author: ALMON, Justice. EMBRY, Justice

text:
    Ex parte James LANDRUM. (Re: James LANDRUM v. Franklin H. JAMES, Commissioner of the Alabama Department of Industrial Relations, and Montgomery Country Club).
    82-97.
    Supreme Court of Alabama.
    Feb. 11, 1983.
    Lawrence F. Gardella of Legal Services Corp. of Alabama, Montgomery, for petitioner.
    No brief of respondent.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C.J., and MADDOX, JONES, SHORES, BEATTY and ADAMS, JJ., concur.

FAULKNER and EMBRY, JJ., dissent.

EMBRY, Justice

(dissenting):

I respectfully dissent.

I do not agree that Landrum “voluntarily” abandoned his employment within the meaning of § 25-4-78(2). The question is not whether he voluntarily committed the act which led to his absence but whether he was absent from work voluntarily. It may be true that Landrum was at “fault” in failing to pay an accumulation of parking tickets, but he should not be found to have voluntarily abandoned his employment as a result of incarceration flowing from that violation of the law. When tested under the particular facts of this case, Landrum had “good cause” under the meaning of the statute for being absent from work.

The Unemployment Compensation Act is in the nature of insurance for the unemployed worker and is intended to be a remedial measure for his benefit. Therefore, it should be liberally construed in favor of the claimant and the disqualifications from benefits should be narrowly construed. Department of Industrial Relations v. Jaco, 337 So.2d 374 (Ala.Civ.App.1976).

I would grant the writ.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Nathaniel KING, Appellant, v. STATE of Florida, Appellee.
    No. 80-1208.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff and Robert C. Fallon, Asst. Public Defenders, and Douglas N. Duncan, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

The appellant, Nathaniel King, was charged by indictment with the crimes of robbery, a second degree felony, and aggravated battery, also a second degree felony. At the time of the alleged offenses the appellant was seventeen years old. He appeals his convictions for robbery and simple battery, contending that he, as a juvenile, was improperly indicted. We agree with this contention and reverse.

Chapter 39, Florida Statutes (1979) vests exclusive jurisdiction of criminal offenders below the age of eighteen years in the juvenile division of the circuit court subject to four exceptions: (1) after a waiver hearing a juvenile judge may certify a child fourteen years of age or older for trial as an adult, Section 39.02(5)(a); (2) a child, joined by his parent or guardian, may demand to be tried as an adult, Section 39.-02(5)(b); (3) a child, if age sixteen or seventeen at the time of the alleged offense, may be tried as an adult upon the filing of an information by the state attorney if the state attorney, in his judgment and discretion, determines that the public interest requires imposition of adult sanctions, Section 39.04(2)(e)(4); (4) a child of any age charged with a violation of Florida law punishable by death or life imprisonment shall be tried as an adult if an indictment on such charge is returned by the grand jury, Section 39.02(5)(a). Under the third exception, upon motion of the child, the case will be transferred back to the juvenile division if it is shown by the child that he had not previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony.

Chapter 39 does not explicitly provide for indictment of a juvenile for a crime not punishable by death or life imprisonment. Furthermore, the Florida courts have strictly limited adult treatment of juveniles to the exceptions delineated above. Robidoux v. Coker, 388 So.2d 719 (Fla. 4th DCA 1980), Pet. for rev. den., 389 So.2d 1108 (Fla.1980); A. D. T. v. State, 318 So.2d 478 (Fla. 1st DCA 1975); State ex rel. Lugo v. Sepe, 296 So.2d 640 (Fla. 3d DCA 1974); Whidden v. State, 374 So.2d 543 (Fla. 2d DCA 1979). A juvenile, therefore, may not be indicted unless the crime charged is one punishable by death or life imprisonment. Otherwise, a state attorney could circumvent Chapter 39 by seeking an indictment for every alleged juvenile offender. In Ro-bidoux, supra, this court aligned itself with the other district courts of appeal and held that the adult criminal division of the circuit court lacked jurisdiction to try a juvenile on two counts of an indictment for crimes not punishable by death or life imprisonment even though the indictment also charged the juvenile with a third offense which was punishable by death or life imprisonment. Consequently, in the present case, the appellant should not have been indicted and tried as an adult, and the criminal division lacked jurisdiction to try him as an adult.

In reversing appellant’s convictions we direct the trial court to enter an order dismissing the indictment without prejudice for the state attorney to proceed pursuant to Chapter 39. In doing so we perceive no double jeopardy problems in a retrial after the filing of an appropriate accusatory pleading. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Grant v. State, 390 So.2d 341 (Fla.1980).

In view of our reversal of appellant’s convictions it is unnecessary to discuss the other points raised on appeal.

As we noted in Robidoux, supra, this problem is appropriate for the legislature to address. Nevertheless, we perceive a rather incongruous situation as a result of our decision, and therefore, we determine this matter to be one of great public importance. Since Section 39.04(2)(e)(4), Florida Statutes (1979) permits the direct filing of an information against a juvenile sixteen years of age or older under certain circumstances, it does not logically follow that the same juvenile should be denied the greater degree of protection an indictment provides by having probable cause established by a grand jury. We therefore certify the following question to the Supreme Court:

MAY A JUVENILE WHO IS SUBJECT TO THE DIRECT FILING OF AN INFORMATION AGAINST HIM FOR A CRIME NOT PUNISHABLE BY DEATH OR LIFE IMPRISONMENT ALSO BE SUBJECTED TO THE PRESENTMENT OF AN INDICTMENT AGAINST HIM FOR LIKE CRIMES?

REVERSED AND REMANDED.

LETTS, C. J., and BERANEK, J., concur.


author: DAUKSCH, Judge.

text:
    STATE of Florida, Appellant, v. Jack McDONALD, Appellee.
    No. 82-122.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant.
    No appearance for appellee.
   DAUKSCH, Judge.

This is an appeal from an order of discharge under the speedy trial rule. Fla.R. Crim.P. 3.191. We affirm the order.

Appellee McDonald and Peter Ventura were arrested and charged with Murder in the First Degree on account of the death of Robert G. Clemente. The arrest of McDonald occurred on June 25, 1981 and according to the speedy trial rule the trial was required to have been commenced within 180 days, or by December 22, 1981. Fla.R. Crim.P. 3.191(a)(1). Because McDonald had not been brought to trial within the requisite time period he obtained the order of discharge. Fla.R.Crim.P. 3.191(a)(1), 3.191(d)(1).

The state appeals the discharge alleging that exceptional circumstances had been shown which prevented a timely trial. The speedy trial rule permits an extension of its effect once the court by written or recorded order finds one of the enumerated exceptional circumstances has been established. Rule 3.191(d)(2) . The definition of exceptional circumstances, under the Rule, is as follows:

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

The order which granted the appellee’s motion for discharge is set out below:

ORDER
THIS CAUSE having come on to be heard in Open Court on January 18,1982, upon Defendant, JACK MCDONALD’S, “Motion For Discharge” pursuant to FrCP 3.191(d)(1), and the Court having heard argument of counsel, makes the following finding of facts:
1. Defendant, JACK McDONALD, was indicted for First Degree Murder on June 25, 1981.
2. Defendant, JACK McDONALD, was arrested June 25, 1981.
3. Defendant, JACK McDONALD, was incarcerated in the Volusia County Jail from June 25, 1981, and continuously for One Hundred and Eighty-One (181) Days subsequent to that date.
4. The State of Florida continued this matter at Pre-Trial four (4) times for the following reasons:
a. On August 25, 1981, the State of Florida moved for a continuance and extension of Speedy Trial as they were unable to locate PETER VENTURA, the charged Co-Defendant.
b. On October 15, 1981, the State of Florida moved for a continuance based on the fact that Co-Defendant, PETER VENTURA, is a fugitive and being sought by authorities.
c. On November 6, 1981, the State of Florida, moved for a continuance based on the fact that they had a complex land fraud trial in Putnam County and would be unable to participate in Defendant, jack McDonald’s, trial.
d. On December 1, 1981, the State of Florida moved for a continuance and extension of Speedy Trial based on the grounds that they were unable to locate PETER VENTURA, the charged Co-Defendant.
5. On December 2, 1981, the State announced there was insufficient evidence to try Defendant, JACK McDONALD, without Co-Defendant, PETER VENTU-RA, who is at large and if Co-Defendant, PETER VENTURA, was found the State would move for a severance, try Co-Defendant, PETER VENTURA, first and attempt to use Co-Defendant, PETER VENTURA’S, testimony to convict Defendant, JACK McDONALD. The State of Florida never informed the Court that Co-Defendant, PETER VENTURA, would testify, only that they would attempt to make him a witness. Co-Defendant, PETER VENTURA, at his arrest made no statement admitting guilt nor has Co-Defendant, PETER VENTU-RA, ever agreed to testify for the State.
6. There was no exceptional circumstances justifying an extension of Speedy Trial and the State’s Motion for Extension of same was denied on December 21, 1981.
7. On January 11, 1982, the Defendant, JACK McDONALD, announced ready for trial at the Pre-Trial, and the State announced not ready again.
8. On January 18, 1982, the State announced not ready for trial, and the Defendant, JACK McDONALD, announced ready for trial.
WHEREFORE, it appearing to the Court that Two Hundred and Seven (207) Days have run from the date of Defendant’s arrest and the State of Florida has announced that it is not ready to proceed to trial and the Defendant, JACK MCDONALD, again announced ready and there being no showing of justifiable exceptional circumstances, it is, therefore,
ORDERED and ADJUDGED that the Defendant’s “Motion For Discharge” is hereby granted and he is discharged from further prosecution of the crime of Murder in the First Degree.

Our review of the record discloses that the trial judge was correct in his ruling regarding the lack of exceptional circumstances which would have permitted him to extend the speedy trial period. The state has attempted to hang its hat on the peg numbered (5) in 3.191(f) “a showing that a delay is necessary to accomodate a co-defendant, where there is reason not to sever the cases in order to proceed promptly with trial of the defendant” to argue its entitlement to an extension of the speedy trial period. This argument fails because the delay was not to accommodate a co-defendant but was a strategic maneuver by the state to attempt to have the co-defendant as a witness. Not once did the state forthrightly and honestly set forth to the trial judge that it was because of a missing witness which necessitated the delay. It was always, “Ventura, the co-defendant is missing and we need him at trial.”

In its brief and at trial the state has argued that the case of State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980), petition discharged, 401 So.2d 1321 (Fla.1981) is applicable because of the wording which says we agree with Kurtz (meaning State v. Kurtz, 354 So.2d 890 (Fla. 4th DCA 1978), cert. denied, 360 So.2d 1249 (Fla.1978)), which says when either the defendant or the state is properly granted a continuance then the matter is taken out of the operation of the speedy trial rule and the defendant is entitled to a speedy trial only within the constitutional guidelines.

Some statements in those eases appear to be in conflict with this case. Not just any continuance properly granted to the state will take the case out of the operation of the speedy trial rule. Only where the trial judge properly grants an extension and only for the time period of that extension is the speedy trial period affected. The words and dicta of Bufford which conflict with this case are hereby receded from and the words and dicta of Kurtz which are in conflict are rejected.

The order of discharge is

AFFIRMED.

COBB and SHARP, JJ., concur.

      . 3.191(d)(2). When Time May Be Extended. The periods of time established by this Rule for trial may at any time be waived or extended by order of the court (i) upon stipulation, signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, provided the period of time sought to be extended has not expired at the time of signing, or (ii) on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined, or (iii) with good cause shown by the accused upon waiver by him or on his behalf, or (iv) a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pre-trial motions, for interlocutory appeals, for an appeal by the State from an order dismissing the case, and for trial of other pending criminal charges against the accused. For the purposes of this Rule, any other delay shall be unexcused.

      . Although not at all legally significant, by pure happenstance and fortune the author of this opinion also authored Bufford and Kurtz.


author: LARRY G. SMITH, Judge.

text:
    STATE of Florida, Appellant, v. D.T.W., a child, Appellee.
    No. AD-3.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1983.

      Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellant.
    Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

In this opinion we apply the reasonable suspicion standard for searches conducted on a public primary or secondary school campus. In so doing we reverse the lower court’s order granting a motion to suppress marijuana and drug paraphernalia.

D.T.W., the appellee, a student at a Jacksonville area high school, parked his ear in the school parking lot. During a school lunch hour, a high school teacher’s aide to the Dean started patrolling the parking lot. An employee of the school board, he had been hired to patrol the hallways and parking lots to make sure the school code was not being violated. He routinely checked the parking lots and sometimes looked into cars.

On the day in question the aide happened to look into appellee’s car and spied a partially covered object that he was able to identify as a “bong.” The Dean of boys and the appellee were summoned. The Dean advised appellee that the school had the right to search his car. According to the Dean and the security guard, appellee was asked if they could search his car. Ap-pellee contended that the Dean threatened to call the police if he didn’t hand over the keys and permit a search of the car. Regardless of the version of the facts one accepts, it is uncontested that appellee turned over his car keys.

The “bong” was removed from the car, and in the process a package of Marlboro cigarettes was found in plain view lying on the console inside the car. The package was seized, since possession of cigarettes is prohibited by school regulations. The package, when opened, was found to contain marijuana cigarettes. The appellee was subsequently charged with the possession of both a controlled substance and drug paraphernalia.

Appellee filed a motion to suppress the evidence based upon an unreasonable search and seizure. The lower court granted the motion,' finding: 1) that school officials need have only a “reasonable suspicion” to search a child or his property while at school; 2) that the initial broad search of the parking lot could not be justified based on either the probable cause or reasonable suspicion standard; and 3) that the evidence was not sufficiently clear and convincing to show that the appellee voluntarily consented to the search. We affirm the trial judge’s application of the “reasonable suspicion” standard, but we disagree with his ruling on the second point, and find that the third point, consent to the search, is moot.

Initially, we note that in Nelson v. State, 319 So.2d 154 (Fla. 2nd DCA 1975), our sister court adopted the reasonable suspicion standard for a search and seizure on a public school campus. This court found the Nelson court’s reasoning quite persuasive and utilized the reasonable suspicion standard in reaching a determination in State v. F.W.E., 360 So.2d 148, 150 (Fla. 1st DCA 1978). Other decisions of this court have alluded to applicability of the reasonable suspicion standard. W.J.S. v. State, 409 So.2d 1209 (Fla. 1st DCA 1982); M.J. v. State, 399 So.2d 996 (Fla. 1st DCA 1981).

So that there is no doubt as to this issue, we affirm the trial court’s determination to apply the reasonable suspicion standard to searches and seizures at public primary and secondary schools when the search is executed by school officials. This view is in line with the perceptions of the Nelson court, and with the emerging national trend of the law in other jurisdictions. We note also that the 1982 Florida Legislature has expressly incorporated the “reasonable suspicion” standard into the statutory law of the state in Section 232.256, Florida Statutes (1982), authorizing a school principal or school employee designated by the principal to search a student’s locker or other storage area if there is “reasonable suspicion that a prohibited or illegally possessed substance or object” is contained within the locker or storage area. Section 232.256, subsections (1), (2).

The public interest in varying the degree of probable cause from traditional criminal standards, in the public primary or secondary school setting, has been carefully scrutinized by courts in other jurisdictions. See, e.g., State In the Interest of T.L.O., supra, footnote 3, at 428 A.2d 1333 and People v. D., supra, footnote 3, at 358 N.Y.S.2d 405-06, 315 N.E.2d 468-469. As expressed by the Wisconsin Court of Appeals, the public interest is in education, upon which society places a high value. It “requires an orderly atmosphere which is free from danger and disruption. The introduction of dangerous or illegal items or substances into the school presents a hazard for teachers and students.” In the Interest of L.L., supra, footnote 3, at 280 N.W.2d 350. Because students are compelled by law to attend school, the state has a legitimate and compelling interest — if not a duty — in assuring both parents and students that the large number of law abiding students will not be victimized by the criminal few. Accord: People v. D., supra; Ward, supra, footnote 3. at 233 N.W.2d 183.

This significant public interest, operating in conjunction with the doctrine of in loco parentis provides, in our opinion, ample justification for a lowered expectation of privacy on the part of students. Teachers and other school personnel act in loco parentis or in place of parents to a certain degree. Nelson, supra, at 156. This is so because school officials are charged by law with the control and discipline of students. Sections 230.23(6)(c); 232.25-232.28, Florida Statutes; 29 Fla.Jur. Schools §§ 110-112 (1967). Consequently, while the Constitution limits the power of school officials and provides the student with a reasonable expectation of privacy, the doctrine of in loco parentis expands the power of school officials and lowers the student’s expectation of privacy. In Re W., supra, footnote 3, at 105 Cal.Rptr. 777.

From the above, it seems clear that the realities of the school setting require that teachers and other school personnel have the power to make an immediate, limited search, for contraband, weapons, or other prohibited objects or substances, when a reasonable subjective suspicion supported by objective, articulable facts would lead a reasonably prudent person to suspect that these items are present, or that school regulations are being violated.

Maintenance of discipline often requires immediate action; it cannot await the procurement of a search warrant based on probable cause. McKinnon, supra, footnote 3, at 558 P.2d 784. So long as the school employee or official has a reasonable suspicion and is pursuing the public’s legitimate interest in maintaining order, discipline, safety, and education, the Fourth Amendment does not require that a warrant be obtained before conducting a search. Bil-brey, supra, footnote 3, at 28.

To assist in determining whether a reasonable suspicion to search exists, several factors have been suggested, including consideration of the child’s age, history and record in school; the prevalence and seriousness of the problem in the school to which the search was directed; the exigencies in making a search without delay and further investigation; the probative value and reliability of the information used as a justification for the search; and the particular teacher or school official’s experience with the student. See, State In the Interest of T.L.O., supra, at 428 A.2d 1334; In the Interest of L.L., supra, at 280 N.W.2d 351; and People v. D., supra, at 315 N.E.2d 470. These factors are neither mandatory considerations nor an exhaustive and complete list of all the considerations possible in determining if a reasonable suspicion to search exists. But they are a starting point.

In this case, the lower court determined that the initial patrol through the parking area, in which the teacher’s aide to the Dean looked through the appellee’s car window and saw the bong, was without probable cause or reasonable suspicion, because the teacher’s aide did not have reason to believe that any vehicle contained contraband or weapons. However, upon viewing the facts of this case in the light of the foregoing principles, it appears to us that the action of the teacher’s aide was fully justified and reasonable, and not a “search” within the prohibition of the Fourth Amendment.

The teacher’s aide testified that he was looking for “suspicious things” and that he routinely patrolled the parking lot as part of his duties. Thus, his duties would clearly encompass looking for contraband, checking to make sure no one was trying to break into a student’s car, and patrolling to supervise students in the lot during their lunch hour. We observe that the parking lot was a public place, open to all students and school officials, where the expectation of privacy would be only minimal.

The teacher’s aide further stated that there had been problems with weapons in students’ cars and that he had encountered these problems. The evidence thus points to the existence of particular problems of legitimate concern to school officials, and the particular school official’s experience in dealing with those problems. Considering that our public schools have a generally recognized duty to control and supervise students on campus, failure to fulfill this obligation by school personnel could subject school authorities to liability for injuries to a student resulting from such failure. See, Bryant v. School Board of Duval County, 399 So.2d 417, 420 (Fla. 1st DCA 1981), modified 417 So.2d 658 (Fla.1982).

Under the circumstances presented, we hold that neither probable cause nor reasonable suspicion was required in order to justify the patrolling and supervisory activities of the teacher’s aide, nor to justify his spotting of an object within appel-lee’s vehicle which was readily visible and identifiable from outside the vehicle. Since the teacher’s aide had a right and a duty to be where he was, peering into the window and seeing the “bong” in open view in ap-pellee’s car was nothing more than a legally permissible pre-intrusive open view. Ensor v. State, 403 So.2d 349, 352 (Fla.1981). Seeing what he reasonably thought was a “bong,” he had at a minimum a reasonable suspicion to believe school regulations had been violated. As the Dean noted in his testimony, possession of a waterpipe on campus was prohibited by school regulations. At this point, the Dean was legally authorized to enter the car and retrieve the bong. Such an act was a limited intrusion on appellee’s expectation of privacy based on far more than a reasonable suspicion.

In the process of retrieving the “bong” from the car, the Dean observed a package of cigarettes on the console in plain view pursuant to a “prior valid intrusion.” Ensor, supra, at 352. The Dean had the right to confiscate the contraband package of cigarettes and to open it to determine that it in fact contained cigarettes. As previously noted, it contained marijuana. We find no unlawful search or seizure in such actions.

Under our ruling we have found that the school officials had a reasonable suspicion justifying the search of the vehicle. Therefore, the issue of consent to search, addressed by the trial court is moot.

The order granting the motion to suppress is REVERSED, and this cause is REMANDED for further proceedings not inconsistent with this opinion.

WENTWORTH, J., and McCORD, GUYTE, P., Jr., Associate Judge (Retired), concur.

      . Section 893.145(12)(/), Florida Statutes (Supp.1980), which defines “drug paraphernalia” to include a “bong” does not define the term; nor does any dictionary we have examined. The school officials below seem to equate a bong with a waterpipe. At least one other court has drawn a similar conclusion. See State v. Jordan, 29 Wash.App. 924, 631 P.2d 989, 990 (1981). Alternatively, courts have referred to a bong as a pipe, Taylor v. State, 604 S.W.2d 175, 179 (Tex.Cr.App.1980); as a hash pipe, State v. Peller, 37 Or.App. 467, 587 P.2d 510, 512 (1978); and merely as a “smoking device,” apparently used in conjunction with marijuana. Goodner v. State, 546 P.2d 653, 656 (Okl.Cr.App.1976).

      . The reasonable suspicion standard does not apply in cases involving a search directed or participated in by a police officer. M.J. v. State, supra, at 998.

      . See, e.g., State In the Interest of T.L.O., 178 N.J.Super. 329, 428 A.2d 1327, 1333 (Juv. & Dom.Rel.Ct.1980); In the Interest of L.L., 90 Wis.2d 585, 280 N.W.2d 343, 351 (1979); Bilbrey v. Brown, 481 F.Supp. 26, 28 (D.Or.1979); State v. McKinnon, 88 Wash.2d 75, 558 P.2d 781, 784 (1977); People v. Ward, 62 Mich.App. 46, 233 N.W.2d 180, 183 (1975); Doe v. State, 88 N.M. 347, 540 P.2d 827, 832 (1975); People v. D. 34 N.Y.2d 483, 358 N.Y.S.2d 403, 315 N.E.2d 466, 469 (1974); In Re W., 29 Cal. App.3d 777, 105 Cal.Rptr. 775 (1973); and State v. Baccino, 282 A.2d 869, 872 (Del.Super.1971); contra, Picha v. Wielgos, 410 F.Supp. 1214 (N.D.Ill.1976) (principal acting on phone tip contacted police, then had girls searched by nurse; court accepted lesser standard where related to discipline or safety, but held probable cause required where essentially criminal investigation); see also Admissibility in criminal case of evidence obtained by search conducted by school official or teacher, 49 A.L.R.3d 978 (1973). See also Search of students by school officials, 5 Fla.State L.Rev. 526 (1977).

      . We note that the ordinary requirements of the Fourth Amendment have often been modified to accomodate legitimate public interests in other settings, as for example, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (stop and frisk); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (administrative search); United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L. Ed.2d 617 (1977) (border searches); United States v. Davis, 482 F.2d 893 (9th Cir.1973) (airline passenger searches at airports). In each case any deviation from the traditional probable cause standard utilized in criminal cases is based, in part, on the reasonableness of a valid public interest in justifying an intrusion upon the individual’s legitimate expectation of privacy. Camara, supra, at 387 U.S. 539, 87 S.Ct. at 1736.

      . Sections 230.23(6)(b); 232.01, Florida Statutes (1981).

      . The courts are not unanimous in accepting the in loco parentis doctrine as the basis for the special powers accorded to school officials. See, Horton v. Goose Creek Independent School District, 690 F.2d 470 (5th Cir.1982), (withdrawing opinion 677 F.2d 471), stating, at page 481, footnote 18: “We agree with most courts that school officials have special duties with associated powers, but we prefer not to tie them to the in loco parentis doctrine. Instead we view the school as a special situation, in the same way that the border or an airport presents a special situation, requiring the courts to allow some intrusions on otherwise protected privacy.”

      .Even in the absence of reasonable suspicion, under this court’s opinion in W.J.S. v. State, supra, school officials have the authority to temporarily detain a student, on the school premises, for the purpose of taking the student to office of an assistant principal for the purpose of having him “checked out,” although the validity of any subsequent search would depend upon the circumstances and conditions then existing. 409 So.2d at 1210.

      . Id.; see also 79 C.J.S. Schools & School Districts § 494 d. (1952); Gammon v. Edwardsville Community Unit School District No. 7, 82 Ill.App.3d 586, 38 Ill.Dec. 28, 403 N.E.2d 43 (1980).

      . The United States Court of Appeals, Fifth Circuit, has recently approved the exploratory canine sniffing of student cars and lockers, noting the analogy between the court-created doctrine of “public smell,” and the “public view” exclusion from Fourth Amendment coverage; but the court disapproved sniffing by the dogs of the students’ persons in the manner involved in the case. Horton v. Goose Creek Independent School District, supra, footnote 6.

      . As noted previously, warrants are not always needed by school officials who are acting with reasonable suspicion in pursuance of the public’s legitimate interests in maintaining order, discipline, safety, and education. Bilbrey, supra at 28. We note, parenthetically, that this search of an automobile in a public school parking lot would also appear justified based on “exigent circumstances under the automobile exception to the Fourth Amendment’s warrant requirements.” Cardwell v. Lewis, 417 U.S. 583, 593-596, 94 S.Ct. 2464, 2470-2472, 41 L.Ed.2d 325 (1974); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), reh. denied, 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94. See, further, opinion of the Fourth District, State v. Melendez, 392 So.2d 587, 589 (Fla. 4th DCA 1981), noting, in footnote 2, the question as to the continued viability of the exigent circumstances requirement as applied to vehicle searches.


author: PER CURIAM.

text:
    STATE of Louisiana v. Elijah James SHEPARD.
    No. 82-KA-1503.
    Supreme Court of Louisiana.
    Jan. 28, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William “Chuck” Credo, Stephen M. Little, Asst. Dist. Attys., for plaintiff-appellee.
    Joseph L. Montgomery, Indigent Defender Bd., Metairie, for defendant-appellant.
   PER CURIAM.

Defendant, charged with armed robbery, pleaded guilty on January 4, 1982 to simple robbery pursuant to a plea bargain which did not include an agreement as to sentence. He was then remanded to parish prison.

When defendant appeared for sentencing on March 12, 1982, defense counsel pointed out that defendant “does appear to have a mental problem”, noting that he attempted to commit suicide in parish prison. However, defense counsel simply requested, in the event the defendant is sentenced to prison, that “the Court would ask that the Department of Corrections make sure that he gets the proper medical attention”.

The trial judge determined that defendant had been examined by a psychiatrist, but that no reports had been filed in the record and no hearings had been held on defendant’s competency to stand trial (or to plead). Remarking that “this is subject to further review in Angola”, the trial judge then sentenced defendant to seven years imprisonment at hard labor, ordering that defendant “be given medical treatment as required”.

The trial court erred in sentencing defendant, after being notified of his history of mental problems, without inquiring into defendant’s possible ineompetency at the time of his plea. Therefore, the sentence must be set aside. However, since psychiatric information for the pertinent period of time is apparently available, it is possible that the trial judge may be able to determine on remand the defendant’s competency on the date of his plea.

Accordingly, the sentence is set aside, and the matter is remanded to the trial court with instructions to determine defendant’s competency at the time of his plea. If defendant is determined to have been incompetent, then the trial judge should vacate the plea. If defendant is determined to have been competent, then the trial judge should resentence defendant, after which defendant will be entitled to an appeal on the conviction and sentence.

WATSON, J., dissents.

      . The trial judge painstakingly advised defendant of the rights he was waiving by pleading guilty, of the possible sentence, and of the elements of the offense. The judge then had defendant state the details of the event, and defendant described taking money by force from his elderly landlady’s purse. However, he denied the use of a knife and claimed the lady owed him the money.

      . The record contains a January 11, 1982 memorandum to the trial judge from the parish judicial administrator, stating that the office had been informed defendant “has an extensive mental problem history and has attempted suicide many times”. The memorandum further stated that defense counsel had been notified and had stated he would immediately file a motion for sanity hearing.

      . This court has determined that defendant underwent a medical examination at parish prison on September 11, 1981, after being in the psychiatric ward at Charity Hospital the previous week. He also underwent psychiatric examination at parish prison on September 16, November 12 and 19, and January 7 and 11, 1982.


author: CALOGERO, Justice,

text:
    Mrs. Shannon McDonald McCLENDON v. William F. KELLY, et al. William F. KELLY v. Clydia DAVENPORT, et al.
    No. 83-C-0034.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In Re: Clydia Davenport and Glenn L. Morgan, applying for Writ of Certiorari, Parish of Jefferson, Number 208-417.

Denied.

CALOGERO, Justice,

concurs in the denial.

Concerning A/E # 3, relators must first apply to the 5th Circuit Court of Appeal. Concerning A/E’s 1 & 2, relators have not applied here within 10 days of the Court of Appeal action. Relators may nonetheless now seek an order from the trial judge setting a date within which to apply here.


author: LEMMON, Justice,

text:
    CITY COURT OF BREAUX BRIDGE v. TOWN OF BREAUX BRIDGE.
    No. 83-CC-0199.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
   In Re: City Court of Breaux Bridge, applying for Supervisory Writ, Parish of St. Martin, 16th Judicial District Court, No. 36871; Third Circuit Court of Appeal, No. 82-831.

Denied.

LEMMON, Justice,

concurs in denial.

The substantial issue of the constitutionality of La.R.S. 13:2488.76 is better presented by a litigant in an adversary proceeding.

DIXON, C.J., and WATSON, J., would grant the writ.

WATSON, J., notes that he believes the City Court may have the inherent authority to order the City to pay its necessary expenses.


author: PER CURIAM. CALOGERO, Justice,

text:
    STATE of Louisiana v. Harold GARNER.
    No. 82-KA-0754.
    Supreme Court of Louisiana.
    Feb. 11, 1983.
   PER CURIAM.

Defendant Harold Garner’s conviction was affirmed in this Court by per curiam opinion on December 1, 1982. On January 4, 1983 Garner filed a “Motion for Rehearing Review, Motion for Stay Order”, “Motion for Writ of Certiorari” and “Motion for Writ of Habeas Corpus”, a pleading originally given No. 83-KH-0017 in this Court.

We have lodged the application in these proceedings as an out-of-time application for rehearing from the December 1, 1982 judgment affirming defendant’s conviction, and now entertain the application on its merits.

Rehearing denied 422 So.2d 1164 (La.1982). See State v. Hayes, 412 So.2d 1323 (La.1982) and State v. Yarbrough, 418 So.2d 503 (La.1982).

LEMMON and DENNIS, JJ., concur.

CALOGERO, Justice,

dissents from the denial of the rehearing.

I would grant the rehearing application. The Boykin colloquy in this case is more closely akin to the colloquys in State v. Robicheaux and Powell, 412 So.2d 1313 (La.1982) and State v. Age, 417 So.2d 1183 (La.1982) than to the colloquys in State v. Hayes, 412 So.2d 1323 (La.1982) and State v. Yarbrough, 418 So.2d 503 (La.1982), and thus should be controlled by the former two cases. Furthermore Robicheaux and Age were rendered by the full Court while Hayes and Yarbrough were rendered by panels of this Court including Court of Appeal judges.


author: ADKINS, Justice.

text:
    The MIAMI HERALD PUBLISHING CO., etc., et al., Petitioners, v. Royce R. LEWIS, et al., Respondents.
    No. 59392.
    Supreme Court of Florida.
    Sept. 2, 1982.
    Rehearing Denied March 2, 1983.

      Parker D. Thomson, Sanford L. Bohrer and Richard J. Ovelmen of Paul & Thomson, Miami, James D. Spaniolo, Gen. Counsel, The Miami Herald, Miami, and Florence Beth Snyder, Gen. Counsel, Palm Beach Newspapers, Inc., West Palm Beach, for petitioners.
    Jim Smith, Atty. Gen., and Lucy H. Harris, Asst. Atty. Gen., Tallahassee, for respondents.
    Barry Scott Richard of Roberts, Miller, Baggett, LaFace, Richard & Wiser, Tallahassee, for The Florida Press Ass’n and The Florida Soc. of Newspaper Editors, amicus curiae.
   ADKINS, Justice.

The matter before us has been certified as of great public importance by the Fourth District Court of Appeal in the case of Miami Herald Publishing Co. v. Lewis, 383 So.2d 236 (Fla. 4th DCA 1980). We have jurisdiction. Art. Y, § 3(b)(4), Fla. Const.

The questions certified are:

(1) HOW CAN THE TRIAL COURTS MEANINGFULLY INCLUDE THE MEDIA AT EVIDENTIARY HEARINGS CONVENED TO DECIDE WHETHER THE MEDIA SHOULD BE PRECLUDED FROM ACCESS TO THAT VERY SAME EVIDENCE?
(2) SHOULD THIS COURT ABANDON THE THREE-PRONGED STANDARD WHICH WE ADOPTED IN MIAMI HERALD v. STATE IN VIEW OF THE HOLDING IN GANNETT ?

The district court held that in light of pretrial publicity, the trial judge in the murder trial of Brooks John Bellay properly ordered closure of a hearing on a motion to suppress Bellay’s confessions, but that the judge improperly sealed records pertaining to the suppression hearing.

The facts upon which the trial judge based his order closing the hearing and sealing the record are as follows. Fourteen-year-old Brooks John Bellay became the focal point of an investigation into the murder of four-year-old Angel Halstead. Angel’s disappearance, the search for and discovery of her body, and the investigation into her murder were all extensively covered by local news media. Bellay was interviewed and quoted widely by the print and broadcast media, perhaps because of his active role in the search and his seemingly intimate knowledge of the crime. Bellay was questioned by police shortly after Angel’s body was found. He gave them four inculpatory statements. The details of the search, the killing, and Bellay’s confession were widely reported by the press, as were certain of Bellay’s pretrial hearings. Dozens of articles and several videotapes of television broadcasts were presented by Bellay’s attorney to the trial judge. The tapes and articles made numerous and repeated references to Bellay and included interviews with him and quotations from him. The public had been made aware, by the news media, that Bellay had confessed to the crime. The public was virtually inundated with information detailing the crime.

Petitioner’s position in the matter is that this Court should formally adopt the so-called “three-pronged test” for closure of judicial proceedings, and that press participation in closure motions poses no threat to the fair administration of justice. See Miami Herald Publishing Co. v. State, 363 So.2d 603 (Fla. 4th DCA 1978). The three-pronged test would impose the following requirements on an order to close a pretrial hearing.

1. Closure is necessary to prevent a serious and imminent threat to the administration of justice;

2. No less restrictive alternative measures than closure are available; and

3. Closure will in fact achieve the court’s purpose.

Respondent, on the other hand, argues that we should abandon the three-pronged standard in view of the holding of the United States Supreme Court in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Respondent further argues that there are certain situations that warrant exclusion of the press from pretrial suppression hearings. Respondent finally argues, as an alternative to the three-pronged test, that the following requirements be imposed on closure of a pretrial hearing.

1. Closure is necessary to prevent a serious and imminent threat to the administration of justice;

2. No alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and

3. Closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.

We adopt the three-pronged test proposed by respondent.

The precise question raised in this case is whether a trial court in a criminal proceeding has the authority to exclude the public and press from a pretrial suppression hearing in order to assure the defendant a “speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.” U.S. Const, amend. VI.

In considering this question, we must delicately balance the competing yet fundamental rights of an accused to a fair trial by an impartial jury, and of the free press guaranteed by the first amendment. The inherent conflict between these two rights is a difficult one to resolve, and in so doing, we seek a solution that gives maximum importance to both interests.

An additional factor that must be considered is the inherent power and interest of the court in guaranteeing to the litigants the fundamental right to a fair trial. The question then, is three dimensional, dealing with the power and authority of the court, the rights of the defendant, and the rights and interests of the public and the press.

Generally speaking, an accused who seeks to exclude the news media from a judicial proceeding does so based on the sixth amendment right to a “speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Constamend. VI. Although this has been recognized to be a fundamental right of one accused of a crime, Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); United States v. Columbia Broadcasting System Inc., 497 F.2d 102 (5th Cir.1974); it is also clear that freedom of the press is a basic right and must be weighed in the balance when fair trial rights are being considered.

Courts have the inherent power “to preserve order and decorum in the court room, to protect the rights of the parties and witnesses and generally to further the administration of justice.” State ex rel. Gore Newspapers Co. v. Tyson, 313 So.2d 777, 782 (Fla. 4th DCA 1975) (overruled English v. McCrary, 348 So.2d 293 (Fla.1977), citing People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972), cert. denied, 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273 (1973). “This power exists apart from any statute or specific constitutional provision and springs from the ere-ation of the very court itself; it is essential to the existence and meaningful functioning of the judicial tribunal.” Id. at 781.

We held in State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla.1977), that the public should generally have unrestricted access to all judicial proceedings, id. at 908, and we recognize that the news media, even though not a party to litigation, has standing to question the validity of an order restricting publicity because its ability to gather news is directly impaired or curtailed. Id. “Nevertheless, a trial court has the inherent power to' control the conduct of the proceedings before it, and it is the trial court’s responsibility to protect a defendant in a criminal prosecution from inherently prejudicial influences which threaten [the] fairness of his trial and the abrogation of his constitutional rights.” Id. at 909, citing United States v. Dickinson, 465 F.2d 496 (5th Cir.1972) (footnotes omitted).

Two recent United States Supreme Court decisions pertinent to the issues are Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) and Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). In Gannett, defense attorneys for two men charged with murder moved to close a pretrial suppression hearing to the press and public. The defendants’ lawyers argued that adverse publicity had jeopardized their clients’ fair trial rights. The motion was not opposed by the prosecutor and was not objected to by the representative of the petitioner newspaper. The trial judge ultimately granted defendants’ motion, concluding that the interests of the press and public were outweighed by defendants’ right to a fair trial. The trial judge found that an open suppression hearing would pose a “reasonable probability of prejudice to these defendants....” 443 U.S. at 376, 99 S.Ct. at 2903. The Supreme Court of the State of New York vacated the trial court’s orders holding that the exclusionary orders transgressed the public’s vital interest in open judicial proceedings and constituted an unlawful prior restraint in violation of the first and fourteenth amendments. Gannett Co. v. DePasquale, 55 App.Div.2d 107, 389 N.Y.S.2d 719 (1976).

On appeal, the New York Court of Appeals upheld the exclusion based on the danger to the defendants’ fair trial rights, which rights overcame the presumption of openness surrounding criminal trials. Gannett Co., Inc. v. DePasquale, 43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544 (1977). The United States Supreme Court in Gan-nett considered two aspects of the access issue. As to the sixth amendment, the Court held that “members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials.” 443 U.S. at 390, 99 S.Ct. at 2911.

The Court, while declining to rule on the first amendment claims, concluded that the actions of the trial judge were consistent with any right of access that may have been available under the first and fourteenth amendments.

Several factors lead to the conclusion that the actions of the trial judge here were consistent with any right of access the petitioner may have had under the First and Fourteenth Amendments. First, none of the spectators present in the courtroom, including the reporter employed by the petitioner, objected when the defendants made the closure motion. Despite this failure to make a contemporaneous objection, counsel for the petitioner was given an opportunity to be heard at a proceeding where he was allowed to voice the petitioner’s objections to closure of the pretrial hearing. At this proceeding, which took place after the filing of briefs, the trial court balanced the “constitutional rights of the press and the public” against the “defendants’ right to a fair trial.” The trial judge concluded after making this appraisal that the press and the public could be excluded from the suppression hearing and could be denied immediate access to a transcript, because an open proceeding would pose a “reasonable probability of prejudice to these defendants.” Thus, the trial court found that the representatives of the press did have a right of access of constitutional dimension, but held, under the circumstances of this case, that this right was outweighed by the defendants’ right to a fair trial. In short, the closure decision was based “on an assessment of the competing societal interests involved .... rather than on any determination that First Amendment freedoms were not implicated.” Saxbe [v. Washington Post. Co.] supra, [417 U.S. 843] at 860, 94 S.Ct. 2811, [at 2819] 41 L.Ed.2d 514 (Powell, J., dissenting).

Furthermore, any denial of access in this case was not absolute but only temporary. Once the danger of prejudice had dissipated, a transcript of the suppression hearing was made available. The press and the public then had a full opportunity to scrutinize the suppression hearing. Unlike the case of an absolute ban on access, therefore, the press here had the opportunity to inform the public of the details of the pretrial hearing accurately and completely. Under these circumstances, any First and Fourteenth Amendment right of the petitioner to attend a criminal trial was not violated.

443 U.S. at 392-93, 99 S.Ct. at 2911-12 (footnote omitted).

In the conclusion of the Court’s opinion it is made clear that the constitution affords no affirmative right of access to the pretrial hearing at issue in Gannett.

Richmond Newspapers involved the closure of an entire trial. This was the defendant’s fourth trial on the same murder charges. Defense counsel’s motion to close the trial to the public was not objected to and was granted by the trial judge. The trial judge apparently relied on a Virginia statute which granted discretion to courts in criminal cases to exclude persons from the trial whose presence would impair the conduct of a fair trial. The Virginia Supreme Court found no reversible error. The United States Supreme Court reversed, holding that the court order violated the right of access of the public and the press to criminal trials granted by the first and fourteenth amendments. Gannett was distinguished in Richmond Newspapers, as follows:

In Gannett ..., the Court was not required to decide whether a right of access to trials, as distinguished from hearings on pretrial motions, was constitutionally guaranteed. The Court held that the Sixth Amendment’s guarantee to the accused of a public trial gave neither the public nor the press an enforceable right of access to a pre trial suppression hearing. One concurring opinion specifically emphasized that “a hearing on a motion before trial to suppress evidence is not a trial ...” 443 U.S., at 394 [99 S.Ct. at 2912], ... (Burger, C.J., concurring). Moreover, the Court did not decide whether the First and Fourteenth Amendments guarantee a right of the public to attend trials, id., at 392, and n. 24 [99 S.Ct. at 2911, and n. 24] nor did the dissenting opinion reach this issue. Id. at 447 [99 S.Ct. at 2940] (opinion of Black-mun, J.).

448 U.S. at 564, 100 S.Ct. at 2821 (emphasis in the original.)

The specific holding in Richmond Newspapers is that the right to attend criminal trials is implicit in the guarantees of the first amendment. This holding is somewhat qualified, however, by footnote 18, which provides, inter alia:

We have no occasion here to define the circumstances in which all or parts of a criminal trial may be closed to the public .... but our holding today does not mean that the First Amendment rights of the public and representatives of the press are absolute. Just as a government may impose reasonable time, place, and manner restrictions upon the use of its streets in the interest of such objectives as the free flow of traffic ... so may a trial judge, in the interest of the fair administration of justice, impose reasonable limitations on access to a trial.

448 U.S. at 581 n. 18, 100 S.Ct. at 2830 n. 18.

The Richmond Newspapers decision is distinguishable from Gannett, and from the facts of the instant case, so it does not set forth mandatory precedent with respect to the question before us.

There is no first amendment protection of the public’s and press’ rights to attend pretrial suppression hearings as distinguished from the right to attend a criminal trial. Indeed, in his concurring opinion in Richmond Newspapers, Justice Stewart suggested that there has not yet been a definitive statement by the Court concerning the application of the first and fourteenth amendments to pretrial suppression hearings. 448 U.S. at 598-99, 100 S.Ct. at 2839. The Court in Gannett spoke to this issue generally, and in dicta, however, it was explicitly stated that a decision would not be made based on the first and fourteenth amendments. This, we feel, leaves us considerable leeway in determining how we will resolve this problem in the state of Florida.

This Court has been supportive of open government, as witnessed by our decisions in Board of Public Instruction v. Doran, 224 So.2d 693 (Fla.1969), and City of Miami Beach v. Berns, 245 So.2d 38 (Fla.1971). We have been supportive of open government with respect to the judicial branch as well. In In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So.2d 764 (Fla.1979), we permitted the electronic media to have access to courtrooms. “The prime motivating consideration prompting our conclusion is this state’s commitment to open government.” 370 So.2d at 780 (footnote omitted). And in State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904, 908-09 (Fla.1977), we held:

A trial is a public event, and there is no special perquisite of the judiciary which enables it to suppress, edit or censor events which transpire in proceedings before it, and those who see and hear what transpired may report it with impunity, subject to constitutional restraints mentioned herein.

(Footnote omitted).

So a concern for open government is not new to us, nor is the application of a policy of open government to the judicial branch. See also King v. State, 390 So.2d 315 (Fla. 1980), aff’d in part and rev'd in part, State v. Hegstrom, 401 So.2d 1343 (Fla.), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981); Harnum v. State, 384 So.2d 1320 (Fla. 2d DCA 1980); Green v. State, 377 So.2d 193 (Fla. 3d DCA 1979); Smith v. State, 376 So.2d 455 (Fla. 1st DCA 1979), cert. denied, 402 So.2d 613 (Fla.1981), (all following the Florida Supreme Court’s decision in Post-Newsweek).

In our opinion, Gannett does not require that we abandon the three-pronged test. However, it should be modified in the following particulars, as suggested by respondent.

1. Closure is necessary to prevent a serious and imminent threat to the administration of justice;

2. No alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and

3. Closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.

Every defendant has the right “to have a ... trial ... in the county where the crime was committed.” Art. I, § 16, Fla.Const. (1968). There is no first amendment protection of the press’ rights to attend pretrial hearings. Gannett. We should not elevate this non-constitutional privilege of the press above the constitutional right of the defendant to be tried in the county where the crime was committed. A change of venue should not be considered as an alternative to closure.

Public access to the courts is an important part of the criminal justice system, as it promotes free discussion of governmental affairs by imparting a more complete understanding to the public of the judicial system. Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). Such access gives the assurance that the proceedings were conducted fairly to all concerned. Richmond Newspapers. Aside from any beneficial consequences which flow from having open courts, the people have a right to know what occurs in the courts. The Supreme Court of the United States has noted repeatedly that a trial is a public event. What transpires in the courtroom is public property. Craig v. Harney, 331 U.S. 367, 373-74, 67 S.Ct. 1249, 1263-54, 91 L.Ed. 1546 (1947). Public access also serves as a check on corrupt practices by exposing the judicial process to public scrutiny, Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, 559-560, 96 S.Ct. 2791, 2802-2803, 49 L.Ed.2d 683 (1976), and protects the rights of the accused to a fair trial. Richmond Newspapers, 448 U.S. at 564, 100 S.Ct. at 2821 et seq. Finally, because participating lawyers, witnesses and judges know their conduct will be subject to public scrutiny, it is fair to conclude that they will be more conscientious in the performance of their roles.

The above three-pronged test provides the best balance between the need for open government and public access, through the media, to the judicial process, and the paramount right of a defendant in a criminal proceeding to a fair trial before an impartial jury. The courts of other states have recently faced the issue of press access to pretrial suppression hearings or trials, and their decisions support endorsement of three-part tests similar to the one here. Lexington Herald Leader Co. v. Tackett, 601 S.W.2d 905 (Ky.1980); Detroit Free Press, Inc. v. Recorder’s Court Judge, 409 Mich. 364, 294 N.W.2d 827 (1980); Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318, cert. denied, 449 U.S. 992, 101 S.Ct. 528, 66 L.Ed.2d 289 (1980); Herald Ass’n v. Ellison, 138 Vt. 529, 419 A.2d 323, (1980); Federated Publications, Inc. v. Kurtz, 94 Wash.2d 51, 615 P.2d 440 (1980); State ex rel. Herald Mail Co. v. Hamilton, 267 S.E.2d 544 (W.Va.1980); Williams v. Stafford, 589 P.2d 322 (Wyo.1979).

The other question certified to us by the District Court reads:

How can the trial courts meaningfully include the media at evidentiary hearings convened to decide whether the media should be precluded from access to that very same evidence?

In State ex rel. Pensacola News-Journal, Inc. v. Fleet, 388 So.2d 1106, 1107 (Fla. 1st DCA 1980), the court correctly noted “that only the circumstances surrounding the giving of the statement [to be suppressed] are at issue [in a suppression hearing], not necessarily the contents of the alleged confession.” Thus, in a typical case, a carefully controlled suppression hearing can itself be conducted in open court without creating any prejudice whatever. The issues concern not so much the contents of a confession or of a wiretap, or the nature of the evidence seized, but the circumstances under which the prosecution obtained this material.

The news media has been the public surrogate on the issue of courtroom closure. Therefore, the news media must be given an opportunity to be heard on the question of closure prior to the court’s decision. Implicit in the right of the members of the news media to be present and to be heard is the right to be notified that a motion for closure is under consideration. This procedure will avoid unnecessary appeals that will otherwise eventually occur.

At the hearing, those who seek closure should first provide an adequate basis to support a finding that closure is necessary to prevent a serious and imminent threat to the administration of justice. The primary purpose of closure is to protect the defendant’s right to a fair trial, one free of widespread hostile publicity, so as to insure him an unbiased jury. The factors to be considered include the extent of prior hostile publicity, the probability that the issues involved at the pretrial hearing will further aggravate the adverse publicity, and whether traditional judicial techniques to insulate the jury from the consequences of such publicity will ameliorate the problem. Absent a showing of widespread adverse publicity, the trial court should not grant a motion to close the hearing. The trial judge must determine if there is a serious and imminent threat that publication will preclude the fair administration of justice. In determining this question, an evidentiary hearing should be held and findings of fact should be recorded by the judge in his order granting or refusing closure.

Second, those * seeking closure should be required to show that no less restrictive alternative measures than closure are available for this purpose. Where a less restrictive alternative is available for assuring the fair trial guarantee and the use . of the alternative does not unduly burden the expeditious disposition of the cause, the alternative procedure should be opted for in preference to closure. The following alternatives should be considered: continuance, severance, change of venire, voir dire, peremptory challenges, sequestration, and admonition of the jury. One or more of these alternatives may adequately protect the accused’s interest and relieve the court of any need to close the proceeding in advance.

Third, those seeking closure should demonstrate that there is a substantial probability that closure will be effective in protecting against the perceived harm. Where prejudicial information already has been made public, there would be little justification for closing a pretrial hearing in order to prevent only the disclosure of details which had already been publicized. Of course, the probability that the issues involved at the pretrial hearing will further aggravate the adverse publicity is a factor to be considered in determining whether or not closure is necessary to prevent a serious and imminent threat to the administration of justice.

The trial court should begin its consideration with the assumption that a pretrial hearing be conducted in open court unless those seeking closure carry their burden to demonstrate a strict and inescapable necessity for closure. The issues considered at such hearings are of great moment beyond their importance to the outcome of the prosecution. A motion to suppress involves allegations of misconduct by police and prosecution that raise constitutional issues. Such allegations, although they may prove to be unfounded, are of importance to the public as well as to the defendants. The searches and interrogations that such hearings evaluate do not take place in public. The suppression hearing is the only opportunity that the public has to learn about police and prosecutorial conduct. It is important that a decision of the trial judge on a motion to suppress be made on the basis of evidence and argument offered in open court, so that all who care to see or read about the case may evaluate for themselves the propriety of the exclusion.

The trial court, upon ruling that a closure motion is warranted, must make findings of fact and must extend its order no further than the circumstances warrant. It is impossible to adopt prophylactic rules to guide the trial judge in applying the three-pronged test. It is within the inherent power of the court to protect the rights of the parties and witnesses and generally to further the administration of justice. The judge’s goal is to balance the countervailing interest, restricting each as little as possible while still serving the ends of justice.

As a summary of guidelines for the trial judge to use in applying the “three-pronged standard,” we hold: (1) Notice must be given to at least one representative of the local news media when a motion for closure is filed and when it is heard by the court. See State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904, 912 (Fla.1977) (Sundberg, J., concurring). (2) Those seeking closure have the burden of producing evidence and proving by a greater weight of the evidence that closure is necessary, the presumption being that a pretrial hearing should be an open one. (3) The news media have no first amendment right to attend the pretrial hearing as long as when closure is ordered, the transcript of the hearing is made available to the news media at a specified future time, when the danger of prejudice will be dissipated (for example, after the trial jury is sequestered). (4) Where possible, the court should exclude the contents of a confession or of a wiretap, or the nature of the evidence seized, when the issues involved relate to the manner in which the prosecution obtained this material. (5) The trial judge shall make findings of fact and conclusions of law so that the reviewing court will have the benefit of his reasoning in granting or denying closure.

The decision of the District Court of Appeal is quashed and the cause is remanded with instructions to affirm the order of the trial court.

It is so ordered.

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


text:
    STATE of Florida, ex rel. Jim SMITH, Attorney General, Relator, v. Robert E. JAGGER, Public Defender of the Sixth Judicial Circuit of Florida, Respondent.
    No. 61930.
    Supreme Court of Florida.
    Dec. 16, 1982.
    Rehearing Denied March 3, 1983.
    Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for relator.
    Robert E. Jagger, Public Defender, pro se, and Carleton L. Weidemeyer and Paul Barnard, Asst. Public Defenders, Sixth Judicial Circuit, Clearwater, for respondent.
   ADKINS, Justice.

The writ of quo warranto is granted on the authority of State ex rel. Smith v. Brummer, 426 So.2d 1, (Fla.1982).

ALDERMAN, C.J., and BOYD, OVER-TON, McDONALD and EHRLICH, JJ., concur.


text:
    In re FLORIDA RULES OF PRACTICE AND PROCEDURE FOR TRAFFIC COURTS (AMENDMENT TO RULE 6.115).
    No. 62235.
    Supreme Court of Florida.
    Sept. 14, 1982.
   PER CURIAM.

The Advisory Commission to the Florida DWI School Coordination Trust Fund seeks amendments to the Traffic Court Rules in order to provide for the proper administration of the funds accumulated in the Florida DWI Schools Coordination Trust Fund being collected pursuant to section 25.387, Florida Statutes (1981). It appears that these amendments are appropriate for the proper administration of these trust funds. The Florida Rules of Practice and Procedure for Traffic Courts are hereby amended by amending rule 6.115 in the manner set forth in the attachment hereto. This amendment shall take effect immediately.

It is so ordered.

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

6.115 DWI School Coordination Trust Fund

(1) Each DWI school approved by the DWI Schools Coordinator is required to remit monthly the assessments collected pursuant to Section 25.387, Florida Statutes, to the DWI School’s Coordinator of the Supreme Court on a form provided by the Supreme Court.

(2) Each certified DWI school shall cause records and accounts to be kept in accordance with procedures prescribed by the Supreme Court. Such records and accounts will be subject to audit by the designated representative of the Supreme Court.

(3)Each DWI school shall collect the trust fund in accordance with the plan attached hereto.

Pursuant to Section 25.387, Florida Statutes, the Supreme Court hereby adopts the following plan for the implementation of the DWI Schools Coordination Trust Fund.

(1) Effective July 1, 1981, all DWI schools in the state of Florida shall assess three dollars against every individual enrolling in a DWI course at the time of enrollment, including those who transfer to or from a school in another state. Federal military employees, their dependents and retired military personnel who attend a federal military DWI school shall be subject to the assessment.

(2) In no case shall the assessment be waived.

(3) Each school shall remit on a monthly basis the assessment collected. This monthly remittance shall be forwarded at such time so as to be received by the Supreme Court by the seventh working day of the next month. The remittance shall be in the form of a check or money order payable to the State of Florida and be sent with a form entitled “DWI Schools Coordination Trust Fund — Remittance of $3.00 Additional Assessment.” See Appendix A.

(4) Each DWI school shall cause records and accounts to be kept which show the collection of each assessment and which will be subject to audit by the Supreme Court. The records of the assessments shall be in a form specified by the Supreme Court. See Appendix B.

(5) Each school shall be responsible for all costs, if any, incurred through compliance with the requirements of the fund.

(6) Each DWI school may request a $3.00 increase in the fee charged for enrollment in the DWI course, to cover the assessment. The DWI Schools Coordinator’s Office shall determine whether a change in the fee is appropriate.

(7) Monies collected by the fund shall be used by the DWI Schools Coordinator’s Office to pay for staff salaries, travel and other expenses related to the functioning of the office. The fund will also be used to pay for programs in which the coordinator’s office engages, including but not limited to, interstate reciprocity, training, certification, monitoring and technical assistance. The Supreme Court may assess the fund for reasonable costs for the administration of the fund.

(8) The DWI Schools Coordinator shall be the administrator of the fund.

APPENDIX A

COUNTY_ ACCOUNT NO-DWI SCHOOLS COORDINATION TRUST FUND REMITTANCE OF $3.00 ADDITIONAL ASSESSMENT

DATE

TO: DWI Coordination Office

Room 233; Supreme Court Building Tallahassee, FL 32301

FROM:

The attached remittance is for revenue of the DWI Coordination Schools Trust Fund (2-210-0500) for the period_to-

TOTAL NO. OF PERSONS ENROLLED -

TOTAL NO. OF PERSONS ASSESSED $3.00 -

TOTAL AMOUNT REMITTED —

By

Signature

Title

APPENDIX B

DWI SCHOOLS COORDINATION TRUST FUND LEDGER BOOK - Sample -


author: BOYD, Justice. McDONALD, Justice, OVERTON, Justice,

text:
    STATE of Florida, Petitioner, v. Nathaniel KING, Respondent.
    No. 60857.
    Supreme Court of Florida.
    Dec. 22, 1982.
    Rehearing Denied Feb. 16, 1983.
    Jim Smith, Atty. Gen., and Laura R. Morrison and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender, and Jon May and Gary Caldwell, Asst. Public Defenders, Fifteenth Judicial Circuit West Palm Beach, for respondent.
   BOYD, Justice.

This cause is before the Court on the state’s petition for review of a decision of the district court of appeal. King v. State, 425 So.2d 1379 (Fla. 4th DCA 1981). The district court certified as a question of great public importance the following:

MAY A JUVENILE WHO IS SUBJECT TO THE DIRECT FILING OF AN INFORMATION AGAINST HIM FOR A CRIME NOT PUNISHABLE BY DEATH OR LIFE IMPRISONMENT ALSO BE SUBJECTED TO THE PRESENTMENT OF AN INDICTMENT AGAINST HIM FOR LIKE CRIMES?

We have jurisdiction. Art. V, §. 3(b)(4), Fla. Const. We answer the question in the negative, finding that the provisions of chapter 39, part II, Florida Statutes (1981), Florida’s Juvenile Justice Act, enacted under the express authorization of article I, section 15(b), Florida Constitution, give individuals of a certain age group the statutory right to be treated as juveniles with certain limited exceptions. The legislature, in chapter 39, has restricted grand juries to indictment of juveniles only for those crimes punishable by death or life imprisonment or connected with a crime punishable by death or life imprisonment. Other crimes are clearly not included.

The relevant facts in the instant case are as follows. An indictment was returned by the grand jury charging respondent, Nathaniel King, with robbery and aggravated assault, crimes which respondent allegedly committed when he was seventeen years old. Respondent did not attack the indictment in the trial court. After being tried as an adult and convicted by a jury, respondent appealed his conviction to the district court of appeal, asserting for the first time that, because he was a juvenile, he could not be charged by indictment and tried as an adult under the provisions of chapter 39. The district court agreed, holding that the indictment was not proper because the crimes charged were not punishable by death or life imprisonment. The district court reversed the conviction and directed the trial court to dismiss the indictment without prejudice to allow the state attorney to proceed as required by chapter 39. Although we agree with the district court that an indictment is not the proper method of charging a juvenile with a crime not punishable by death or life imprisonment, we reverse the district court’s decision since in this case respondent waived his right not to be charged by an indictment.

The state, citing this Court’s decision in State ex rel. Latour v. Stone, 135 Fla. 816, 185 So. 729 (1939), seeks disapproval of the district court decision, asserting that an indictment may properly be used to charge any person with any crime for which an information may be filed. The state contends that the state attorney should be able to charge a juvenile offender by indictment whenever the juvenile could be charged by the filing of an information as permitted under chapter 39. We disagree, concluding that this argument is contrary to the clear legislative intent in chapter 39.

Our constitution, in article I, section 15(b), gives the legislature the authority to provide for the special treatment of juvenile offenders:

When authorized by law, a child as therein defined may be charged with a violation of law as an act of delinquency instead of crime and tried without a jury or other requirements applicable to criminal cases. Any child so charged shall, upon demand made as provided by law before a trial in a juvenile proceeding, be tried in an appropriate court as an adult. A child found delinquent shall be disciplined as provided by law.

This section has been interpreted as conferring upon a child the right to be treated as a juvenile offender in the manner provided by statute. State v. Cain, 381 So.2d 1361 (Fla.1980).

In chapter 39, the legislature has delineated four circumstances in which a juvenile may be tried as an adult and exposed to more severe adult criminal penalties. First, the child, joined by a parent or guardian, may demand trial as an adult. § 39.-02(5)(b), Fla.Stat. (1981). Second, the judge responsible for juvenile proceedings may certify a case for adult trial if the child was at least fourteen years old when he or she committed the offense, but only after the court has conducted a waiver hearing and has considered the appropriateness of adult trial according to the criteria in section 39.09(2)(c), Florida Statutes (1981). § 39.-02(5)(a), Fla.Stat. (1981). Third, the state attorney may file an information against a child who was sixteen or seventeen years old at the time of the alleged offense and may criminally prosecute the child and seek the imposition of adult sanctions should the child be convicted. § 39.04(2)(e)4, Fla.Stat. (1981). In this circumstance, if the violation charged is a misdemeanor, the child shall be treated as a juvenile if the child moves for such treatment and is able to show he has not previously committed two delinquent acts, one of which was a felony. Id. Fourth, a child may be indicted by a grand jury for any crime punishable by death or life imprisonment and. any other violation which is based on the same transaction or connected with the offense punishable by death or life imprisonment. § 39.02(5)(c), Fla.Stat. (1981). When so charged, the juvenile shall be tried and treated as an adult. Id.

The legislature, in granting to children the right to be treated differently from adults, has expressly provided that children may be tried as adults and exposed to adult sanctions in the circumstances delineated above. From our review of chapter 39, we can find no indication that the legislature intended to allow the indictment of a sixteen- or seventeen-year-old juvenile as an alternative to the filing of a direct information. The provisions of section 39.04(2)(e)5, Florida Statutes (1981), allowing the state attorney to refer the case of a juvenile to a grand jury, must be read together with section 39.02(5)(c), which limits the crimes for which a juvenile may be indicted by the grand jury to capital or life felonies and, since October, 1981, to connected offenses.

Thus we hold that a juvenile charged with an offense not punishable by death or life imprisonment has a right not to be charged by an indictment. However, this right, as with all other rights, may be waived if not asserted in a timely and proper fashion. The second issue raised by the state in this case is whether a juvenile must assert his right not to be tried by an indictment at the trial level or whether he can assert that right for the first time on appeal. The answer to this question depends on whether the error committed is a fundamental error affecting the court’s jurisdiction thereby rendering its judgment void.

This Court has long recognized a distinction between judgments that are void and those that are voidable. Objections to a void judgment can be raised at any time, whereas objections to a voidable judgment must be timely made. Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926). “If the court has acquired jurisdiction of the subject-matter and of the parties, the judgment or decree entered is binding, even though erroneous because of irregularity of procedure, and such judgment or decree will not be set aside, reversed, or modified, except by appropriate direct appellate procedure.” 91 Fla. at 720, 109 So. at 682. If a court has jurisdiction of the subject matter and of the parties, the proceeding is not a nullity and the judgment is not void.

In this case the trial court had jurisdiction of the subject matter and of the parties. It had jurisdiction of the subject matter because it is a circuit court which has jurisdiction of all felonies. § 26.-012(2)(d), Fla.Stat. (1981). As for any objections King may have had as to the court’s jurisdiction over his person, he waived them by appearing in person and defending his case. Haddock v. State, 129 Fla. 701, 176 So. 782 (1937); Tillman v. State, 58 Fla. 113, 50 So. 675 (1909).

The situation in Haddock is quite analogous to the one in this case. In Haddock the defendant appealed his conviction entered by the criminal court of record, complaining that the court lacked jurisdiction because the statutory procedures for transferring his case from the circuit court to the criminal court of record were not properly followed. This Court affirmed the conviction, noting that the defendant had waived any right to question the criminal court of record’s jurisdiction by appearing before the court and defending his case without objecting to the court’s jurisdiction until after judgment. Similarly, respondent waived any objections he may have had about his case not being transferred properly to the criminal division of the circuit court by the filing of the information. Cf. State v. Goodson, 403 So.2d 1337 (Fla.1981) (the filing of an information acts as a transfer to the criminal division for purposes of invoking section 958.04(l)(a) of the Youthful Offender Act).

There is good reason for requiring defendants to register their objections with the trial court. A defendant should not be allowed to subject himself to a court’s jurisdiction and defend his case in hope of an acquittal and then, if convicted, challenge the court’s jurisdiction on the basis of a defect that could have been easily remedied if it had been brought to the court’s attention earlier. Neither the common law nor our statutes favor allowing a defendant to use the resources of the court and then wait until the last minute to unravel the whole proceeding. Sawyer v. State, 94 Fla. 60, 113 So. 736 (1927). In this case, if the court had realized that respondent had been improperly charged by an indictment, the defect could have been remedied quite easily by the filing of an information under section 39.04(2)(e)4, or the transfer of the case to the juvenile division.

We therefore quash the decision of the district court of appeal and remand with instructions that the trial court’s final judgment be reinstated.

It is so ordered.

ALDERMAN, C.J., and ADKINS and EHRLICH, JJ., concur.

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

OVERTON, J., dissents with an opinion.

McDONALD, Justice,

concurring in part/dissenting in part.

I concur in the opinion insofar as it addresses the issue of waiver and that King’s conviction was proper. I disagree with the conclusion that a juvenile cannot be tried as an adult upon an indictment.

I would hold that an indictment, concurred in by the state attorney, has the same effect as an information filed by the state attorney for the purpose of proceeding in the adult division of the circuit court. The state attorney shall prepare grand jury indictments. § 27.03, Fla.Stat. (1979). He signed the indictment in this cause and prosecuted under it. It had the same essential allegations that an information would have and clearly demonstrated the exercise of the state attorney’s discretion to try the defendant as an adult. This prosecution was clearly within the contemplation of, and authorized by, the legislature when it enacted section 39.04(2)(e)4, Florida Statutes.

OVERTON, Justice,

dissenting.

I find I must dissent because under the law this silent record cannot support a finding that the petitioner waived his substantive right to be treated as a juvenile.

Although, in my view, the petitioner was not prejudiced and should not be entitled to a second bite of the apple, the decisions of the United States Supreme Court are very clear that any waiver of a substantive right must be intelligently and knowingly made, and a waiver will not be presumed from a silent record or from the failure of counsel to act. See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Boyd v. Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755 (1972); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Lack of prejudice is not a controlling factor and, under the principles set forth in these cases, there was no valid waiver in the instant case.

I fully agree with the law as stated by the majority concerning the existence of the substantive right of children to be treated differently from adults, as authorized by article I, section 15(b), Florida Constitution, and as implemented by chapter 39, Florida Statutes (1981). I also agree that petitioner could have been charged as an adult by information under section 39.-04(2)(e)(4), Florida Statutes (1981), and that, under those circumstances, adult treatment and sentence could validly have been imposed. But a juvenile charged by information is provided an opportunity, by section 39.04(2)(e)(4), to receive treatment as a child. This is not the case when a juvenile is charged by indictment since there is no statutory authorization for this type of sentencing process.

Although I believe that the result reached by the majority is just, I must conclude there was no constitutionally valid waiver of this substantive right, and the law, as it now exists, requires a reversal.

      . The limitation on a motion for juvenile treatment to cases where a misdemeanor is charged was added by chapter 81-218, section 6, Laws of Florida, and became effective July 1, 1981. Prior to this amendment of section 39.04(2)(e)4, a child charged under that section’s provisions with any criminal offense could move for treatment as a juvenile.

      . Chapter 81-269, section 1, Laws of Florida, amended section 39.02(5)(c), effective October 1, 1981, to allow the inclusion of connected offenses in the indictment charging a juvenile with a capital or life felony. This section had previously authorized the use of an indictment only for the capital or life felony. See Robidoux v. Coker, 383 So.2d 719 (Fla. 4th DC A 1980).