nonresident relative will also be a beneficiary of the decedent’s estate.

Finding no violation of the equal protection clause, we proceed to Pincus’s contention that sections 733.302 and 733.304 violate the due process clause of the fourteenth amendment because they create an irrebuttable presumption that otherwise competent persons are not qualified to serve as personal representatives because of their nonresidency. Relying upon Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); and Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), he argues that his presumed inability to serve is predicated on his status as a nonresident and that the irre-buttable presumption arises when he is not permitted to rebut the assumed conclusion.

Stanley v. Illinois dealt with a due process challenge to an Illinois law under which children of unwed fathers become wards of the state upon the death of the mother. This law created a presumption that a father was unfit because he was not married to his child’s mother. Upon the death of the mother of Stanley’s children with whom he had lived intermittently for eighteen years, the children were declared wards of the state without a hearing having been held to determine Stanley’s fitness as a father. The Supreme Court addressed the issue of whether a presumption that distinguishes and burdens all unwed fathers is constitutionally repugnant and held that, as a matter of due process, Stanley was entitled to a hearing on his fitness as a parent before his children were taken from him. The Court made it clear that in considering whether a due process violation existed, the court must begin with a determination of the precise nature of the governmental function involved as well as the private interest affected by the legislation since due process of law does not require a hearing in every conceivable case of governmental impairment of a private interest. Alluding to its previous decisions of Griswold v. Connecticut, 381 U.S. 479; 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Skinner v. Oklahoma; and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), which have emphasized the importance of the family and what has been characterized as the essential rights to conceive and to raise one’s children, the Court found that Stanley’s interest in retaining custody of his children was substantial and warranted great deference.

Although acknowledging the state’s right to classify students as residents and nonresidents, the Supreme Court, in Vlandis v. Kline, struck as violative of the due process clause a Connecticut statute which permanently and irrebuttably classified as nonresidents for purposes of determining tuition and fees those married students whose legal address was outside the state at the time of their applications for admission and those unmarried students whose legal address was outside of Connecticut for any part of the one-year period preceding admission application. This statutory presumption effectually allowed the state to classify as “out-of-state students” those who were actually bona fide residents of the state. The Supreme Court held the statutory presumption invalid on the basis that the presumption of nonresidence is “not necessarily or universally true in fact” and because the state had “reasonable alternative means of making the crucial determination” of residence and held that due process required that the state allow an individual an opportunity to present evidence demonstrating that he is a bona fide resident entitled to in-state rates.

A mandatory maternity leave rule for schoolteachers was stricken by the Supreme Court in Cleveland Board of Education v. LaFleur as violative of the due process clause because it established a conclusive presumption of the physical incapacity of the teacher after the fourth or fifth month of pregnancy, which presumption was neither necessarily nor universally true. The Supreme Court, in applying this strict test and in finding the presumption unconstitutional, placed much emphasis on the fact that the maternity leave regulation affected one of the basic civil rights of man and penalized the recognized fundamental constitutional freedom of personal choice in matters of marriage and family life.

The irrebuttable presumption rationale employed by the Supreme Court in Stanley, Vlandis, and Cleveland Board of Education, which has been characterized by several of the justices as the equal protection clause masquerading as the due process clause, has been considerably narrowed by the Supreme Court in subsequent decisions.

In Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), an Iowa statutory requirement that a petitioner in a divorce action be a resident of the state for one year preceding the filing of the petition was asserted to violate the due process clause on the alleged ground that it denied the litigant the opportunity to make an individualized showing of bona fide residence. Mr. Justice Rehnquist, who had dissented in Vlandis v. Kline, authored the majority opinion holding that the residency requirement did not violate the due process clause and reasoned:

An individualized determination of physical presence plus the intent to remain, which appellant apparently seeks, would not entitle her to a divorce even if she could have made such a showing. For Iowa requires not merely “domicile” in that sense, but residence in the State for a year in order for its courts to exercise their divorce jurisdiction.

419 U.S. at 409-10, 95 S.Ct. at 562. The Court noted that the states have virtually an exclusive province over the regulation of domestic relations.

Then, in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), in evaluating a due process violation claim addressed to a federal statute which precluded widows and their children from receiving social security survivors’ benefits unless the claimant’s relationship to the wage earner existed for at least nine months before his death, the Supreme Court again substantially restricted the application of the stricter irrebuttable presumption rationale earlier announced. The Court distinguished Stanley v. Illinois, Vlandis v. Kline, and Cleveland Board of Education v. LaFleur, and, applying a rational relationship test to determine the validity of this conclusive legislative presumption, the Court upheld its validity and explained:

[T]he question raised is not whether a statutory provision precisely filters out those, and only those, who are in the factual position which generated the congressional concern reflected in the statute. Such a rule would ban all prophylactic provisions, and would be directly contrary to our holding in Mourning, supra [Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973)]. Nor is the question whether the provision filters out a substantial part of the class which caused congressional concern, or whether it filters out more members of the class than nonmembers. The question is whether Congress, its concern having been reasonably aroused by the possibility of an abuse which it legitimately desired to avoid, could rationally have concluded both that a particular limitation or qualification would protect against its occurrence, and that the expense and other difficulties of individual determinations justified the inherent imprecision of a prophylactic rule. We conclude that the duration-of-relationship test meets this constitutional standard.

422 U.S. at 777, 95 S.Ct. at 2472-2473 (emphasis added).

Subsequently, in Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), the Supreme Court clarified its holding in Weinberger insofar as concerned the limitations it imposed on the irrebuttable presumption doctrine, applied the rational relationship test, and upheld against a due process challenge the constitutionality of a federal law employing two irrebuttable presumptions: (1) a coal miner afflicted with complicated pneumoconiosis is conclusively presumed to be totally disabled due to pneumoconiosis and (2) if the miner has died, it is irrebuttably presumed that he was totally disabled by pneumoconi-osis at the time of his death and that his death was caused by pneumoconiosis. The Court explained:

But in a statute such as this, regulating purely economic matters, we do not think that Congress’ choice of statutory language can invalidate the enactment when its operation and effect are clearly permissible. Cf. Weinberger v. Salfi, 422 U.S. 749, 767-785 [95 S.Ct. 2457, 2467-2477, 45 L.Ed.2d 522] (1975); McDonald v. Board of Election, 394 U.S. 802, 809 [89 S.Ct. 1404, 1408-1409, 22 L.Ed.2d 739] (1969); United States v. Carolene Products Co., 304 U.S. 144, 154 [58 S.Ct. 778, 784-785, 82 L.Ed. 1234] (1938).
We have consistently tested presumptions arising in civil statutes such as this, involving matters of economic regulation, against the standard articulated in Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 43 [31 S.Ct. 136, 138, 55 L.Ed. 78] (1910).
“That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.” [Cases omitted.]
Moreover, as we have recognized:
“The process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.” United States v. Gainey, 380 U.S. 63, 67 [85 S.Ct. 754, 757,13 L.Ed.2d 658] (1965).

428 U.S. at 23-24, 28, 96 S.Ct. at 2898.

The stricter test enunciated in Stanley v. Illinois and its progeny has been effectively restricted to cases involving fundamental constitutional rights much the same as the compelling interest test in the analysis of equal protection claims. Here, no fundamental rights are impinged, and therefore measured against the reasonableness test enunciated in Weinberger v. Salfi, we conclude that sections 733.302 and 733.304 are constitutional. As we have previously explained, these statutes represent a rational means of accomplishing a legitimate state goal.

Furthermore, we hold that sections 738.302 and 733.304 do not violate article IV, section 2, Constitution of the United States, which provides: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Pincus misapprehends the distinctions between the treatment of residents and nonresidents against which the privileges and immunities clause protects. The Supreme Court, in Baldwin v. Montana Fish and Game Commission, defining the limits of the privileges and immunities protection, explained that some distinctions between residents and nonresidents are permitted and that only those distinctions which hinder the formation, purpose, or development of a single union of the states is prohibited. Performing the task of a personal representative does not rise to the level of a privilege or immunity bearing upon the vitality of the nation as a single entity. As has already been noted, the Supreme Court of the United States has acknowledged the state’s province in regulating the manner of testamentary dispositions. Pincus has no fundamental right to serve as a personal representative in Florida.

Accordingly, having concluded that sections 733.302 and 733.304 are constitutional, we affirm the trial court’s order denying Pincus’s petition for appointment as a co-personal representative of the estate of Leo Greenberg.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

ENGLAND, J., dissents with an opinion, with which SUNDBERG, C. J., and ADKINS, J., concur.

ENGLAND, Justice,

dissenting.

By enacting sections 733.302 and 733.304, Florida Statutes (1977), the Florida Legislature has chosen to forbid certain nonresidents from acting as personal representatives for Florida estates. Leo Greenberg died a resident of Florida leaving a will in which he first named his son and his accountant as co-personal representatives, and then named Meyer Pincus as successor personal representative to his accountant. Pincus was not related to Greenberg by blood or marriage, but he had been Green-berg’s attorney and tax advisor before Greenberg moved to Florida. When Green-berg’s accountant renounced his right to serve as co-personal representative, Meyer indicated his willingness to serve. He was refused permission, however, by reason of the statutory residency requirements of Florida probate law.

The crucial inquiry in determining whether Pincus may serve as Greenberg’s personal representative is not whether he is a resident of Florida, for the statute does not require residency for everyone. Rather, the key question is whether the state can justify on any rational basis denying letters testamentary to Pincus because he happens not to be one of those excepted from the residency requirement; that is, Greenberg’s spouse, brothers, sisters, uncles, aunts, nieces, nephews, adopted children, adoptive parents, any relative by lineal consanguinity, or a spouse of any of these persons.

I agree with the majority that the “mere rationality” standard of review is appropriate here, but I firmly believe that the state’s classification for qualified nonresident personal representatives is arbitrary and irrational to the point of denying equal protection of the laws.

The state essentially asserts three interests which might justify the statute. Two are so unpersuasive as to require little discussion.

First, the state asserts that the statute eliminates the needless delay in the administration of estates which may be caused by travel. This concern, however, is hardly sound, as it applies no less or more forcefully to the multiplicity of other nonresidents authorized by the statute to serve as personal representatives.

Second, the state contends that the cost of administrating an estate is reduced by eliminating expenses of travel and the association of an in-state representative. The state’s interest in reducing the cost of estate representation is commendable, but not defendable. A person who wishes to spend money for the travel of a close personal advisor cannot, in my view, be forbidden to do so without offending basic notions of where government’s role begins and ends. The choice to expend the funds amassed in one’s lifetime to insure that a close friend will supervise distribution of one’s estate surely must come within the ambit of the right to be free from governmental paternalism. The state has no more legitimate interest in preventing a testator’s election to spend administrative costs for his estate than it has in selecting his beneficiaries.

The state’s third contention in support of these statutes is presumptively plausible. The state suggests that residency insures that a personal representative will be in close proximity to the interests of the Florida estate to protect interested parties’ rights, and I believe that goal is a possible justification for the disparate treatment of nonresidents. In fact, however, the statute as drawn is not rationally related to achieving that interest. A review of this statute’s history makes this evident.

In 1906 the legislature provided that: Non-residents, if residing in the United States, may be appointed administrator or have letters testamentary upon the same terms and conditions and subject to the same rules and restrictions as residents of this state.

For over thirty years that provision remained substantially unchanged until it was amended in 1939 to forbid nonresidents from serving unless they were an heir, devi-see, or legatee as specified therein, a spouse, father, mother, child, brother or sister of the decedent, or a personal representative appointed prior to the effective date of that amendment.

In 1945 the legislature again amended that statute (codified as section 732.47(1), Florida Statutes (1945 Supp.)), to read:

A person who is not an actual bona fide resident of the State of Florida cannot qualify as a personal representative of an estate in Florida, unless such person is related by blood to the decedent within the third degree or is a spouse of the decedent. However, any person who has qualified in Florida as a personal representative prior to the effective date of this law may continue to serve in such capacity.

In 1947 the legislature first enacted a provision similar to the one challenged here, which provided:

A person who is not an actual bona fide resident of the State of Florida cannot qualify as a personal representative of an estate in Florida, unless such person is a legally adopted child of the decedent and [sic ] adoptive parent or is related by lineal consanguinity to the decedent or is a spouse or a brother, sister, uncle, aunt, nephew or niece of the decedent.

That provision was changed as to form in 1974 to what is now section 733.304. One year later the legislature amended the statute to change the residence requirement to a domicile requirement, and to add to the list of eligible nonresidents the spouses of all persons exempt from the residency requirement. Finally, although it occurred after this case was filed below, the legislature continued its amendatory ways by revising the statute to expand the list of eligible nonresidents again, this time to include persons related by lineal consanguinity to spouses, brothers, sisters, uncles, aunts, nephews, and nieces of the decedent.

This historical treatment of nonresident eligibility is revealing. It can be seen that the legislature first imposed no restrictions on a nonresident’s service. In 1939 the first restrictions were added, aimed at preventing the service of virtually all nonresidents except certain heirs, devisees, legatees and close relatives of the decedent. In 1945 that provision was amended to exclude heirs from eligibility, expressing the legislature’s desire to limit nonresidents’ service only to those related by blood to the decedent within the third degree, or to spouses. This, presumably, fostered a proximity interest such as is now asserted by the state to support the statute.

Were the 1945 statute before us, I would find no fault with it. A statute such as that would treat all similarly situated persons alike, and a valid state interest in proximity would thereby be vindicated. I agree with my colleagues that the fourteenth amendment “permits the states a wide scope of discretion in enacting laws which affect some groups of citizens differently than others,” and I agree with them that a statutory classification need not be all-inclusive to be constitutional.

But the state’s proximity interest has long since ceased to be protected. Successive amendments to the statute since 1945 have taken all rationality out of the law and evinced a protectionist philosophy which does not, in my view, comport with the fourteenth amendment to the United States Constitution. Each amendment since 1945 has made a slightly larger, and thereby less rational, exception to the proximity goal. The 1947 amendment allowed a limited number of less proximate nonresident relatives to serve. The 1974 amendment permitted adoptive parents and children to serve. The “clincher” came in 1975 when the legislature added to the list of eligible nonresidents the spouses of any of the enumerated relatives. (The 1979 amendment, though not technically relevant here, has continued this blunderbuss trend by allowing nonresident lineal blood relatives of any of the enumerated nondom-iciled relatives to serve as personal representatives.)

Clearly, as the statute stood when Pincus applied for letters testamentary, its original purpose of limiting service to residents and close relatives-presumably to vindicate the state’s proximity interest-has long since disappeared. In fact, it is fair to say that the “exception” for some nonresidents has swallowed the rule forbidding nonresidents to serve. The kinship tie has become so attenuated that there no longer exists a protectable proximity interest. A close personal advisor, such as Pincus was to Green-berg, is a far more rational choice by the decedent than the choice of remote strangers which the statute would allow.

I would hold the statutory classification now before us to bear no rational relation to any legitimate state interest. The Florida legislature must make up its collective mind either to exclude nonresidents or to permit them to serve; it cannot have matters both ways. I would strike the residency statute and allow Meyer Pincus to serve as co-personal representative for his former client.

SUNDBERG, C. J., and ADKINS, J., concur.

      . Section 733.302 provides:
      Subject to the limitations in this part, any person sui juris who is a citizen of the United States and a resident of Florida at the time of the death of the person whose estate he seeks to administer is qualified to act as personal representative in Florida. A person who has been convicted of a felony or who, from sickness, intemperance, or want of understanding, is incompetent to discharge the duties of a personal representative is not qualified.
      In In re the Estate of Fernandez, 335 So.2d 829 (Fla.1976), we held that the United States citizenship requirement contained in section 733.302, Florida Statutes (1975), was invalid because such requirement violated the equal protection clauses of the fourteenth amendment to the United States Constitution and article I, section 2 of the Florida Constitution. Therein, we recognized that the statutory requirement that a person appointed as an administrator be a resident of Florida guaranteed the basic ability of one to perform the duties of a personal representative, but we held that the additional requirement of United States citizenship had no bearing on ability. In 1979, the legislature amended section 733.302 to eliminate the requirement of United States citizenship. Chapter 79-343, Laws of Florida (1979). The amendment deleted only the language, “is a citizen of the United States and,” but left the remainder of the statute unchanged.

      . Section 733.304 provides:
      A person who is not domiciled in the state cannot qualify as personal representative unless the person is:
      (1) A legally adopted child or adoptive parent of the decedent;
      (2) Related by lineal consanguinity to the decedent;
      (3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent; or
      (4) The spouse of a person otherwise qualified under this section.

      . Cleveland Board of Education v. LaFleur, 414 U.S. at 651, 94 S.Ct. at 801-802 (Mr. Justice Powell, concurring in result), 414 U.S. at 657, 94 S.Ct. at 804-805 (Mr. Justice Rehnquist, dissenting); Vlandis v. Kline, 412 U.S. at 459, 93 S.Ct. at 2240 (Mr. Chief Justice Burger, dissenting).

      . This concern is essentially an argument for administrative convenience which, as indicated by the United States Supreme Court, under certain circumstances, may not be a legitimate basis for discrimination. See Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 1333, 22 L.Ed.2d 600 (1969) (Justice Brennan stating in dicta that “even under traditional equal protection tests,” the asserted state interest of administrative convenience “would seem •irrational and unconstitutional”).

      . § 2337, Gen.Stat. of Fla. (1906).

      . Ch. 19671, Laws of Fla. (1939), unofficially codified as § 5541(26), Comp.Gen.Laws of Fla. (1940).

      . Ch. 22847, Laws of Fla. (1945).

      . Ch. 22819, Laws of Fla. (1947).

      . § 732.47(1), Fla.Stat. (1947).

      . Ch. 74-106, § 1, Laws of Fla.

      . Ch. 75-220, § 63, Laws of Fla.

      . Ch. 79-343, § 6, Laws of Fla.

      . Mones v. Austin, 318 F.Supp. 653, 655 (S.D.Fla.1970) (3 judge court). Accord, Finlayson v. Conner, 167 So.2d 569 (Fla.1964).

      . See, e.g., Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949).

      . The case for co-personal representatives such as Pincus is even more compelling, as all the state’s interests are fully protected by the co-representation of decedent’s son.


author: ADKINS, Justice.

text:
    STATE of Florida, Appellant, v. Elizabeth Victoria LICK et al., Appellees.
    No. 56293.
    Supreme Court of Florida.
    Nov. 6, 1980.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellant.
    John W. Van Doren, Tallahassee and Ronald Baker, Crawfordville, for appellees.
   ADKINS, Justice.

This is an appeal from an order of the Leon County Court which held the statutory prohibition against prostitution unconstitutional insofar as it applied only to women. See § 796.07(l)(a), Fla.Stat. (1977). We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. (1972). We refer to the parties as they appeared in the trial court; appellant as state and appellees as defendants.

The defendants, both of whom are women, were charged with unlawfully offering to commit or to engage in prostitution, lewdness or assignation in violation of section 796.07(3)(a), Florida Statutes (1977). In an order quashing certain subpoenas duc-es tecum, the trial court interpreted the term prostitution as applying only to women. The defendants filed a memorandum in support of their previous motion to dismiss claiming the statute as interpreted was facially unconstitutional because there was no rational basis for distinguishing between males and females. The trial court agreed and held the statute unconstitutional for that reason. This finding was reiterated in the order denying rehearing:

The Court simply finds that the Statute ... [in question] insofar as it relates only to prostitution, relates only to females and as such cannot be enforced against women only without some compelling State interest or rational basis for such classification.

The trial court and defendants recite several definitions of prostitution which limit the crime to acts by females. E. g., Black’s Law Dictionary 1386 (rev. 4th Ed. 1968); 25 Fla.Jur. Prostitution § 2 (1979 Supp.); 63 Am.Jur.2d Prostitution § 1 (1978 Supp.); 73 C.J.S. Prostitution § 1 at n. 15.5 (1978 Supp.).

The state argues these definitions are irrelevant in light of the non-gender based statutory definition which refers to “the giving or receiving of the body for sexual intercourse for hire, ...” § 796.07(1)(a), Fla.Stat. (1977) (emphasis supplied). Furthermore, the section making prostitution a crime says “any person ” who violates the statute is guilty of a misdemeanor. § 796.-07(5), Fla.Stat. (1977) (emphasis supplied).

Legislative enactments are presumed to be constitutional, Cilento v. State, 377 So.2d 663 (Fla.1979). This Court’s obligation is to resolve all doubts as to the validity of a statute in favor of its constitutionality. State v. Cormier, 375 So.2d 852 (Fla.1979). Thus, even where the statute is reasonably susceptible of two in-térpretations, one of which would render it invalid and the other valid, we must adopt the constitutional construction. See Florida State Board of Architecture v. Wasserman, 377 So.2d 653 (Fla.1979). These maxims make it clear that even if there exists an interpretation limiting the crime of prostitution to women, we should abide by the alternative construction which makes no sex-based distinction. Our decision comports with others which have upheld convictions of men under this statute. See, e. g., Whitted v. State, 362 So.2d 668 (Fla.1978); Gort v. State, 345 So.2d 726 (Fla.1977); State v. Bales, 343 So.2d 9 (Fla.1977), and Bell v. State, 289 So.2d 388 (Fla.1973).

The order of the trial court is reversed and the case remanded for proceedings consistent with this opinion.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


author: SUNDBERG, Chief Justice. BOYD, Justice,

text:
    William KENDRICK, Appellant, v. Annie EVERHEART a/k/a Annie Kendrick, Dennis Everheart, and Jim Smith, Attorney General, State of Florida, Appellees.
    No. 56759.
    Supreme Court of Florida.
    Nov. 6, 1980.

      Adrienne Maidenbaum of the Legal Aid Service of Broward County, Inc., Hollywood, for appellant.
    Jim Smith, Atty. Gen., and Brian E. Norton, Asst. Atty. Gen., Tallahassee, for appel-lee.
   SUNDBERG, Chief Justice.

The general issue presented in this appeal is whether a putative father may bring an action to adjudicate his paternity either under Florida’s determination of paternity statute, chapter 742, Florida Statutes (1977), or under Florida’s declaratory judgment statute, chapter 86, Florida Statutes (1977). The trial court held that a putative father may not bring an action for adjudication of paternity under either chapter and dismissed the case on the pleadings. Because the trial court ruled on the constitutionality of section 742.011, Florida Statutes, we have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

Appellant William Kendrick filed this suit alleging that he is the father of five minor children born out of wedlock. Appellant apparently has custody of the children and has provided for their support. He seeks (a) an adjudication of paternity and amendment of the children’s birth certificates and their names to reflect that he is the natural father, (b) alternative declaratory relief under chapter 86, Florida Statutes, declaring section 742.011, Florida Statutes, unconstitutional as a violation of equal protection under the United States and Florida Constitutions and a denial of access to the courts under the Florida Constitution, and (c) a court order of child custody and child support from the natural mother. The children’s mother, Annie Ev-erheart, and her husband, Dennis Everh-eart, were named as defendants. Although it is not clear from the record whether Annie and Dennis Everheart are still married, it appears that they were married at the time of the birth of at least two of these children, both of whose birth certificates name Dennis Everheart as their father. Two of the children’s birth certificates do not list a father and the paternity listing on the birth certificate of the fifth child is not alleged or otherwise reflected in the record. Both Annie and Dennis Everh-eart admit that appellant is the natural father of the children listed in appellant’s complaint. Since appellant challenged the constitutionality of section 742.011, Florida Statutes, the state, acting through the Attorney General, intervened in the case pursuant to section 86.091, Florida Statutes, to defend the constitutionality of the challenged statute.

Upon the state’s motion, the trial court dismissed appellant’s action on the pleadings. The trial court held that Kendrick did not state a legal cause of action under section 742.011, reasoning that the purpose of the paternity statute is to provide a natural mother with a judicial mechanism for obtaining child support from the natural father rather than to provide a putative father with a means to prove his own paternity. The trial court also held that a putative father may not bring an action for a declaratory judgment adjudicating his paternity under chapter 86, citing Ford v. Loeffler, 363 So.2d 23 (Fla. 3d DCA 1978). The court further determined that section 742.011 is constitutional and does not deny a man equal protection of the laws nor access to the courts. The case was, therefore, dismissed without prejudice to Kendrick’s right to bring another action for the relief sought under any other more appropriate statutory remedy. From the trial court’s judgment dismissing the suit, Kendrick brings this appeal.

Section 742.011 of Florida’s paternity act, chapter 742, provides that:

Any unmarried woman who shall be pregnant or delivered of a child may bring proceedings in the Circuit Court, in chancery, to determine the paternity of such child.

Appellant argues initially that section 742.-011, as construed in Gammon v. Cobb, 335 So.2d 261 (Fla.1976), establishes a statutory classification which distinguishes between males and females by permitting a woman but not a man to bring an action to determine paternity of a child, thus being subject to scrutiny under the equal protection clause. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). He points out that to withstand scrutiny under the equal protection clause, classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). The purpose of Florida’s paternity statute, appellant continues, is to protect the interests of a child illegitimately conceived and to impose an obligation on the natural father to provide support. Gammon v. Cobb, supra. Appellant asserts that he is furthering the child’s interests in bringing this suit for adjudication of paternity. Therefore, he argues that the classification in section 742.011 is irrational because it denies to a man, who has supported and established a familial relationship with his children, the right to be legally declared the father.

First of all, we recognize that disparate treatment of men and women who are similarly situated violates equal protection of the laws. Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979); Orr v. Orr; Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); In re Estate of Reed, 354 So.2d 864 (Fla.1978); Wilcox v. Jones, 346 So.2d 1037 (Fla. 4th DCA 1977), cert. denied, 357 So.2d 188 (Fla.1978). Thus in this suit we must determine whether men and women are in fact similarly situated with respect to the issues presented so that any gender-based distinction is substantially related to achievement of an important state interest. We shall first address appellant’s argument that Florida’s paternity act is unconstitutional and then address the issue of whether a putative father may obtain an adjudication of paternity under the declaratory judgment act.

We agree with the trial court that the purpose of the paternity statute, chapter 742, is to afford a basis on which a court may order child support from a man adjudicated to be the father of the illegitimate child. T. J. K. v. N. B., 237 So.2d 592 (Fla. 4th DCA 1970). The paternity statute was enacted in abrogation of the common law in order to convert the father’s moral obligation to provide child support to a legal obligation and in order to relieve the public of the need to provide support for the child. Gammon v. Cobb; Mocher v. Rasmussen-Taxdal, 180 So.2d 488 (Fla. 2d DCA 1965); DeMoya v. dePena, 148 So.2d 735 (Fla. 3d DCA 1963). The determination of paternity is made only incidentally to enable achievement of the statute’s purposes. A father may achieve these statutory purposes by acknowledging the child as his own and by voluntarily providing financial support. He can achieve this, unlike the mother, without the need to resort to litigation. For this reason it cannot be said that the legislature in enacting chapter 742 imposed disparate treatment on men and women who are similarly situated. When men and women are not in fact similarly situated in the area covered by the legislation in question, the equal protection clause is not violated. See Parham v. Hughes and Schlesinger v. Ballard, supra. That the paternity statute does not unfairly operate against unwed fathers is further demonstrated by the fact that the statute authorizes the court in a proper case to award child custody to the father and contemplates the imposition of child support obligations on either or both parents depending on their ability and other relevant circumstances. See Brown v. Bray, 300 So.2d 668 (Fla.1974). Thus, in protecting the welfare of minor children, chapter 742 serves an important state interest. And by providing a mother with the legal means by which she may enforce her child’s support rights against the natural father, chapter 742 does not serve to deprive that father of any of his rights.

We turn next to the issue of whether appellant may bring an action for declaratory judgment to determine his paternity. The trial court below, in holding that a putative father may not bring a declaratory action, relied on Ford v. Loeffler, supra. See also Perez v. Stevens, 362 So.2d 998 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1372 (Fla.), cert. denied, 444 U.S. 837 (1979). In Ford v. Loeffler plaintiff alleged that he was the father of defendant’s child and sought visitation rights. In affirming the dismissal of plaintiff’s complaint, the district court stated that no precedent exists which gives a putative father the right to institute a cause of action to establish that he is the father of a child the mother denies is his. The court, noting in particular section 742.10, held that chapter 742 provides the jurisdictional basis for a court to determine paternity and pointed out that under the statute the mother alone is given the right to institute paternity proceedings. See Clarke v. Blackburn, 151 So.2d 325 (Fla. 2d DCA 1963). Since the plaintiff could not establish paternity, the court declined to consider his child visitation rights. Apparently, the trial court in this case likewise declined to pass on appellant’s other claims for relief because of his failure to first establish paternity.

Appellant contends that the decision in Ford v. Loeffler fails to recognize the legitimate rights of a putative father and unconstitutionally denies him a judicial forum in which to assert those rights. In support of his argument, appellant quotes the following statement from Stanley v. Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551 (1972): “Private interests of a man in the children he sired and raised undeniably warrants deference and absent a powerful countervailing interest, protection.” Appellant contends that a putative father must be provided some legal forum within which to assert the rights articulated in Stanley and points out that other jurisdictions have specifically found a declaratory judgment to be an appropriate remedy. See Willmott v. Decker, 56 Hawaii 462, 541 P.2d 13 (1975); A. B. v. C. D., 150 Ind.App. 535, 277 N.E.2d 599 (1971); Johannesen v. Pfeiffer, 387 A.2d 1113 (Me.1978); Dawson v. Eversberg, 257 Md. 308, 262 A.2d 729 (1970); Crane v. Battle, 62 Misc. 2d 137, 307 N.Y.S.2d 355 (Fam.Ct.1970); Slawek v. Stroh, 62 Wisc.2d 295, 215 N.W.2d 9 (1974).

Whether a putative father may bring a declaratory judgment depends primarily upon the significance of the following language from section 742.10, Florida Statutes (1977):

This chapter shall be in lieu of any other proceedings provided by law for the determination of paternity and support of children born out of wedlock.

It is clear from the language of this section that chapter 742 was intended as the natural mother’s exclusive legal remedy in establishing paternity and enforcing support rights on behalf of her child. We do not, however, read section 742.10 to preclude a putative father from bringing a declaratory judgment action to adjudicate paternity where such adjudication is necessary to the determination of existing rights or duties between parties to an actual controversy or dispute.

In reaching this conclusion we must briefly review pertinent case law. In Gammon v. Cobb, supra, we noted that a natural mother bringing suit under chapter 742 does so in a representative capacity on behalf of her illegitimate child. Hence in bringing suit she acts merely as a trustee or conduit to receive child support funds from the natural father for the purpose of converting them into relief for the child. She cannot contract away the illegitimate child’s right to support. Shinall v. Pergeorelis, 325 So.2d 431 (Fla. 1st DCA 1975); Walker v. Walker, 266 So.2d 385 (Fla. 1st DCA 1972). Nor can a statute of limitations provision constitutionally distinguish between the support rights of legitimate and illegitimate children by foreclosing the illegitimate child’s future support rights from the natural father because of the failure of the mother to file a paternity suit. Department of Health & Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979). If chapter 742 provided the exclusive means by which to establish paternity, the mother could in effect negate the illegitimate child’s support rights against the natural father who does not voluntarily choose to contribute to the support of his child. We do not believe that such an incongruous result can be reconciled with the principles just stated. It would be ironic indeed if the very statute which was enacted by the legislature to advance the welfare of the illegitimate child were also used as a two-edged sword to compromise his welfare.

We do not arrive at our construction of chapter 742 based on case law alone. Other legislative enactments which reflect upon the legislative intent underlying chapter 742 support our conclusion. As noted in Department of Health & Rehabilitative Services v. West, the legislature has recently declared it to be the public policy of this state that children be maintained from the resources of “responsible parents.” See § 409.2551, Fla.Stat. (1977). This express statement of legislative intent militates against any finding that chapter 742, in providing the judicial means by which a mother may enforce her child’s support rights against the natural father, was also intended by the legislature to limit any legal remedies otherwise available to other persons asserting support rights on behalf of the child. Moreover, if chapter 742 provided the exclusive means for determining paternity, a putative father-even one who openly acknowledged his paternity-would be able to avoid with impunity the criminal provisions of section 856.04(2), Florida Statutes (1977) (withholding child support), by virtue of the mother’s failure, for whatever reason, to obtain an adjudication of paternity. We do not believe that the legislature intended such a result and, therefore, we construe the “in lieu of” language of section 742.10 to be limited in application to suits brought by a mother to enforce her child’s support rights against the natural father.

Having established that nothing in the language or intent of the paternity act prevents a putative father from obtaining an adjudication of paternity, we turn next to the question of whether this adjudication may be obtained under the declaratory judgment act. The jurisdictional section of the declaratory judgment act provides the following:

86.011 Jurisdiction of circuit court.-The circuit courts have jurisdiction to declare rights, status and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment. The court may render declaratory judgments on the existence, or nonexistence:
(1) Of any immunity, power, privilege or right; or
(2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege or right does or may depend, whether such immunity, power, privilege or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent or supplemental relief in the same action.

In May v. Holley, 59 So.2d 636 (Fla.1952), this Court noted with respect to this provision that it would be difficult to find language which would express a broader scope of jurisdiction. We stated that unless we are to deny the power of the legislature to enact the statute we must give full force to its language, subject only to the constitutional limits upon the exercise of judicial power. Those constitutional limits were stated in the following passage:

Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.

Id. at 639. See also Williams v. Howard, 329 So.2d 277, 282 (Fla.1976). When the above-stated elements are shown to exist there is almost no limit to the number and types of cases that may be heard under this statute, May v. Holley, provided some useful purpose will be served by declaratory relief, Mountain v. National Airlines, Inc., 75 So.2d 574 (Fla.1959).

The fact there is no specific precedent on the same fact situation is not by itself reason to deny the invocation of declaratory judgment relief. For example, in Bell v. Associated Independents, Inc., 143 So.2d 904 (Fla. 2d DCA 1962), the court held that the declaratory judgment act was available to decide questions arising out of an arbitration clause despite the lack of a Florida precedent. As long ago as 1930 this Court stated that the factual situations giving rise to a proper action for declaratory relief were multiplying to such an extent as to render any list of them of little practical future use. See Sheldon v. Powell, 99 Fla. 782, 790, 128 So. 258, 262 (1930). Furthermore, the legislature itself has expressly stated its intent that the declaratory judgment act be liberally construed to settle and afford relief from insecurity and uncertainty with respect to rights, status and other equitable or legal relations. See § 86.101, Fla.Stat. (1977). Thus, the declaratory judgment act should be flexibly employed to permit relief where technical or social changes have placed in doubt one’s rights, immunities, status or privileges. Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808 (1946). We conclude that nothing within the language or intent of the declaratory judgment act precludes a declaration of paternity.

Our decision today permitting this unwed father to bring a declaratory judgment action for determination of paternity contains no novel propositions of law. This Court has already observed the fact that judicial determinations of paternity occur in contexts other than in a paternity proceeding brought under chapter 742. See the discussion in Gammon v. Cobb, 335 So.2d at 265-67. A paternity determination has been permitted in these other contexts where it was a necessary incident to the adjudication of the ultimate relief sought in the particular proceeding involved. Cf. Knauer v. Bar nett, 360 So.2d 399 (Fla.1978). Here appellant is seeking to establish his paternity incident to his claims for child custody, child support and amendment of certain of the children’s birth certificates. He should not be denied a forum within which to adjudicate these claims on a “Catch-22” rationale that he cannot first judicially establish paternity. Through a determination of paternity, appellant may establish a relationship other than that of stranger to the child. Such a determination is necessary if the trial court is to properly decide what is in the best interest of the child in awarding legal custody. A determination that appellant has legal custody of the children is in turn necessary for appellant to have standing to assert child support rights on their behalf against the natural mother. Finally, a judicial determination of paternity will presumably enable appellant to obtain an amendment of those birth certificates which allegedly list the wrong father.

With regard to a putative father’s general standing to assert an interest in or on behalf of his illegitimate children, we add one further comment. Because of dissimilarities in their circumstances, policy considerations and problems of proof, a putative father of an illegitimate child has historically not been accorded all the parental rights which are enjoyed by the natural mother and a married father. Conversely, the putative father has not always shared the same parental responsibilities which are imposed on the natural mother and the married father. As in the past, the law will in the future continue to develop to reflect the changing demands, needs and perceptions of a dynamic society. The fact remains, however, that the unwed father is not in all respects similarly situated with the unwed mother or the married father. This fact constitutionally permits the state to distinguish between them when the state does so on a basis realistically related to the differences in their situations. See Parham v. Hughes, supra. As a consequence of the differences in their situations, the unwed father is required to show that he has manifested a substantial concern for the welfare of his illegitimate child before he may be accorded standing to assert an interest with respect to that child. Compare Caban v. Mohammed, supra, and In Interest of Baby Boy S., 349 So.2d 774 (Fla. 2d DCA 1977), with Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), and Department of Health & Rehabilitative Services v. Herzog, 317 So.2d 865 (Fla. 2d DCA 1975). In this case appellant has apparently established a familial relationship with his illegitimate children by raising and supporting them. In doing so he has manifested a substantia] and continuing concern for the welfare of his children. As a result, we conclude that he has standing to bring this suit.

For the foregoing reasons we hold that a putative father who has shown a substantial interest in his illegitimate offspring may bring a declaratory judgment suit to adjudicate his paternity where that adjudication is necessary to the assertion of some present right or interest against the party sued. Accordingly, we affirm that portion of the trial court’s final order upholding the constitutionally of chapter 742, Florida Statutes (1977), and reverse the portion of the final order denying appellant the right to bring a declaratory judgment suit to determine his paternity insofar as it is incident to the claims asserted against the defendants. To the extent that Ford v. Loeffler, is inconsistent with this decision, it is disapproved. This case is remanded to the trial court for proceedings not inconsistent with this decision.

Affirmed in part and reversed in part.

It is so ordered.

ADKINS, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

BOYD, J., concurs in part and dissents in part with an opinion.

BOYD, Justice,

concurring in part and dissenting in part.

In concur in the result of the majority opinion insofar as it assures the appellant a judicial forum in which to establish that he is the father of the children in his care. I feel compelled, however, to express the dissenting view that section 742.011, Florida Statutes (1977), should be construed to allow a natural parent, whether a mother or a father, to bring an action to determine the paternity of children.

The purpose of proceedings for the determination of paternity, as the majority correctly acknowledges, is to impose a support obligation on the father of illegitimate children. To this end the mother, typically the person with custody of and responsibility for the child, is authorized by statute to bring the action. We must recognize that it will sometimes be the father, rather than the mother, who has custody and is caring for the child. The mother has a support obligation also. And there will be cases of absent mothers in which custodial fathers need the help of the courts to enforce that obligation for the benefit of the children. But how can a father establish his standing to bring such an action if he cannot establish that he is the father?

Where the father of children born out of wedlock is supporting and caring for them, his personal liberty interests in his relationship with them are protected by the constitution to the same extent as are those of a mother or married parents. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). I believe that even-handedness requires us to hold that chapter 742 can be invoked by either parent.

      . U.S.Const. Amend. XIV, § 1.

      . Art. I, § 2, Fla.Const.

      . Art. I, § 21, Fla.Const.

      . Annie Everheart did not file an answer to appellant’s complaint but by affidavit declared that appellant was the father of all five children. Dennis Everheart filed an answer generally denying appellant’s allegations but subsequently sent a letter to appellant’s attorney declaring that he was not the father of the two minor children whose birth certificates named him as their father.

      .Section 86.091, Florida Statutes (1977), provides in pertinent part:
      If the statute, charter, ordinance, or franchise is alleged to be unconstitutional, the Attorney General or the State Attorney of the judicial circuit in which the action is pending shall be served with a copy of the complaint and be entitled to be heard.

      . In Gammon v. Cobb, we held unconstitutional that portion of section 742.011 which limits paternity suits to women who are unmarried on the ground that it violated the equal protection clauses of the state and federal constitutions.

      . For an exhaustive discussion of jurisdiction under Florida’s declaratory judgment act see Dickson, Declaratory Judgments in Florida: Jurisdiction and Judicial Discretion, 27 U. of Miami L.Rev. 47 (1972).

      . The court has an affirmative responsibility to consider and protect the interests of the child who is before the court when entering an order in matters which will affect him. See In re Brock, 157 Fla. 291, 25 So.2d 659 (1946); Porter v. Porter, 60 Fla. 407, 53 So. 546 (1910); Spencer v. Spencer, 305 So.2d 256 (Fla. 3d DCA 1974); In the Interest of R. L. G., 274 So.2d 4 (Fla. 4th DCA 1973); Tom v. State, 153 So.2d 334 (Fla. 2d DCA 1963). Although section 744.301(1), Florida Statutes (1977), names the natural mother of an illegitimate child as its natural guardian, she may transfer her guardianship rights to another person provided it is in the child’s best interest. Marshall v. Reams, 32 Fla. 499, 14 So. 95 (1893). In considering what is in the best interest of the child, the love and devotion of a natural parent is an important factor. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Behn v. Timmons, 345 So.2d 388 (Fla. 1st DCA 1977). See also Bourn v. Hinsey, 134 Fla. 404, 416, 183 So. 614, 619 (1938) (Buford, J., concurring specially).

      . Cf. Brown v. Bray, 300 So.2d 668 (Fla. 1974); Engle v. Engle, 323 So.2d 658 (Fla. 3d DCA 1975); Brannan v. Brannan, 284 So.2d 701 (Fla. 1st DCA 1973). Defendant Annie Everheart has not contested appellant’s claim for contribution to child support and a default was entered against her. Accordingly, if on remand of this case to the trial court judgment is entered on the default, the court may, in its capacity as a court of equity and ultimate guardian of infants, see, e. g., Brown v. Ripley, 119 So.2d 712 (Fla. 1st DCA 1960), order such child support payments as are fair and equitable under the circumstances. The trial court may order additional investigation or take further evidence as it deems necessary. See Fla.R.Civ.P. 1.500(e).

      .We do not mean to imply that a judicial determination of paternity is necessarily a prerequisite to amendment of the birth certificates. The scanty record before us does not reveal whether appellant made any attempt based on his acknowledgement of paternity to seek an administrative remedy against the state registrar for vital statistics of the Department of Health and Rehabilitative Services, which office maintains birth certificate records. See ch. 382, Fla.Stat. (1977).


text:
    Patricia ANDREWS, Petitioner, v. STATE of Florida, Respondent.
    No. 57496.
    Supreme Court of Florida.
    Nov. 6, 1980.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., Miami, for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected probable jurisdiction in this Court. We issued the writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the writ of certiorari must be and is hereby discharged.

No motion for rehearing will be entertained by this Court. See Fla.R.App.P. 9.330(d).

It is so ordered.

Opinion Below: 372 So.2d 143.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.

ENGLAND, J., dissents.