Opinion
No. HH-212.
January 3, 1979.
Appeal from the Circuit Court, Levy County, Wayne M. Carlisle, J.
Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
Raymond David Bryne appeals from a judgment and sentence for willfully withholding the means of support from minor children, pursuant to Section 856.04, Florida Statutes (1975). He contends that the evidence was insufficient to prove the essential elements of the offense. We agree and reverse.
For a conviction to be upheld under this statute, there must be a showing that the minor children were in need. Fekany v. State, 121 Fla. 51, 163 So. 221 (1935); Busch v. State, 97 Fla. 332, 120 So. 762 (1929); Griner v. State, 322 So.2d 647 (Fla. 1st DCA 1975). Here, there was a clear absence of evidence to establish need and thus the evidence is legally insufficient. The purpose of the criminal statute is to prevent the abandonment of children and to keep the children from being a charge on the public purse. Criminal prosecution should not be used where there is an adequate civil remedy to force a parent to support his children. Stedman v. State, 80 Fla. 547, 86 So. 428 (1920).
REVERSED.
ERVIN, Acting C.J., MELVIN, J., and MASON, ERNEST E., Associate Judge, concur.