author: DeCARLO, Judge.

text:
    James Leroy PRICE v. STATE.
    5 Div. 463.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.

      Larkin Radney, Alexander City, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

James Leroy Price was indicted by the Coosa County Grand Jury on a two-count indictment charging rape, and carnal knowledge of a girl over twelve, but under sixteen years of age.

At arraignment, he was represented by an attorney of his choice and pleaded not guilty. The trial was held before a jury, and the appellant was tried only on the carnal knowledge count. He was found guilty as charged in the indictment and was sentenced to imprisonment in the penitentiary for two years.

The sufficiency of the evidence is not raised on this appeal. Only a brief recitation of the facts will be given.

The evidence presented by the State showed that the prosecutrix was a fifteen-year-old who resided in Goodwater, Alabama, with her father [the appellant], her stepmother and several brothers and sisters. While her stepmother, her sisters, and she were visiting her grandmother on July 23, 1978, the stepmother was informed by the prosecutrix that the appellant had forced her to have sexual relations with him. According to the prosecutrix’s testimony, she did not remember the exact date of the incident, but the act occurred about two weeks before a trip to South Carolina. She recalled that her father was teaching her to drive at the time and that he drove to a road near Goodwater and parked. The witness stated that her father told her to get out of. the truck, and she testified that:

“I got out of the truck and I went around on the side of the truck, around on the driver’s side, and my daddy came over there and he started taking off my pants and he was pulling my clothes down and I was crying, because I knew what was going to happen.
“Q. How did you know what would happen, Pam?
“A. Because it had happened before. My daddy pulled down my clothes and we got in the truck, he put me up there, and I was trying to push him away and he just kept forcing me to get in the truck and, when I got in the truck, my daddy tried to have sexual intercourse with me and I was crying and he just kept trying and I was upset and he did.”

The prosecutrix recalled that her father first attempted to have sex with her when she was fourteen years old. On that occasion, she had the flu, and her mother and the rest of the family had gone to church. According to the prosecutrix, “[M]y daddy stayed home and I was in bed and I was real sick and my daddy came in there and brought some medicine to me and he tried to do that then, but it didn’t happen.”

Further, she testified that, prior to the incident in July, 1978, her father had forced her to have sexual relations with him on at least ten occasions.

Doctor John James testified that, on July 25, 1978, he gave the prosecutrix a general physical examination, including a pelvic examination. He stated that his examination revealed “a marital introitus” which was consistent with repeated intercourse.

The appellant did not testify in his own behalf.

I

The appellant maintains that the trial court erred in. granting the State’s challenge for cause of juror Robert Wayne Thomas. The testimony regarding disqualification of this juror is found in the following portion of the record:

“(Whereupon, following qualification of the jury venire, voir dire questions were asked by counsel, for both sides, during which time, the following proceedings, among others, were had and done:)
“MR. FRANK TEEL: Are any of you presently being represented on any matter, any legal matter, by Mr. Larkin Rad-ney or the attorney that is in the office with him, Mr. Scears Barnes? Mr. Barnes was here in the courtroom just a few minutes ago.
“MR. ROBERT WAYNE THOMAS: (The juror raises his hand.) Mr. Radney.
“MR. FRANK TEEL: Is Mr. Radney presently representing you, Mr. Thomas?
“MR. ROBERT WAYNE THOMAS: In a May action, yes, sir.
“MR. FRANK TEEL: And he is your attorney at this time in that case?
“MR. ROBERT WAYNE THOMAS: Yes, sir.
“MR. FRANK TEEL: Your Honor, we would ask that Mr. Thomas be struck for cause, since Mr. Radney is representing him at this time as an attorney.
“MR. LARKIN RADNEY: That in itself does not show any prejudice.
“THE COURT: What kind of representation do you have, what is the contract?
“MR. LARKIN RADNEY: It is a fender bender, I’m defending him on a claim and I’m defending him on a claim and I’ve got a cross-claim.
“THE COURT: Is it on a percentage basis?
“MR. LARKIN RADNEY: Yes, sir.
“THE COURT:. In other words, you are financially interested, personally, in the outcome of this particular juror’s lawsuit?
“MR. LARKIN RADNEY: Yes, sir.
“MR. WILLIAM R. HILL: Your Honor, this would be similar to a partnership.
“THE COURT: I sustain the objection and challenge for cause.
“MR. LARKIN RADNEY: Note my objection.
“MR. WILLIAM R. HILL: May the record reflect the number of jurors present, Your Honor?
“THE COURT: Sixty jurors present in the courtroom on the jury venire.
“MR. LARKIN RADNEY: Please note my objection for the record.”

The Alabama Supreme Court, in Brown v. Woolverton, 219 Ala. 112, 121 So. 404, addressed the issue in question and stated:

“To justify a challenge for principal cause there must be a statutory ground, or some matter which imports absolute bias or favor, and leaves nothing for the discretion of the court. . . . ‘Competency under a statute (or for principal cause at common law) is a question of law, but in other cases is a question of fact, or a mixed question of law and fact, to be determined by the trial court in the exercise of a sound discretion, and its decision will not be interfered with, unless clearly shown to have been abused.’ ” [Citations omitted.]

Addressing the issue of the disqualification of prospective jurors on a challenge for cause, the Supreme Court in Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391, said:

“The test to be applied has been stated to be that of probable prejudice. Probable prejudice for any reason disqualifies a prospective juror.”

The trial court’s disqualification of a venireman on a challenge based on bias is entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion. Motes v. State, Ala.Cr.App., 356 So.2d 712.

The Supreme Court of Indiana in Klinck v. State, 203 Ind. 647, 179 N.E. 549, stated, “In order that a challenge for cause may be sustained on the ground of bias implied from the relation of attorney and client between an attorney for the defendant or for the state and the prospective juror it is necessary that such relation shall exist at the time of the trial in question.” The court explained that it was not sufficient to show that the attorney on previous occasions had represented the prospective juror, if, at the time of trial, the relationship of attorney and client had ceased to exist. In Klinck v. State, supra, it did not appear to the court that the relation of attorney and client existed between the prosecuting attorney and the prospective juror at the time of trial. The court said:

“This is not sufficient to create a conclusive presumption of implied bias which, in law, would disqualify the juror. It, therefore, was a question for determination of the trial court whether the juror was in fact ‘biased or prejudiced for or against the defendant.’ ”

In Frank v. United States, 9 Cir., 59 F.2d 670, an appeal from a murder conviction in Alaska, the Ninth Circuit held that the trial court did not err in excusing a prospective juror where it was shown that the relation of attorney and client existed between defense counsel and the prospective juror. Also, in Christiancy v. State, 106 Nebraska, 822, 184 N.W. 948, an appeal from a conviction of statutory rape, the Nebraska Supreme Court held that the sustaining of the State’s challenge to a prospective juror was not error where the evidence showed that the prospective juror had a case pending in which defense counsel was his attorney. The court added that the juror was so closely connected with the defendant’s counsel that the juror’s ability to act impartially was open to question.

In the present case, the voir dire examination of the prospective juror and defense counsel indicated that defense counsel was representing the prospective juror at the time of appellant’s trial. Further, the testimony of appellant’s trial attorney showed that the representation was a contractual matter “on a percentage basis.” Also, the defense attorney acknowledged to the court that he was “financially interested, personally, in the outcome of this particular juror’s lawsuit.”

These facts indicated a “probable prejudice” or “implied bias” on the part of the prospective juror because of the attorney’s contractual employment and because of their mutual pecuniary interest in the outcome of the prospective juror’s case. Due to this monetary connection with defendant’s counsel, the prospective juror’s ability to act impartially and indifferently was improbable. Further, had there been testimony to indicate that the defense attorney’s representation of the prospective juror was not ongoing at the time of the appellant’s trial, then it would have been a question for the trial court to determine whether the juror was in fact biased or prejudiced for, or against the defendant. See Klinck v. State, supra.

The appellant, in support of his contention has cited Brown v. Woolverton, supra and Albright and Wood, Inc. v. Wallace, 274 Ala. 317, 148 So.2d 240. Each of these cases can be distinguished from the present case. In both, Brown, supra, and Albright and Wood, Inc., supra, the representations by the defense attorneys were of the firms with which the prospective jurors were connected. No personal representations of the prospective jurors themselves were involved. However, in the present case, the prospective juror was represented, personally, by the defense attorney. Under these facts, it was not error to excuse the prospective juror, and the challenge for cause was proper. See Zuck v. Alabama, 588 F.2d 436 (5th Cir. 1979).

II

The appellant contends that the trial court committed reversible error when it allowed the prosecuting witness to testify to another’s unexpressed intent or motive. This particular issue involved the testimony of the prosecuting witness as concerning the reason she delayed complaining to her stepmother about the. father’s advances. The record concerning this issue reads, in pertinent part, as follows:

“Q. Pam, why hadn’t you told your mother about this before?
“MR. RADNEY: I object to that, it would be mental operation.
“MR. HILL: Your' Honor, I think this clearly comes under the part of the evidence, I think, under Star and Star .
“THE COURT: I overrule the objection, you may state your answer.
“MR. RADNEY: Please note my exception.
“Q. Would you answer my question, please?
“A. Because I loved my stepmother and I didn’t want her to be hurt, because I never knew my real mother and I was afraid that if she got hurt that they would get a divorce and I would lose her too. And my daddy told me, that if I told her, that she would do something about it or say something about it so, I didn’t.”

The transcript of evidence reflected that, for approximately a period of a year, the father of the prosecutrix had forced her to have sexual relations with him on at least ten occasions. All of these incidents occurred during the time she was fourteen years of age, and none of these incidents had been reported until July 23, 1978. At that time, she had made a complaint to her stepmother. The reason why the victim had not made a timely complaint on an offense which had continued for approximately a year was material to the case. The Supreme Court of Alabama in Starr v. Starr, 293 Ala. 204, 301 So.2d 78, stated: “[A] witness, on direct examination, may testify as to his intention, motive or other physically unexpressed mental state, provided that the testimony is material to the issues in the case.”

Under the facts in this case, the reason why a timely complaint had not been lodged was a material fact about which the State could inquire. The victim’s testimony indicates the reason why a timely complaint was not made. Under Starr v. Starr, supra, this testimony was admissible to show the prosecutrix’s mental operation.

No error has been found in the record, therefore, the judgment of conviction by the Coosa Circuit Court is due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex parte James Leroy PRICE. (Re James Leroy PRICE v. STATE of Alabama).
    No. 79-501.
    Supreme Court of Alabama.
    May 30, 1980.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: BOOKOUT, Judge. DeCARLO, Judge,

text:
    Calvin WHITE v. STATE.
    5 Div. 469.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.

      Richard D. Lane, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Buying, receiving and concealing stolen property; sentence: five years imprisonment.

On April 81, 1979, Lee James Jones cashed his Social Security check for $185 and placed the proceeds in his billfold. Later that same day the appellant and a female companion came into Mr. Jones’ house.

According to Mr. Jones, as he was preparing to feed his cat, the female got behind him, grabbed his billfold, and tossed it to the appellant. Appellant and the girl then ran from the house and were subsequently arrested.

By motion to exclude the State’s evidence and by motion for new trial, appellant’s counsel presented to the trial court the argument that since the evidence showed that appellant was an accomplice to a larceny he could not lawfully be convicted of receiving the same goods he had helped to steal.

The trial court denied both motions.

It is a well recognized rule of law that a person who actually steals property cannot be convicted of buying, receiving, concealing or aiding in the concealment of the property stolen. Annot., 136 A.L.R. 1087 (1942); Blackburn v. State, Ala.Cr.App., 372 So.2d 908 (1979); Nicholson v. State, Ala.Cr.App., 369 So.2d 304 (1979); Gallman v. State, 29 Ala.App. 264, 195 So. 768 (1940). The reason for the rule stems from the logical impossibility for the thief to receive stolen property from himself. Davidson v. State, Ala.Cr.App., 360 So.2d 728, cert. denied, Ala., 360 So.2d 731 (1978).

When the one accused of receiving stolen property is not the actual thief, but merely a participant or accomplice to the theft, authorities differ on whether the accused may be convicted.

“. . . The crime of larceny and that of receiving stolen property being distinct and separate offenses, it becomes necessary for the courts to determine whether participation in the larceny by one accused of receiving the goods is of such character and extent as to make the receiving a part of the theft itself, or whether the receiving is, under the circumstances, so distinct as to constitute the separate offense defined by the statute as receiving. . . . ”
Annot., 136 A.L.R. at 1093

Compare Metcalf v. State, 98 Fla. 457, 124 So. 427 (1929), and Reg. v. Hilton, Bell C.C. 20, 169 Eng.Rep. 1150 (1858), with Snider v. State, 119 Tex.Cr.R. 635, 44 S.W.2d 997 (1931), and Reg. v. Perkins, 2 Den.C.C. 459, 169 Eng.Rep. 582 (1852).

Alabama follows the rule that:

“ ‘. . . where one steals goods under such circumstances that the receiving thereof is a part of the theft itself, he cannot be convicted of receiving the stolen goods. Likewise, one who has stolen property jointly with another, that is to say, who jointly with another takes part in the caption and asportation of the property, cannot properly be convicted of receiving stolen property . . .

Scott v. State, Ala., 374 So.2d 316, 318 (1979), quoting with approval 76 C.J.S. Receiving Stolen Goods § 14(b); Stoudemire v. State, Ala.Cr.App., 365 So.2d 376 (1978); Mefford v. State, Ala.Cr.App., 363 So.2d 1050 (1978).

In Scott v. State, supra, the appellant participated in the theft of clothing from a department store. While appellant and two other young men used their bodies as a screen, another young man took clothing off a rack and concealed it in his pants. Subsequently, the merchandise was concealed in the appellant’s car. The Alabama Supreme Court held that the appellant could not be found guilty of buying, receiving, etc., stolen property because he assisted the actual thief in the caption and asportation of the goods.

In Stoudemire v. State, supra, the appellant stood on a street corner apparently acting as a lookout while his companion used a wire coat hanger to gain access to a parked car. Appellant’s companion removed two items from the car, and both men then left the scene. Appellant was thereafter charged in a two count indictment with grand larceny and buying, receiving, concealing, etc., stolen property. In holding that the buying, receiving, etc., count could not be sustained by the evidence, we stated at 379:

“. . . While the evidence did not show that appellant, James Stoudemire, actually broke into Robert Brannon’s car and took the money box and pistol, it did tend to show that he was present and ready to render aid and assistance. He is therefore equally guilty with the one who did the act. Goodman v. State, 52 Ala.App. 265, 291 So.2d 358.”

Appellant’s role under the facts of the present case was clearly that of an active participant in the caption and aspor-tation of Lee James Jones’ billfold.

“. . . When the thief steals the goods and carries them to the defendant who continues the asportation, such continuation of asportation prevents the defendant from being a receiver of the goods. The nonliability of the thief and of such a principal ... is based upon the desire to avoid inflicting a double penalty on the wrongdoer; or .upon the philosophical consideration that the receiving of the property must be subsequent to the larceny and not part of it, or that a single act may not constitute both the larceny and the receiving.” (Footnotes omitted.) 2 R. Anderson, Wharton's Criminal Law and Procedure, § 576 (1957).

Therefore, when appellant’s counsel correctly raised, via his motion to exclude and motion for new trial, the issue of the insufficiency of the State’s evidence to prove buying, receiving, concealing, etc., stolen property, the trial court should have granted his motions.

Since the State’s evidence was legally insufficient to sustain the jury’s verdict of guilty on authority of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Nicholson v. State, supra, we must reverse and render this cause. However, this is not to say that the appellant cannot be indicted and tried for the larceny. Gallman, supra.

We therefore pretermit discussion of appellant’s other allegations of error.

REVERSED AND RENDERED.

HARRIS, P. J., and TYSON and BOWEN, JJ., concur.

DeCARLO, J., dissents.

DeCARLO, Judge,

dissenting.

The majority opinion reasons that Calvin White was “an active participant in the caption and asportation” of Jones’ billfold. I do' not agree.

The facts, according to the victim, show that the girl, “Toots,” took the wallet from Jones and then “threw it to him [the appellant] he caught it and ran out the door.” Further, the witness said that “she ran right behind him and I couldn’t catch them.”

The testimony of the only eyewitness, Dave Harper, was that he saw the girl get the pocketbook and give it to the appellant, and that he “put it down in his bosom.” Further, Harper testified that White then ran outside and stood in the yard. On cross-examination, Harper stated that the appellant remained in the yard until the police came. He acknowledged that, in his presence, Calvin White was searched and there was no wallet found on him. Harper explained, “He shoved it down there when he got it to tell the truth,” meaning down the front of his pants.

The facts in the present case are clearly distinguishable from those in Scott v. State, supra, and Stoudemire v. State, supra. In Scott, the appellant was acting as a shield to prevent anyone from detecting his confederate taking clothing from the racks. In Stoudemire, the appellant acted as a lookout. Each of these illustrate active participation by the appellant.

Regina v. Hilton, supra, has been cited in the majority opinion. In that case we find the following:

“On the occasion in question Elizabeth Hilton was walking by the side of the prosecutrix and Joseph M’Evin was seen just previously following behind her. The prosecutrix felt a tug at her pocket, found her purse was gone, and on looking round saw Elizabeth Hilton behind her walking with Joseph M’Evin in the opposite direction, and saw her hand something to Joseph M’Evin;
“Pollock C. B. As to the second objection, the learned Recorder told the jury that if they did not think from the evidence that M’Evin was participating in the actual theft, it was open to them on the facts to find a verdict of guilty on the count for receiving. That direction substantially is that, if the jury should think the taking the purse was the common act of the two prisoners, they might convict M’Evin of stealing; but if they did not think that he was participating in the actual theft they might find him guilty of receiving. If the jury had found a common purpose, no doubt the stealing would have been the act of both; but they - did not so find; and I think the direction of the learned Recorder was quite right.”

In Whiting v. State, 48 Ohio St. 220, 27 N.E. 96, the Ohio Supreme Court also ruled that the jury, should determine whether the evidence shows the appellant is guilty of larceny or of receiving stolen goods.

The applicable rule followed in Alabama and found in Scott v. State, supra, has been quoted in the majority opinion. According to this rule, in order for a conviction for larceny to be sustained in the present case, the jury would have had to find “such circumstances that the receiving thereof is a part of the theft itself.” However, the jury apparently did not find “such circumstances” from the evidence presented and were justified in their conclusion. In Scott, supra, and Stoudemire, supra, there was evidence to show that the appellants and the actual thieves were engaged from the beginning in “a common purpose” to steal. However, in the present case, there was no evidence conclusively showing that a “common purpose” was shared by the appellant and the actual thief.

In our present case, the receiving of the wallet by White was after the larceny had been completed, i. e., after the wallet had been removed from Jones’ pocket. There is no evidence to indicate that Calvin White participated in the caption and asportation. Only the girl, “Toots,” perpetrated the acts of caption and asportation. True, White was there, but it was a question for the jury to determine whether he was an aider and abettor or the receiver of stolen goods. Regina Hilton, supra; Whiting v. State, supra.

In order to accept the reasoning of the majority it must be concluded that the jury would have assumed that White was an aider and abettor of the larceny of the wallet. However, it could be said that the jury had doubts as to White’s participation as an aider and abettor, but believed he did feloniously receive the wallet.

The law in Alabama is clear that one who commits larceny cannot be adjudged guilty of receiving the thing stolen. However, there is no reason “why a confederate of a thief may not be guilty of both receiving and concealing the property which the latter has stolen.” Adams v. State, 60 Fla. 1, 53 So. 451; Metcalf v. State, supra.

In the present case, the larceny of the wallet from Jones had been completed when the wallet was removed from his pocket and was then asportated by being thrown to White. At that point, the larceny was ended, and the fact that White caught the wallet and ran from the house does not make the reception of the wallet a part of the larceny in fact.

For these reasons, I respectfully dissent.


text:
    Ex parte State of Alabama ex rel. Attorney General. (Re Calvin WHITE v. STATE of Alabama).
    No. 79-487.
    Supreme Court of Alabama.
    May 30, 1980.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Horace Lee GRAHAM v. STATE.
    6 Div. 93.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied April 1, 1980.

      Roger A. Brown and Russell T. McDonald, Jr. of McDonald, Brown & Tipler, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

The Jefferson County Grand Jury indicted Horace Lee Graham for first degree murder and charged him with killing Evelyn Williams Graham by “shooting her with a pistol and a shotgun.”

At arraignment, the appellant pleaded not guilty and not guilty by reason of insanity. A jury found him guilty of murder in the first degree and fixed his punishment at life imprisonment. An appeal was taken on the day of sentencing, and the case is now before this court for review.

The facts in this case are not contested. About 9:00 A.M. on December 9, 1977, the victim, Evelyn Williams Graham, was riding with her'brother, John Catlin, when they stopped in front of the Jefferson County Courthouse in Birmingham, Alabama. Subsequently, the- appellant, who had followed his former wife, stopped his vehicle, got out, walked to the passenger side of the car in which his former wife was sitting, and fired several rounds from a handgun and a shotgun. The shots severely wounded Catlin and killed Mrs. Graham.

During the trial, the victim’s mother, Johnnie Mae Williams, testified that “somewhere close to Thanksgiving” she heard the appellant talking to her daughter. In the telephone conversation, the appellant said that “he was going to get” Evelyn Williams Graham “in the courthouse” and that he would get away with it by pleading insanity.

John Lee Catlin testified that the victim was his sister and that he had known the appellant, his former brother-in-law, for seven or eight years. He said that he and his sister had been followed by the appellant from Catlin’s house to the courthouse. The witness stated that his sister got out of the car, screamed, then jumped back into the car. At that point, he saw the appellant walk to the side of the car with a shotgun. Catlin said that the appellant fired about four shots into the car. After one shot hit Catlin in the back, the appellant kept on shooting. Further, Catlin testified that, in his opinion, the appellant was of sound mind on December 9, 1977.

The evidence presented by the defense consisted of expert testimony of Dr. Thomas Smith, Jr., a psychiatrist, and expert testimony of Dr. Edwin Segar, a clinical psychologist at Bryce Hospital. These expert witnesses were members of the Forensic Evaluation Board of Bryce Hospital who evaluated the appellant and found him to be insane at the time of the offense. Dr. Smith stated that he had observed the appellant on sixteen separate occasions over a period of one year. Dr. Segar said that he had seen the appellant “practically daily” over a year’s time. Both experts testified that the appellant was insane at the time of the shooting.

I

The appellant complains that the trial court abused its discretion during voir dire examination of the jury when the court refused to allow the defense attorney to ask the jury panel further questions. The appellant argues that the prosecution was permitted to examine the venire on two occasions and that it was improper for the court not to permit the appellant to question the venire a second time.

The pertinent part of the record which shows the incident in question reads as follows:

“MR. RUSSELL: A psychiatrist is a medical doctor who specializes in psychiatry, as you well know. The fact that there will be psychiatrists testifying in this case, could you weigh their testimony as you could weigh all other parties’ testimony and take-the instructions from the Court in the subject?
“JUROR DAVIS: I believe I could, although I don’t know what the law is.
“MR. RUSSELL: Due to the fact that you are a physician and these people are psychiatrists and physicians, would you give any more credence to their testimony thán you would a lay witness’ testimony?
“MR. McDONALD: We object to the form of that question. It’s a different type of testimony, Judge.
“THE COURT: That is expert testimony as opposed to lay witness testimony and he would be authorized to do that.
“MR. RUSSELL: All right. If a lay witness testified that in his opinion the defendant was not insane and a psychiatrist testified that in his opinion the defendant was insane, both parties and both testimonies being brought to you, would you give more credence to the psychiatrist’s testimony than you would to the lay witness’ testimony?
“MR. McDONALD: We object to the question, may it please the Court.
“THE COURT: I’ll let him ask it.
“JUROR DAVIS: Yes, I would.
“(Thereupon, Mr. Russell asked no further questions of the jury venire on voir dire, behalf of the State, after which the following proceedings were then had and done:)
“MR. McDONALD: May I ask one more question?
“THE COURT: No, sir.”

As can be seen from this quoted portion of the record, no objection was made to the trial court’s ruling, nor was there an adverse ruling made by the trial judge. Under these circumstances, no legal issue is preserved for appellate review. Connor v. State, 52 Ala.App. 82, 289 So.2d 650; Jackson v. State, 260 Ala. 641, 71 So.2d 825; Irons v. State, 42 Ala.App. 349, 165 So.2d 125.

We recognize, as the appellant has recognized in brief, that the voir dire examination of veniremen is within sound discretion of the trial court. However, although we have not reached the question concerning whether or not this was an abuse of discretion due to the fact that no timely objection has been made, we hasten to comment that without some showing that the question was repetitive, argumentative, or immaterial the defense attorney’s request should have been granted.

II

At the close of the testimony by the defense and upon conclusion of the case, the appellant moved for a directed verdict on the grounds “that the evidence is overwhelming and uncontradicted.” In support of this motion, he cited to the trial court Herbert v. State, Ala.Cr.App., 357 So.2d 683, and Christian v. State, Ala.Cr.App., 351 So.2d 623.

In Herbert, supra, lay witnesses and expert witnesses testified that the appellant was insane at the time of the crime. However, as this court pointed out in Herbert, the jury had no facts from which it could draw an inference that the appellant was in fact sane.

In Christian, supra, three psychiatrists testified that Christian was insane at the time of the homicide. Further, there was testimony covering appellant’s history of mental disorders and covering appellant’s having been admitted into the Bryce mental hospital on several occasions prior to the homicide. No testimony was shown which would in any way contradict the testimony of insanity.

The question of insanity at the time of the commission of the crime is for the determination of the. jury. Carr v. State, 43 Ala.App. 642, 198 So.2d 791; Hawkins v. State, 267 Ala. 518, 103 So.2d 158. The jury, in determining this question, may reject expert testimony of insanity even though it is without conflict. Hockenberry v. State, 246 Ala. 369, 20 So.2d 533; George v. State, 240 Ala. 632, 200 So. 602. However, in Christian, supra, the Alabama Supreme Court stated that a jury may not arbitrarily ignore the testimony of experts on the question of insanity. The court said that, although great weight must be given to a jury’s verdict after they have considered a matter involving a plea of insanity, there is an exception where the proof of insanity is overwhelming and uncontradict-ed.

In the present pase, two expert witnesses and the appellant’s former brother-in-law, Catlin, testified regarding the state of mind of appellant at the time of the shooting. Catlin testified that he had known the appellant for seven or eight years, and it was Catlin’s opinion that, at the time of the shooting, the appellant was of sound mind. The present case, unlike Herbert and Christian, does contain some evidence that contradicts the testimony alleging the appellant’s insanity. The evidence of insanity in the present case was not overwhelming and did not overcome the presumption of sanity. Under these facts, it is our judgment that the jury verdict was not contrary to the preponderance of evidence and that the case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Horace Lee GRAHAM. (Re Horace Lee Graham v. State of Alabama).
    79-527.
    Supreme Court of Alabama.
    May 30, 1980.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge.

text:
    Terry Lewayne HOLT v. STATE.
    8 Div. 253.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied April 1, 1980.

      Wesley M. Lavender, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for first degree burglary. Sentence was ten years and six months in the state penitentiary.

The only issue on appeal is whether the testimony of two accomplices was corroborated by other evidence tending to connect the defendant with the commission of the crime as required by Alabama Code 1975, Section 12-21-222.

On the night of June 7, 1978, William J. Perkins went to bed in his home in Colbert County around 9:30. His wife came home from their business, Bill’s Seafood and Paradise Motel, sometime after twelve midnight. Sometime after this, Mr. Perkins awoke “in a daze” and realized that he had been struck on the head and that he and his wife were being robbed by “two guys” whom he did not recognize. Discovered missing after the robbery were three diamond rings,, their wallets, three credit cards and a substantial sum of money, among other items.

Donnie Golden and Larry Mott testified for the State. Each had pled guilty and been convicted for “the offense of robbery of the Perkins’ house”. Although their testimony was not identical and even conflicting on at least one point, the import of their testimony was that they went to the Perkins’ home on the night of June 7th and waited outside while the defendant burglarized the house.

Later that night, Golden and Mott, without the defendant, returned to the house and robbed Mr. and Mrs. Perkins. Golden and Mott denied that they had taken any diamond rings or credit cards during the robbery.

The testimony of Golden and Mott was mainly, though not solely, corroborated by Gary Alexander. A convicted felon, Alexander testified that in “late June” the defendant gave him three credit cards which the defendant said calme, “the way he put it, (from) the robbery he had planned out”. These were the identical credit cards taken on the night of June 7th from Mr. Perkins. Alexander denied having anything to do with the robbery and there is nothing in the record to indicate otherwise.

The law governing accomplices and corroboration has been stated and discussed by this Court in a number of recent eases. Andrews v. State, 370 So.2d 320 (Ala.Cr.App.), cert. denied, 370 So.2d 323.(Ala.1979); Flanagan v. State, 369 So.2d 46 (Ala.Cr.App.1979); Jacks v. State, 364 So.2d 397 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978). These rules need not be restated here.

Under the evidence, including the admissions of Golden and Mott, it is clear that they were accomplices to the initial breaking and entering and stealing by the defendant. Jacks, 364 So.2d at 403. However, evidence of the defendant’s possession of property stolen at the time of the offense may be sufficient to corroborate an accomplice’s testimony. Andrews v. State, 370 So.2d 320, 322 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979). Here, the evidence that the defendant was in recent possession of the same three credit cards taken on the night of June 7th is sufficient corroboration of the testimony of the accomplices Golden and Mott.

There was additional evidence to corroborate the testimony of the accomplices. We have omitted that evidence from this opinion because these circumstances were not as strong and clear as the credit card testimony and because the credit card testimony is, of itself, sufficient corroboration.

The defendant’s argument that Alexander’s testimony “is unworthy of belief because of the bias and prejudice of the witness and because of the inconsistencies in the testimony of Golden and Mott” is simply a matter which was solely for the jury. Stokley v. State, 254 Ala. 534, 540, 49 So.2d 284 (1951). The fact that the defendant was convicted upon the testimony of admitted liars, felons and thieves was a matter to be considered by the jury in determining the defendant’s guilt or innocence.

We have responded to the arguments raised by the defendant. After searching the record for error, we affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Terry Lewayne HOLT. (Re Terry Lewayne Holt v. State of Alabama).
    79-525.
    Supreme Court of Alabama.
    May 30, 1980.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Ray Anthony RAGLAND v. STATE.
    7 Div. 713.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.

      Walter J. Merrill, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Montgomery, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the first degree murder of fourteen year old William Harris. Sentence was life imprisonment. At trial the defendant was represented by retained counsel. The defendant was well represented on appeal by different counsel appointed by the court.

I

At trial, the defendant challenged the sufficiency of the evidence by a motion to exclude and a written request for the affirmative charge. Both were properly refused.

On Sunday morning, May 20, 1979, the defendant’s wife, Lenora Ragland, sent her brother, Roland Safford, and his friend, William Harris, to look for the defendant and ask him for her “flip-flops.” The two boys found the defendant with some of his friends and an argument ensued. The boys left and returned to the defendant’s home.

Safford testified that a short time later he saw the defendant standing outside the apartment and saw him shoot into the apartment. The single shot struck and killed Harris.

The defendant turned himself in to the police. When Safford saw the defendant at City Hall, Safford stated that the defendant told him, “I meant to kill both of you son of bitches.”

The defendant testified in his own behalf and stated that he intended to kill Safford when he deliberately fired his pistol into the apartment. Although there was some evidence that Safford had a pistol and threatened the defendant, there is no evidence that would justify a finding that the defendant acted in self-defense.

From this brief statement of the facts it can be observed that there was sufficient evidence from which the jury could find the defendant guilty of murder in the first degree.

II

The trial judge did not err in admitting the defendant’s confession into evidence. During the hearing out of the presence of the jury, Captain Remer was not questioned on whether or not anyone in his presence made any inducement, offered any reward or any type of promise to the defendant in order to get him to make a statement. However, the State did prove that no one offered the defendant any reward or hope of reward in laying the volun-tariness predicate before the jury. Any element of the voluntariness predicate absent when the issue was presented to the judge was supplied when the voluntariness issue was presented to the jury. “If evi-denee is admitted without required preliminary proof, if followed by such proof or predicate, the error is cured.” Lockett v. State, 218 Ala. 40, 43, 117 So. 457 (1928).

The only objection to the confession was, “It’s inadmissible on its face. He wasn’t given all of his rights.” The State proved beyond question that the defendant was given each of the constitutional rights required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Our review of the record convinces us that there was a proper predicate for the admission'of the confession.

Ill

The defendant contends that the trial judge’s statement to the jury in his oral charge that “If you are satisfied from the evidence beyond a reasonable doubt that he is not. guilty, then the verdict is ‘not guilty’ ” constitutes reversible error. There was no objection to the oral charge and, in fact, defense counsel announced “satisfied.” This matter cannot be raised for the first time on appeal. Also in construing the charge as a whole, we do not find that the error was prejudicial to the defendant.

IY

In the presence of the jury, the trial judge requested the attorneys and the defendant to approach the bench. The separation of the jury was discussed.

Alabama Code 1975, Section 12-16-9(b) states that “(i)t shall be improper for the trial court to ask the accused, counsel for the accused or the prosecuting attorneys, in the hearing of the jury, whether he or they will consent to a separation of the jury pending the trial.” There has not been a showing that this matter was discussed “in the hearing of the jury.” Absent some affirmative showing in the record to the contrary, error will not be presumed from the actions of the trial judge. Ballard v. State, 236 Ala. 541, 184 So. 260 (1938).

There was no objection to permitting the jury to separate. No unlawful separation has been shown. The defendant cannot contend for the first time on appeal that he was prejudiced by a jury separation to which he did not consent. Cooper v. State, 340 So.2d 871 (1976); Turner v. State, 54 Ala.App. 467, 309 So.2d 503 (1975).

We have searched the record and found no error prejudicial to the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: BOYD, Justice.

text:
    Turner STREET and David Street, Appellants, v. STATE of Florida, Appellee.
    No. 54121.
    Supreme Court of Florida.
    March 20, 1980.
    Rehearing Denied June 11, 1980.
    Stephen R. Keroff of Keller & Keroff, Palm Beach, for appellants.
    Jim Smith, Atty.' Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   BOYD, Justice.

The appellants were convicted, following jury trial, of the offense of battery upon a law enforcement officer, a felony under Section 784.07, Florida Statutes (1977). The trial court passed upon the constitutional validity of the statute when it denied the appellants’ motions to dismiss, so their appeal lies to this Court. Art. V, § 3(b)(1), Fla.Const.

The appellants argue that improper instructions were given to the jury with regard to what the state was required to prove, but since there was no objection or request for instructions by the defense below, this contention will not be considered now.

The appellants contend that the statute violates equal protection by the special treatment it gives to police officers as victims of batteries. This issue has been resolved in favor of the statute’s validity. Soverino v. State, 356 So.2d 269 (Fla.1978).

The appellants contend that as a matter of law the verdict is not supported by substantial evidence. Our review of the record reveals that this contention is without merit.

Appellants contend that the- statute fails to give sufficient warning as to what, conduct will render a person liable to prosecution for the felony created thereby as opposed to prosecution for ordinary battery. The statute, however, has a scienter requirement. State v. Bailey, 360 So.2d 772 (Fla.1978). It requires that the accused know that his victim is a law enforcement officer or firefighter. Appellants argue that the phrase “engaged in the lawful performance of his duties” is vague and raise the question of whether a policeman who is using excessive force is so engaged. But the use of unlawful force by a police officer, giving rise to a right of self-defense, would not relate to the matter of sufficient notice but would be a defense to the battery charge itself. As a matter of common understanding and practice, the statute conveys sufficiently definite warning as to what is proscribed. Zachary v. State, 269 So.2d 669 (Fla.1972).

Finally, appellants argue that the statute violates due process by overbreadth, in that it could be applied to conduct that should only be punished as a misdemeanor. Overbreadth attack is only proper when the statute could be applied to innocent, protected activity, which does not include battery. Pruitt v. State, 363 So.2d 552 (Fla.1978); State v. Bales, 343 So.2d 9 (Fla.1977).

The judgment is affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON and SUNDBERG, JJ., concur.


author: ENGLAND, Chief Justice,

text:
    CITIZENS OF the STATE OF FLORIDA, Petitioners, v. FLORIDA PUBLIC SERVICE COMMISSION, Respondent.
    No. 56901.
    Supreme Court of Florida.
    May 15, 1980.
    Rehearing Denied July 30, 1980.

      Jack Shreve, Public Counsel, and J. Roger Howe, Assoc. Public Counsel, Tallahassee, for petitioners.
    B. Kenneth Gatlin, John W. Costigan and Ben E. Girtman, Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, S. A. Brandimore, Richard W. Neiser and James A. McGee, Florida Power Corp., St. Peters-burg, for respondent.
   This cause having heretofore been submitted to the Court upon the transcript of record, briefs and argument of counsel to review the order of the Florida Public Service Commission in said cause, it is ordered that certiorari is denied.

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

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

ENGLAND, Chief Justice,

dissenting.

Once again we have for review the financial implications of Florida Power Corporation’s nuclear generating unit commonly known as Crystal River No. 3. The matter brought to us on this occasion is a final order of the Public Service Commission terminating a rate docket (No. 770316-EU), awarding to Florida Power a permanent rate increase, and granting it the right to retain approximately $150,000,000 in revenues received on the basis of an interim rate award. Public counsel for the State of Florida alleges that the Commission’s action is not based on competent substantial evidence and constitutes a departure from the essential requirements of law.

Without detailing the tortuous history of this case, the relevant facts are these. The Commission concluded an earlier, limited rate proceeding in Order 8160, granting Florida Power a permanent annual revenue increase of $59,468,468. Several industrial customer intervenors asked the Commission to reconsider that order. In response, the Commission in Order 8260 expanded the docket to a full revenue requirements case and reclassified the permanent rates granted by Order 8160 as interim (pending the results of the full rate proceeding) and subject to refund. This Court, on petition for review, affirmed the Commission’s authority to convert the limited docket into a full rate proceeding. Florida Power Corp. v. Hawkins, 366 So.2d 881 (Fla.1978).

While conducting the full rate review, the Commission was informed by its staff that current monthly financial reports filed by Florida Power indicated the utility was not earning its most recently authorized (1977) rate of return. The staff warned that continuation of the full rate review might result in Florida Power’s justifying a rate increase beyond that which had been awarded on an interim basis. Subsequently, two intervenors filed motions to terminate the proceeding. After hearing oral argument, the Commission denied the motions, but directed its staff to prepare a detailed recommendation suggesting appropriate action.

Later, at an agenda conference at which no participants were allowed to appear, the Commission voted to terminate the proceeding in accordance with a staff recommendation. This action was confirmed by Order 8834 in which the Commission, by taking “official notice” of Florida Power’s monthly financial reports, ordered that the docket be closed and that the rates first authorized by Order 8160 remain in effect on a permanent basis. Moreover, Florida Power was allowed to retain all revenues it had received on an interim basis during the pendency of the full rate proceeding.

Public counsel’s objections to the Commission’s action focus on the following passage from Order 8834:

The monthly financial reports submitted by the Company in compliance with the Commission’s continuing surveillance review program for the months of December, 1978, January and February, 1979, of which we take official notice, reflect that Florida Power Corporation during those months achieved earned rates of return of 8.18%, 8.02% and 7.98% respectively, as compared to its presently authorized rate of return of 8.66%. While it reasonably could be assumed that the extensive evaluation of the company’s performance which takes place in a rate case setting could result in some adjustments to the bases for such calculations, including a determination of the appropriate cost of capital to the company, the disparity between the earnings performance depicted by the monthly financial reports and the presently authorized return indicates strongly that the rates presently in effect do not produce a return that is unreasonably high at the present time. While we of course do not prejudge the results of a full case, we do recognize the possibility that the company under present circumstances could justify, not only the interim increase, but the requirement of additional revenues as well. Under such circumstances, we believe that the tremendous expense — in terms of time and money — associated with a major rate case, which of course is ultimately borne by ratepayers, would be unproductive and unwarranted. Accordingly, we have decided to terminate this docket.

Public counsel argues that Order 8834 is not supported by competent substantial evidence, inasmuch as the monthly financial reports were neither offered into evidence nor properly subjected to official notice under section 120.61, Florida Statutes (1977). Public counsel also contends that the Commission departed from the essential requirements of law in allowing Florida Power to receive the benefits of both an interim and a permanent rate award, without making any findings relative to the utility’s rate base or fair rate of return. I agree with public counsel on both counts.

All parties concede that the monthly financial reports on which the Commission based its decision were not part of the official record in this proceeding. The Commission defends its authority, however, to take “official notice” of these reports under section 120.61, Florida Statutes (1977). That section provides that “[w]hen official recognition is requested, the parties shall be notified and given an opportunity to examine and contest the material.” Like other provisions of the administrative procedure act, section 120.61 guarantees parties the basic rudiments of procedural due process — notice and an opportunity to be heard — before permitting agency action which may affect their vital interests. The need for these procedural safeguards is especially apparent when, as in the present case, the Commission relies on unaudited monthly financial reports submitted by an interested party. Indeed, this Court has quashed the Commission’s prior efforts to base regulatory action upon official notice of such reports because the parties were not afforded an opportunity to contest the data. See Florida Gas Co. v. Hawkins, 372 So.2d 1118 (Fla.1979); Florida Power Corp. v. Hawkins, 367 So.2d 1011 (Fla.1979).

Respondents argue that public counsel had adequate notice and an opportunity to examine and contest the monthly financial reports at oral argument on the motions to terminate. This . argument' overlooks the fact that the Commission’s decision to take official notice of the reports was made at a later agenda conference at which no parties were allowed to participate. Public counsel’s earlier opposition to the motions, which was successful, can in no meaningful sense be characterized as “an opportunity to examine and contest the material” under section 120.61. Before taking official notice of the reports, the Commission should have notified the parties of its intent to rely on matters outside the record and allowed them to specifically contest these matters. See General Development Utilities, Inc. v. Hawkins, 357 So.2d 408, 409 (Fla.1978) (“Section 120.61 . . . contemplates notice of matters to be officially recognized and the opportunity to contest them.” Footnote omitted.). The Commission’s failure to comply with the requirements of section 120.61 constitutes a denial of administrative due process, and prevents the financial reports from serving as “competent substantial evidence in the record” for the Commission’s action. Sections 120.68(10), 120.57(1)(b)5, Fla.Stat. (1977).

Public counsel’s second contention — that the Commission departed from the essential requirements of law in determining Florida Power’s revenue needs — is also well grounded. Past opinions of this Court have established beyond doubt that the statutory scheme for making and adjusting rates is a structured one. In several decisions, we discussed in detail the operation of the “file and suspend” procedures which have been integrated into the normal rate making process. See Florida Power Corp. v. Hawkins, 367 So.2d 1011 (Fla.1979); Maule Industries Inc. v. Mayo, 342 So.2d 63 (Fla.1976); Citizens of Florida v. Mayo, 333 So.2d 1 (Fla.1976). Nothing in those decisions suggests that the Commission may authorize the retention of an interim award without concluding the rate proceeding and verifying the company’s entitlement to both interim and permanent rate relief. Thus, when the Commission decided by Order 8260 to expand the docket into a full rate proceeding in which rate of return, rate base and operating expenses were all relevant factors, it violated the essential requirements of law which we have ' announced when it reversed that determination and simultaneously allowed Florida Power to retain the benefits of both an interim and a permanent award which had never been confirmed by competent substantial evidence.

If we were to allow the Commission to proceed as it did in this case, we would sanction the award of interim and permanent rates — without adequate proof — upon the termination of any full rate proceeding in which interim awards had been granted on the basis of a mere preliminary showing of need. There is no legal support for this result in the general statutory scheme for rate setting or in any past decisions of this Court. The Commission’s action plainly departs from the essential requirements of law.

BOYD and SUNDBERG, JJ., concur.

      . This case has been before the Court on four prior occasions. See Florida Power Corp. v. Hawkins, 367 So.2d 1011 (Fla.1979); Florida Power Corp. v. Hawkins, 366 So.2d 881 (Fla.1978); Florida Power Corp. v. Hawkins, 346 So.2d 1248 (Fla.1977); Florida Power Corp. v. Hawkins, No. 51,239 (Fla. Mar. 29, 1977).

      . See, e. g., §§ 120.57(1)(b)2, 120.57(2)(a)1, 2, Fla.Stat. (1977).

      . The Commission’s notice of oral argument on the motions to terminate was in its standard form, setting forth the time, place, and general purpose of the hearing. Although such notice may be sufficient for purposes of § 120.-57(1)(b)2, Fla.Stat. (1977) (“formal proceedings”), see City of Plant City v. Mayo, 337 So.2d 966 (Fla.1976), greater specificity is required under § 120.61, Fla.Stat. (1977).


author: ALDERMAN, Justice. ADKINS, Justice,

text:
    Richard David DOERR, II, Petitioner, v. STATE of Florida, Respondent.
    No. 52275.
    Supreme Court of Florida.
    May 8, 1980.
    Jack 0. Johnson, Public Defender; and Douglas A. Wallace, Asst. Public Defender, Bradenton, for petitioner.

      Jim Smith, Atty. Gen., and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for respondent.
   ALDERMAN, Justice.

The District Court of Appeal, Second District, has certified the following question for our resolution:

IS ANY CONFESSION BY A JUVENILE AFTER HE IS TAKEN INTO CUSTODY RENDERED INADMISSIBLE IF IT WAS GIVEN PRIOR TO NOTIFICATION OF HIS PARENTS OR LEGAL GUARDIANS PURSUANT TO SECTION 39.03(3)(a), FLORIDA STATUTES (1975)?

The district court answered this question in the negative. We agree with its decision and hold that section 39.03(3)(a), Florida Statutes (1975), does not require that every confession by a juvenile after he is taken into custody be automatically rendered inadmissible if it was given prior to notification of his parents or legal guardians.

Doerr, who at age sixteen was charged with three counts of burglary, was waived by the juvenile division to the criminal division to be tried as an adult. After denial of his motion to suppress certain statements made by him to the arresting officer, Doerr pled nolo contendere, reserving his right to appeal the denial of his motion to suppress.

Prior to arresting Doerr, the arresting officer informed Doerr’s mother that he intended to arrest. her son. Later that night, the officer arrested Doerr, and, while in the patrol car enroute to the juvenile detention center, the officer advised him of his rights. He was again advised as to his rights at the detention center. In response to questions, Doerr admitted several burglaries and supplied the officer with details of the burglaries. The officer who interrogated Doerr was unable to recall whether Doerr’s mother was notified before or after the interview.

On appeal to the district court, Doerr argued that the trial court erred in not suppressing his statements because, prior to Doerr’s interrogation, the arresting officer failed to comply with section 39.03(3)(a), Florida Statutes (1975), which provides in pertinent part:

If the person taking the child into custody determines, pursuant to paragraph (c), that the child should be detained or placed in shelter care, he shall immediately notify the parents or legal custodians of the child ....

The district court disagreed with Doerr’s contention and affirmed the trial court. We agree with the district court’s following rationale:

Section 39.01(3) defines “taken into custody” to mean “the status of temporary physical control of a child by a person authorized by this chapter, pending his release, detention, or placement.” The language of Section 39.03(3)(c) differentiates between taking a child into custody and placing him in detention or shelter care. If a child is not to be detained or placed in shelter care, Section 39.03(2) provides that the person who has taken the child into custody shall release him to a parent or other responsible adult. The only portion of Section 39.03 which specifies notification of the parents or the legal custodians of the child is Section 39.03(3)(a), and this obligation arises when the person taking the child into custody determines that the child should be detained or placed in shelter care. Therefore, as we read the pertinent portion of Section 39.03(3)(a), its purpose is to assure that when a juvenile is to be kept beyond the period of the statutory definition of custody his parents must be advised of his whereabouts. T. B. v. State, 306 So.2d 183 (Fla. 2d DCA 1975). While the legislature could also have required notification of a juvenile’s parents before he could be interrogated, it has not seen fit to do so. Therefore, even though Detective Hartery may have intended from the outset to cause the appellant to be detained, this is irrelevant to our disposition of the case because the statutory requirement of notification has nothing to do with interrogation.
Juvenile confessions have always been held to be admissible, though the courts have necessarily regarded them with closer scrutiny because of the age of the person involved. See T. B. v. State, supra. In State v. Francois, 197 So.2d 492 (Fla.1967), our Supreme Court declined to adopt an exclusionary rule which would automatically exclude all confessions given by those who were still under the jurisdiction of the juvenile court. The United States Supreme Court has held that the admissibility of a juvenile confession depends upon the “totality-of circumstances” under which it was made. Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed. 325 (1962). The more immature the juvenile may be, the greater likelihood exists that his confession will be deemed inadmissible. The fact that a juvenile’s confession was given before he had the opportunity to talk with his parents or an attorney is certainly a factor militating against its admissibility. But, the existence of this fact does not preclude a finding of voluntariness depending upon all of the other circumstances surrounding the confession.

348 So.2d at 940-41.

The district court correctly distinguishes our earlier case of Roberts v. State, 285 So.2d 385 (Fla.1973), in which a confession was suppressed for failure to comply with the following emphasized portion' of the predecessor to the statute which we are now asked to interpret. The predecessor statute, section 39.03(3), Florida Statutes (1971), provided in pertinent part:

The person taking and retaining a child in custody shall notify the parents or legal custodians of the child and the principal of the school in which said child is enrolled at the earliest practicable time, and shall, without delay for the purpose of investigation or any pther purpose, deliver the child, by the most direct practicable route, to the court of the county or district where the child is taken into custody .

[Emphasis supplied.] After Roberts was decided, the emphasized language was excised from the statute.

Section 39.03(3)(a) should not be read to mean that a child may never make a voluntary statement unless his parents or legal custodians have been notified. Although the legislature may someday specifically require notification before interrogation, it has not yet done so. The language of section .39.03(3)(a) does not support Doerr’s position that the legislature intended that a juvenile should not be subjected to an interrogation until a parent or legal custodian has had an opportunity to consult with the child. This is particularly true in view of the legislature’s amendment of this section following our decision in Roberts v. State.

The legislature has done nothing more than establish a procedure to be followed in the event the person taking a child into custody determines that he should be detained or placed in shelter care. Section 39.03(3)(a) clearly makes a distinction between taking the child into custody and subsequent determination that he should be detained or placed in shelter care. Notification of the child’s parents- or legal custodians is required only after it is determined that the child will be detained or placed in shelter care. If, after the child has been taken into custody, a determination is made that he will not be detained or placed in shelter • care, notification is not required. The purpose of notification is simply to advise the child’s parents or custodians that the child has been detained or placed in shelter care. This section does not prohibit interrogation after the child is taken into custody but before a determination is made to release or detain. Obviously, some inter-' rogation may be necessary to initially determine whether the child should be detained or released. It likewise does not prohibit interrogation after a decision to detain is made. Lack of notification of a child’s parents is a factor which the court may consider in determining the voluntariness of any child’s confession, but is not a statutory prerequisite to interrogation.

Adoption of the strict exclusionary rule proposed by Doerr would void even those statements voluntarily given by a juvenile at the scene of the crime. In fact, in the present case, Doerr does not contend that his statements were involuntary.

Accordingly, we approve the district court’s decision.

It is so ordered.

ENGLAND, C. J., and OVERTON and McDONALD, JJ., concur.

ADKINS, J., dissents with an opinion with which BOYD and SUNDBERG, JJ., concur.

ADKINS, Justice,

dissenting.

I dissent.

I would answer the question in the affirmative. In taking this position I agree that a juvenile could be interrogated prior to the time the parents are notified. It is elementary law that statements voluntarily given by a juvenile (or anyone else) at the scene of a crime are admissible. An amendment to the statute mandates that the parents or legal guardians of the child be notified when the child is taken into custody. The reasoning of the majority that the purpose of the amendment was to let the parents know where the child was located is without weight, for any agency taking a child into custody would notify the parents regardless of any statutory mandate. The purpose of the mandate was to assure the voluntary nature of any confession made by the juvenile.

In Roberts v. State, 285 So.2d 385 (Fla.1973), this Court held that a confession should be suppressed if it had been secured in violation of the provisions of former section 39.03(3), Florida Statutes (1971), which reads as follows:

The person taking and retaining a child in custody shall notify the parents or legal custodians of the child and the principal of the school in which said child is enrolled at the earliest practicable time, and shall, without delay for the purpose of investigation or any other purpose, deliver the child, by the most direct practicable route, to the court of the county or district where the child is taken into custody . . . (Emphasis supplied.)

This section was amended to read as follows:

If the person taking the child into custody determines, pursuant to paragraph (c), that the child should be detained or placed in shelter care, he shall immediately notify the parents or legal custodians of the child and shall, without unreasonable delay, deliver the child to the appropriate intake officer or, if the judge has so ordered to a detention home or shelter, and shall, upon delivery of the child, report in writing to the appropriate intake officer. (Emphasis supplied.)

In the case sub judice, the district court of appeal held that Roberts v. State, supra, was no longer controlling because of this amendment:

Thereafter, the legislature eliminated the italicized language upon which the Roberts decision was based and substituted a milder version thereof which requires that a child who is to be detained or placed in shelter care shall be delivered to the intake officer without. unreasonable delay.

Doerr v. State, 348 So.2d 938, 941 (Fla. 2d DCA 1977). The Court did not discuss the effect of the amendment requiring immediate notification to the parents or legal custodian. The statute is a legislative directive to the courts and other law enforcement agencies that juveniles shall be treated differently from other suspected criminals in that they shall not be interrogated until the parents or legal custodian shall be notified. The purpose of this directive is that a juvenile, presumptively inexperienced in the ways of crime, should not be subjected to an interrogation relative to guilt until a parent or legal custodian has had an opportunity to consult with the child. In many instances Miranda warnings would mean nothing to the juvenile defendant.

In other instances this directive may be based upon an inaccurate presumption. "I recognize that many juveniles are aware of their rights. Nevertheless, it is within the province of the legislature to require notification before guilt interrogation. The former law required that the notification be made “at the earliest practicable time.” The amendment required that the notification shall be made “immediately.” This is a prerequisite to any guilt interrogation.

In the case of In the Interest of R.L.J., 336 So.2d 132 (Fla. 1st DCA 1976), cited by the state, the father of the juvenile was notified and replied that he had no objection to the interrogation.

In the Interest of W.J.N., 350 So.2d 119 (Fla. 4th DCA 1977), involved a situation where Miranda warnings were given and a confession obtained before the juvenile was delivered to the appropriate intake officer.' The court held that these factors could be considered in determining whether or not the confession was voluntary, but the court did not require the suppression of the confession. There is nothing in the opinion concerning notification of the parents or custodian and the court did not consider the effect of the failure to notify.

The statute clearly requires that when a child is detained or placed in shelter care the parents or legal custodian» shall be immediately notified. This is a legislative policy and the absence of notification invalidates any subsequent confession.

It appears that the mother of Doerr was told that an officer intended to arrest her son and she attempted to assist the detective in locating the defendant. Although the mother had notice of the charge against the juvenile, she was not notified when the defendant was detained.

I would quash the decision of the district court of appeal and remand the cause with instructions to reverse the judgment of the trial court.

BOYD and SUNDBERG, JJ., concur.

      . Doerr v. State, 348 So.2d 938 (Fla. 2d DCA 1977).


author: PER CURIAM. BOYD, Justice,

text:
    Julius B. KITTRELL, Petitioner, v. John A. CLARK, and Hallie Hall Blocker, Respondents.
    No. 55653.
    Supreme Court of Florida.
    May 8, 1980.

      Harvey R. Klein, H. Randolph Klein, Oca-la, for petitioner.
    K. H. MacKay, Jr., Thomas C. Ranew, Jr., of Pattillo, MacKay & McKeever, Ocala, for respondents.
   PER CURIAM.

This cause having heretofore been submitted to the Court on jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction under Fla.R. App.P. 9.120, and it appearing to the Court that it is without jurisdiction, it is ordered that certiorari is denied.

No Motion for Rehearing will be entertained by the Court. See Fla.R.App.P. 9.330(d).

OVERTON, SUNDBERG, ALDERMAN and McDONALD, JJ., concur.

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

BOYD, Justice,

dissenting.

This cause is before the Court on petition for certiorari to review the decision in Kittrell v. Clark, 363 So.2d 373 (Fla. 1st DCA 1978), which conflicts with Wilson v. Kelley, 226 So.2d 123 (Fla. 2d DCA 1969). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. At issue is the construction and application of the Marketable Record Title Act, chapter 712, Florida Statutes (1975). I dissent from the Court’s denial of certiorari. This Court should exercise its constitutional conflict certiorari jurisdiction for the following reasons: (1) the decision conflicts with other Florida appellate decisions cited herein; and (2) the decision substantially emasculates the Florida Marketable Record Title Act.

The act provides:

Any person having the legal capacity to own land in this state, who, alone or together with his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03. A person shall have a marketable record title when the public records disclosed a record title transaction.affecting the title to the land which has been of record for not less than 30 years purporting to create such estate either in:
(1) The person claiming such estate; or
(2) Some other person from whom, by one or more title transactions, such estate has passed to the person claiming such estate, with nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed.

§ 712.02, Fla.Stat. (1975). Section 712.03 lists the interests that are not extinguishable by the marketable record title. Among the rights that are not extinguished are estates or interests “‘arising out of a title transaction which has been recorded subsequent to the effective date of the root of title.”

A “title transaction” is defined as “any recorded instrument or court proceeding which affects title to any estate or interest in land.” § 712.01(3), Fla.Stat. (1975). “Root of title” is defined as “any title transaction purporting to create or transfer the estate claimed by any person and which is the last title transaction to have been recorded at least 30 years prior to the time when marketability is being determined.” § 712.01(2), Fla.Stat. (1975).

The facts, as stated in the opinion of the district court, are as follows.

In 1903, R. S. Hall, appellee Hallie Hall Blocker’s grandfather, conveyed certain land to H. M. and O. Goethe, “excepting and reserving from the operation of this conveyance all phosphate minerals, and oils upon, in or under any or all of the . . . land.” In 1905, H. M. Goethe, et al., conveyed the land to C. J. McGe-hee, et al., d/b/a McGehee Lumber Company by warranty deed containing the following clause:
“Reserving, however, unto said first parties . . .all phosphate, minerals and oils upon . . . the lands above described, which were conveyed to first parties by R. S. Hall, [et al.].
In 1910 McGehee Lumber Company conveyed the property without reservation to Florida National Land Company, and in 1914 Florida National Land Company conveyed the property to John A. Clark.. The latter deed, relied upon by appellant Kittrell as his root of title, made no reference to, and purported to convey, the phosphate, minerals and oils in the land previously reserved to R. S. Hall. In 1919, R. S. Hall died and his will, which devised all his real property to his wife, Mamie Hall, was probated in Marion County. The will did not particularly describe any real property, and nothing filed in the estate, including the Federal Estate Tax Return, which listed numerous real estate holdings, contained any description or reference to the subject mineral and oil rights. The estate of Mamie Hall, probated in 1948, does not contain any reference to the subject rights, and the Petition for Probate of Will recites that no real estate was owned by the decedent. No estate appears of record for W. Robert Hall, appellee’s father, and the estate of Sarah D. Hall, appellee’s mother, probated in 1968, contains no reference or inventory of the phosphate, minerals and oils. The appellant received title-to the property in question in 1957 from John A. Clark, and filed this suit to quiet title in 1976.

Kittrell v. Clark, 363 So.2d at 373-74.

The district court held that the probate of the estate of a former party in interest within thirty years after the recording of a root of title preserves the prior interest from extinguishment even though there is no description, inventory or mention of the property in the probate proceedings of the deceased prior owner. It would follow from this holding that the probate of estates of heirs of the claimant would continue to preserve the rights of ownership in them against the operation of the statute.

We have previously noted and commented on the declaration in section 712.10 that the act is to be “liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title . .” Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla.1970). The district court’s construction violates the legislative mandate and creates confusion in the law. See also Sawyer v. Modrall, 286 So.2d 610 (Fla. 4th DCA 1974); Whaley v. Wotring, 225 So.2d 177 (Fla. 1st DCA 1969).

The decision of the court below conflicts with the decision in Wilson v. Kelley, 226 So.2d 123 (Fla. 2d DCA 1969). In that case the court considered the application of the act when the title transaction asserted as the root of title was a quit claim deed which, although describing the real estate by metes and bounds, did not specify the precise interest in the land which the grant- or was attempting to convey. The court held that the instrument was not a valid root of title because it did not evidence “an intent to convey an identifiable interest in the land.” Id. at 128. The court noted that the intent of the act is “to resolve any apparent estates or interests arising out of title transactions recorded subsequent to the root of title.” Id. at 127 (emphasis supplied).

In Wilson, the court required that a quit claim deed, when asserted as the title transaction constituting the root of title, describe the land and identify the interest being transferred. In the case at bar the court allowed as a “title transaction” the mere probate of an estate even though there was no description, inventory or mention in the probate proceedings of the property in question. The instrument in Wilson described the land but could not be a title transaction because it failed to specify the interest conveyed. The purported title transaction in the instant case contained neither a description of the land nor any reference to it whatsoever. The decision below, therefore, conflicts with Wilson v. Kelley.

The public records contain the records of all probated estates, and the normal way for a title examiner to determine whether a decedent in an estate was the former ownér of real property is to examine the assets shown in probate. If the property is not listed, one may surmise that it is not the estate of a former owner, or that the claim of ownership has been abandoned. In surnames likes Jones and Smith countless estates of persons with the same first and last names are shown in probate. Since identifying the real property will no longer be required for the probate of a former owner’s estate to suspend operation of the statute, title attorneys will be required to institute countless quiet title suits against many former owners and their heirs to eliminate phantom claims to real property which may have been kept alive by the construction of the statute given by the district court in the case under review.

If the decision of the district court is correct, the Marketable Record Title Act may have caused more harm than good.

ENGLAND, C. J., and ADKINS, J., concur.


author: SCHEB, Judge.

text:
    Linda Mae GENSEMER, Appellant, v. Harold J. GENSEMER, Appellee.
    No. 79-907.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1980.
    Watson R. Sinden of McClure & Turville, St. Petersburg, for appellant.
    No appearance for appellee.
   SCHEB, Judge.

Appellant wife contends the trial court’s failure to grant her permanent alimony was an abuse of discretion. We agree and reverse.

Appellant, Linda Mae Gensemer, and Harold J. Gensemer were married in 1969. Their one child, Melissa Michelle, was born in 1973. The husband, age thirty one, was a police detective who was injured in the line of duty in 1977. As a result of the 45% disability he sustained, the husband received a $38,000 lump sum settlement and will receive $800 per month for life. Yet he is gainfully employed as a management trainee with a present compensation of $2.90 per hour. In his financial statement he estimated that $266.24 per week was required to maintain himself and his child. At the time of final hearing, his principal assets were a $10,000 certificate of deposit, a $14,000 automobile, and a $3,000 boat. He still owed $7,000 to a credit union for sums he borrowed in 1974 to pay the wife’s hospital bills, and $8,000 on his recently acquired automobile.

The wife, age twenty-nine, suffered from mental illness prior to and throughout the marriage, and was under frequent psychiatric care. In recent medical reports reviewed by the trial judge, her psychiatrist diagnosed her illness as “manic depressive, cyclic, manic” and noted that “she may need long and further treatment again.”

During the marriage the wife was employed in various clerical positions. She lost her first clerking job after she suffered a nervous breakdown and was hospitalized. She quit her next position at the husband’s request when she was pregnant with their child. At the time of her hearing she was a credit clerk in a department store earning $2.90 per hour with a net pay of $70 to $85 per week. She listed her current expenses as $93 per week, a figure which allotted only $10 per week for medical and dental expenses.

In 1971 the parties purchased a home, taking title as tenants by the entirety. The husband testified that it is worth $32,000, and is encumbered by a $12,000 mortgage.

The trial court dissolved the marriage and awarded custody of the child to the husband. The court also granted him exclusive use of the jointly owned home until the child reaches eighteen years of age, marries, or becomes self supporting. The court denied the wife’s request for alimony and required the parties to bear their respective costs.

It is a well recognized principle that a trial court’s judgment, particularly in respect to financial awards in domestic relations cases, will be upheld by an appellate court unless the appellant clearly shows that the trial court has abused its discretion. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976). The wife contends the trial court abused that discretion by denying her request for alimony. There are three criteria upon which alimony is traditionally predicated: (1) the ability of the husband to pay alimony; (2) the financial needs of the wife compared to her ability to support herself from her own income; and (3) the standard of living enjoyed by the wife during the marriage. Caracristi v. Caracristi, 324 So.2d 634 (Fla.2d DCA 1976).

The wife in this case is relatively young and she and her husband each have approximately the same present earning capacity. Further, the wife has a history of medical problems which have resulted in considerable expense. Her employment history also makes it difficult to predict the likelihood of her supporting herself and providing for any future medical needs. The husband, on the other hand, has a permanent disability income and appears to have a potential for increased earnings as he advances in his new occupation.

Under the court’s final judgment, the wife leaves the marriage with a history of mental illness and with virtually no assets. Even her equity in the jointly owned home is to remain in exclusive possession of the husband until their child reaches age eighteen in 1991. The husband’s stable income gives him the ability to care for the wife’s needs. Under these circumstances we conclude that the trial court abused its discretion in failing to award permanent alimony to the wife.

Finally, appellant contends that the trial court abused its discretion in failing to award her attorney a reasonable fee for representing her in the proceedings in the trial court. The court did award her temporary attorney’s fees, but made no permanent award. We note, however, that the evidence before the trial judge, as stipulated to by the parties and approved by the court pursuant to Florida Rule of Appellate Procedure 9.200(b)(3), includes no reference to attorney’s fees. Consequently, the trial court did not abuse its discretion in failing to award any. Nivens v. Nivens, 312 So.2d 201 (Fla.2d DCA 1975).

Accordingly, we reverse that part of the final judgment which denies the wife’s entitlement to alimony, and direct that the trial court enter an amended judgment awarding the wife no less than $40 per week in permanent alimony.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.


author: PER CURIAM.

text:
    William J. TILLMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-263.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1980.
    William J. Tillman, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL and HENDRY, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed. See: Schneble v. State, 201 So.2d 881 (Fla.1967); State v. Allen, 335 So.2d 823 (Fla.1976); Zuberi v. State, 343 So.2d 664 (Fla.3d DCA 1977); Jones v. State, 360 So.2d 1293 (Fla.3d DCA 1978); Rodriguez v. State, 379 So.2d 657 (Fla.3d DCA 1980).


author: BOOTH, Associate Judge:

text:
    ST. JOE PAPER COMPANY, a Florida Corporation et al., Appellants, v. ST. JOHNS COUNTY, a body politic, Appellee.
    No. KK-424/NT1-13.
    District Court of Appeal of Florida, Fifth District.
    March 11, 1980.
    As Amended On Denial of Rehearing May 9, 1980.

      William A. Van Nortwick, Jr., of Martin, Ade, Birchfield & Johnson, Jacksonville, for appellants.
    James G. Sisco, St. Augustine, for appel-lee.
   BOOTH, Associate Judge:

This cause is before us on appeal from a final judgment holding a roadway across property owned by St. Joe had become the property of appellee under Florida Statutes, § 95.361, which is, in pertinent part, as follows:

“(1) When a road, constructed by a county, a municipality, or the Division of Road Operations, has been maintained or repaired continuously and uninterruptedly for 4 years by the county, municipality, or Division of Road Operations, jointly or severally, the road shall be deemed to be dedicated to the public to the extent in width that has been actually maintained for the prescribed period, whether the road has been formally established as a public highway or not. The dedication shall vest all right, title, easement, and appurtenances in and to the road in: “(a) The county, if it is a county road;”

The facts are that appellant, St. Joe Paper Company, has, since 1946, held record title to property located between State Road A1A and the Atlantic Ocean known as Mickler’s Landing. Crossing St. Joe’s property from the highway to the ocean is a roadway known as Mickler’s Access. The evidence showed that there has been an access to the beach at this location since the government survey of 1840 and that the access way is the result of natural geological formations of coquina and limerock. Prior to 1952, the access way was subjected to heavy use by the county road department, including the removal of the natural material which was used to build roads in the area, and to use by the general public.

In 1952, the County, by resolution, abandoned any interest acquired by its use of the roadway in exchange for a parcel of property deeded to it by St. Joe. Thereafter, the record reflects that, between 1952 and 1974, the County intermittently placed coquina and limerock and used a grader to remove the drifting sands blown across the roadway.

In 1974, the County paved the access way with asphalt. St. Joe filed its complaint in January of 1976, seeking quiet title to the property and to enjoin further trespass. The County answered, claiming that the access way had been dedicated by operation of § 95.361. The cause was tried to the court without a jury and final judgment entered in favor of the County, awarding a twelve-foot roadway.

On appeal to this court, St. Joe contends fthat Florida Statutes, § 95.361, to the extent that it has been construed to give rise to a conclusive presumption of dedication, is unconstitutional. We find it unnecessary to address this issue, since we find merit in St. Joe’s other issue on appeal, that compliance with the requirements of the statute was not established in this case. Specifically, we find that the County did not meet the requirement of “construction” of the roadway as required.

At common law, and in Florida, twenty years is required in order to create a prescriptive easement and seven years for acquisition of title by adverse possession. Florida Statutes, § 95.361 creates an exception to these general rules by providing a substantially shorter four-year period. The statute applies to create a presumption of dedication in favor of the public and thereby deprives the legal title owner of his property within a relatively short period of time, but only when the requirements of the statute are strictly met. Acts which might prove sufficient for establishment of a prescriptive right at common law, such as continuous use of the roadway, are not sufficient. The roadway must, in the first instance, have been constructed, in the sense of built or made, by the public entity so that at a definite point in time it can be said that construction of a road has occurred. The road must be continuously and uninterruptedly maintained or repaired for four years. The statutory requirements are designed to puf the legal title holder on notice both as to the commencement of the four-year period (construction) and as to the continued assertion of the adverse claim for four years (repair or maintenance).

The facts in the instant case show that the County did not construct Mickler’s Access and that the County’s activities prior to the 1974 paving constituted repair and maintenance of a preexisting roadway. It is uncontroverted that the County’s paving of the road was in 1974, less than four years prior to St. Joe’s filing suit, and, therefore, ineffective under the statute to give the County title to. the roadway.

In Pasco County v. Johnson, 67 So.2d 639 (Fla.1953), the owner of property offered to dedicate a strip of his property for a road, and the County entered onto the realty, cleaned up the brush, stumps and trees, filled and made a useable county road. These activities were held to be a “construction” within the terms of the predecessor of Florida Statutes, § 95.361. In that case, the Florida Supreme Court specifically found that a pre-existing road on the property had been relocated and a “new road” laid out which was “constructed” as required by the statute. The opinion further holds that it is not necessary that the roadway be paved in order to establish construction or that every act involved in the construction be completed at one and the same time. In the instant case, no acts by the County prior to 1974 sufficiently changed the character or nature of Mickler’s Access so as to be termed a “construction,” to put the landowner on notice and start the running of the statute.

Accordingly, the judgment below is REVERSED and the cause remanded for further proceedings consistent herewith.

McCORD and MELVIN, Associate Judges, concur.

      . 2 Fla.Jur.2d, Adverse Possession, § 15.16.


text:
    Ronald GRAY, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1887.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Ronald Gray, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Bruce EVERETT, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1406.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Bruce Everett, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the piublic defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.