Appellant here challenges the constitutionality of section 39.04, Florida Statutes (1979). This Court has recently upheld the statute’s validity, State v. Cain, 381 So.2d 1361 (Fla. 1980), and, therefore, we find this issue to be frivolous. This case is transferred to the District Court of Appeal, Fifth District, for resolution of the remaining issues on appeal.

It is so ordered.