The ruling of the trial court, that section 39.04(2)(e)4, Florida Statutes (Supp. 1978), is constitutional, is consistent with the recent decision of this Court in State v. Cain, 381 So.2d 1361 (Fla. 1980). Therefore, we find this appeal now to be legally frivolous and transfer this case to the District Court of Appeal, Fifth District, for resolution of the remaining issue.

It is so ordered.