author: NESBITT, Judge. DANIEL S. PEARSON, Judge,

text:
    F. B. BYSTROM, Property Appraiser of Dade County, Florida, and Randy Miller, as Executive Director of the Department of Revenue, Appellants, v. EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a New York corporation, Omni International of Miami, Ltd., a Georgia Limited Partnership, and Omni International of Miami, Inc., Appellees.
    Nos. 80-26, 80-66.
    District Court of Appeal of Florida, Third District.
    March 31, 1982.
    Rehearing Denied July 20, 1982.

      Jim Smith, Atty. Gen. and E. Wilson Crump, III, Asst. Atty. Gen., Robert A. Ginsburg, County Atty. and Robert L. Krawcheck, Asst. County Atty., for appellants.
    Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami, for appellees.
    Steven A. Schultz, Miami, for The Dade County Property Appraisal Adjustment Board as amicus curiae.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

This controversy concerns the assessment of ad valorem property taxes for the year 1978 on Omni International of Miami, which will be referred to as “Omni.” Appellant, F. B. Bystrom, as Property Appraiser of Dade County, will be referred to as “Appraiser.” Appellant, Randy Miller, Executive Director of the Department of Revenue of the State of Florida, will be referred to as “Department of Revenue.” The Dade County Property Appraisal Adjustment Board will be referred to as the “Board.” Collectively, the appellants will be referred to as the “Taxing Authority.” The appel-lees, who either own or have an interest in the affected real property, will be referred to as “Taxpayers.”

The Background

The object of this controversy is the Omni International of Miami, which is succinctly described as a “multi-purpose megastruc-ture.” This shopping center-hotel complex opened in June of 1977, for which year it was partially assessed and paid ad valorem taxes. The first year it was fully open and subject to taxation for an entire year was in 1978.

Utilizing the “cost approach,” the Appraiser’s predecessor placed the preliminary valuation as of January 1, 1978 at $67,251,-535. The Taxpayers filed a petition with the Board contesting the preliminary assessment, asserting a proper valuation of $37,000,000.

A special master’s report was adopted by the Board, utilizing an “income approach,” and resulting in a re-assessment of the just valuation to $59,560,000. The Appraiser, joined by the Department of Revenue, challenged the Board’s reduced valuation by filing suit in the circuit court pursuant to Section 194.032(6)(a), Paragraphs 1 and 2, Florida Statutes (1977). The Taxpayers filed their answer and a counterclaim as expressly authorized by Sections 194.-032(6)(b) and 194.171, Florida Statutes (1977).

It is pertinent to observe that while the rival claims are clothed in different raiment due to: (1) the Taxing Authority’s contention that the cost approach was the only proper approach in the assessment of the property; and (2) the Taxpayers’ contention that the proper method by which to ultimately assess the property was by utilizing the income approach, the claims were singularly identical with respect to the ultimate issue — the just valuation of the property under Article VII, Section 4 of the Florida Constitution and Section 193.011, Florida Statutes (1977). In a non-jury trial, the claims were tried seriatim without either party requesting a motion for involuntary dismissal at the close of the other party’s presentation, as they might have, pursuant to Florida Rule of Civil Procedure 1.420(b). After consideration of memoranda in lieu of closing argument, the trial court entered final judgment upon the Taxpayers’ counterclaim finding the just valuation of the property as of January 1, 1978 to be $43,-000,000. The circuit court expressly adopted the income or economic approach and expressly rejected the Board’s re-evaluation as well as the underlying appraiser’s cost approach to the assessment of the real property.

Ordinarily, where a complaint and a counterclaim are tried together, each case is disposed of with respect to the testimony and evidence produced in that case. However, in the present case, the identity of issues and the submission of the case on post trial memoranda created a situation whereby each party relied upon the totality of the evidence. In entering the final judgment on behalf of the Taxpayers on their counterclaim, the trial judge considered testimony produced by the Appraiser during his case in chief that:

The Property Appraiser’s own testimony substantiated that the valuation of this property was fixed by the cost approach.

The parties acquiesced in the court’s consideration of the evidence as it was presented in its entirety. Neither party has appealed the propriety of that procedure. Consequently, even though the Taxing Authority only appeals the judgment in favor of the Taxpayers on their counterclaim, we will consider all of the evidence presented in this case.

Exclusion of Income Data Evidence

In its case in chief and defense of the Taxpayers’ counterclaim, the Taxing Authority offered into evidence the actual operating data from Omni for the fiscal year commencing January 1 and ending December 31, 1978, which data the trial court excluded principally on the ground that it was incompetent. We disagree and reverse the judgment on this basis.

It is true and undisputed that the polestar of determining just valuation lies in ascertaining the valuation as of January 1 of the taxable year. Lake Worth Towers, Inc. v. Gerstung, 262 So.2d 1 (Fla.1972); Walter v. Schuler, 176 So.2d 81 (Fla.1965). However, in determining the fair market value of the property on January 1, evidence which comes to light after that date may be relevant to the valuation as of January 1 as well as rebuttal to the Taxpayers’ appraiser’s valuation.

In Homer v. Connecticut General Life Insurance Company, 213 So.2d 490, 492 (Fla. 3d DCA 1968), we stated, “The assessment may be defended by the presentation of any legally competent and relevant evidence proving or tending to prove the fair market value of the property.” The necessary correlative of this proposition is that the presentation of any legally competent or relevant evidence is probative of just valuation.

As substantive evidence, the actual income of the property is clearly relevant in reaching a valuation that conforms to the willing buyer-willing seller concept. See Walter v. Schuler, supra. Because Omni was a unique structure and had only been in operation for five months, there was no trend from which the appraiser could estimate income. Since it is not unusual for the appraiser to begin his assessment after January 1, there is no reason why he should be precluded from utilizing actual data insofar as it reflects upon conditions on January 1.

The Taxpayers’ appraiser admitted that he used data which came to light after January 1 in reaching his determination as to the proper assessment. He stated that he did not start the appraisal until six months after the valuation date. He continued:

What I did was to take the list of the people who they had as being firm prospects and so on, and I went through Omni with a list in my hand to see if the tenants were, in fact in possession and some of them were. Some never came in.

The Taxpayers can hardly be heard to object to the use of such data by the Property Appraiser.

Furthermore, Section 195.027(3), Florida Statutes (1977), authorizes the appraiser to obtain access to a taxpayer’s records which would aid the appraiser in rendering his assessment. Florida Administrative Code Rule 12D-1.05(l)(c)(3), promulgated pursuant to the statute specifically provides for access to records of leases, both before and after the January 1 date. This rule then assumes the relevancy of data after the January 1 date in reaching a proper valuation.

The relevance of actual income data as rebuttal becomes apparent when the testimony of the Property Appraiser’s predecessor in office, A. H. Blake, and the Taxpayers’ appraiser, are examined together. In the Taxing Authority’s case in chief, Mr. Blake stated that, in utilizing the income approach to arrive at just valuation, it becomes necessary to forecast the income of the property. He testified that the actual income would be the best way to measure the accuracy of that forecast. The trial judge excluded this actual income. The Taxpayers’ appraiser similarly testified that he would utilize projections of the income of the property in arriving at his appraisal. For example, he stated that he considered the collapse of the operation which Omni had in Atlanta and from that estimated that tenants would only be able to afford 50% of the rent for which they were obligated to pay. He therefore adjusted the income accordingly.

On rebuttal, the Taxing Authority sought once again to introduce the actual operating income to rebut the Taxpayers’ projection. It was proffered that the actual data would prove that the Taxpayers’ appraiser did not hypothecate a knowledgeable buyer and seller because his projection was grossly at variance with actual conditions. We agree with the Taxing Authority that this rebuttal testimony was highly relevant.

In reaching this conclusion, we recognize that in some cases annual operating revenue or losses become so remote in relation to just valuation that the trial court need not accord such testimony much weight—however, that determination must be made by the trier of fact in each case.

Having determined that the income data is relevant as both substantive and rebuttal evidence, it is admissible unless otherwise prohibited by law. Section 90.402, Florida Statutes (1977). We do not find that the January 1 date for fixing the valuation of property is a prohibition against the admission of evidence which comes to light after that date. Similarly, we do not find that the July 1 deadline for completion of the tax assessment was intended as a prohibition. The requirement that the appraiser complete all assessments on or before July 1 of each year, pursuant to Sections 193.023(1) and 194.011(1), Florida Statutes (1977) is nothing more than a legislative direction and grant of authority. It is the triggering mechanism that activates a panoply of taxation including challenges thereto and the ultimate determination of millage culminating in the completion of tax bills by the tax collector. Thus, these statutes in no way prohibit the introduction into evidence of information generated after January 1.

Consequently, the trial court’s exclusion of such data is erroneous.

Failure to Consider Testimony of Taxing Authority’s Expert

The Taxing Authority contends that the trial court improperly failed to consider the expert testimony of the Appraiser’s predecessor in office, A. H. Blake.

Blake testified that he was a real estate broker and a member of various appraisal societies as well as a certified property appraiser. His qualifications were not challenged. During the case in chief, Blake stated his opinion as to the fair market value of Omni, as distinguished from the method by which he arrived at his preliminary assessment. The final judgment appealed from entirely ignored that testimony, finding, without explanation:

No expert witnesses were called on behalf of the Plaintiff-Counterdefendant.

As a qualified expert, Blake was entitled to give his opinion in court involving real property ad valorem taxation and thus such testimony should have been considered. Failure to do so constituted either a misapprehension of the legal effect of the evidence or a palpable misconception of the facts, either of which is reversible error under the circumstances. Holland v. Gross, 89 So.2d 255 (Fla.1956); Winton v. Stone, 107 Fla. 636, 145 So. 845 (1933); Whitman v. Pet Incorporated, 335 So.2d 577 (Fla. 3d DCA 1976), cert. dismissed, 348 So.2d 951 (Fla.1977).

For the trial court’s exclusion of actual operating income data for the fiscal year and failure to consider Blake’s expert opinion, we reverse and remand for a new trial on the Taxpayers’ counterclaim. It therefore becomes essential to the retrial of the counterclaim that we examine appellant’s other contentions, some of which we find to be meritorious.

The Burden of Proof

In the present case, the Appraiser challenged the Board’s reduced valuation by the filing of a suit in circuit court authorized by Section 194.032, supra. The Taxpayers filed an answer which contained a counterclaim seeking a valuation lower than that which was rendered by the Board. The Appraiser did not appeal the adverse decision upon his original claim and therefore we need not consider it.

On the Taxpayers’ counterclaim, the trial court entered final judgment favorable to the Taxpayers further reducing the Board’s reevaluation. The Taxing Authority appealed that judgment and now contends that the trial court erred by shifting and allocating to it, what was properly the Taxpayers’ burden of proof upon their counterclaim. We agree.

Section 194.032(6)(c), Florida Statutes (1977) places the burden of proof upon the initiator of the action. Here, the Taxpayers initiated the action upon their counterclaim. In Grandway Credit Corporation v. Brown, 295 So.2d 714 (Fla. 4th DCA 1974), the court recognized that a counterclaim is a separate cause of action. Consequently, the Taxpayers are required to meet their burden of proof on the counterclaim.

We disagree with the appellant’s further assertion that the Taxpayers should have been required to prove their case to the exclusion of all reasonable hypotheses of a correct valuation — however, this requires some elaboration.

(a) Presumptive Validity of Official Public Acts

Florida Supreme Court decisions enunciate the common law rule that acts of public officials are presumptively valid and, in furtherance of the societal good, operate to place upon the challenging party, the burden of proof concerning the nonexistence of presumed facts. As applied to ad valorem taxation in Florida, it is doctrinaire that the appraiser, in reaching his assessment, must consider each factor enumerated in Section 193.011, supra, although he may assign to each criterion such weight as he deems appropriate. Straughn v. Tuck, 354 So.2d 368 (Fla.1978). By doing so, the appraiser is satisfying the constitutional mandate that property be assessed at just valuation. Art. VII, § 4, Fla.Const. Having utilized the necessary factors, the appraiser’s preliminary assessment enjoys a presumption in favor of its correctness. This presumption arises from public policy considerations. In Schleman v. Connecticut General Life Ins. Co., 151 Fla. 96, 104, 9 So.2d 197, 200 (1942), that Court stated:

We are fully aware of the difficulty of fixing with certainty the full cash value of property and the great variance in values set by persons of like experience and judgment, all making estimates conscientiously. Because of this inexactitude considerable leeway should be granted the official whose duty it is to make assessments and because of his position his valuations should not be easily disturbed ....

See also Harbond, Inc. v. Anderson, 134 So.2d 816 (Fla. 2d DCA 1961). The presumption operates to place upon the challenging party the burden of overcoming the appraiser’s preliminary assessment by sufficient and appropriate allegations and proofs excluding every reasonable hypothesis of a legal assessment. Straughn v. Tuck, supra; District School Board of Lee County v. Askew, 278 So.2d 272 (Fla.1973); Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834 (Fla.1970). Conversely, the appraiser’s failure to at least consider the necessary predicates renders his valuation invalid. Straughn v. Tuck, supra; Palm Corporation v. Homer, supra.

Even in the absence of the common law, the Florida Evidence Code, Sections 90.-302(2) and 90.304, Florida Statutes (1977), mandates the result stated above. The Law Revision Council Note to Section 90.-304, Florida Statutes Annotated (1976) includes examples involving acts of public officials. Consequently, even without the historical development of the law in Florida, Sections 90.302(2) and 90.304, supra, would control.

The presumptive validity which has been accorded the appraiser’s preliminary assessment is equally applicable to the Board’s re-evaluation. Bath Club, Inc. v. Dade County, 394 So.2d 110 (Fla.1981); Sanders v. Crapps, 45 So.2d 484 (Fla.1950); Dick v. State ex rel. Harris, 153 So.2d 844 (Fla. 2d DCA 1963). Since as early as Camp Phosphate Co. v. Allen, 77 Fla. 341, 81 So. 503 (1919), it has been the rule that all officers involved in the ad valorem taxation mechanism of state government must properly and even-handedly apply the applicable laws and criteria. In City of Tampa v. Palmer, 89 Fla. 514, 105 So. 115 (1925), the Supreme Court, in considering the Board’s earliest progenitor, the Tax Equalization Board, stated:

The fixing of a valuation upon property by a tax assessor for purposes of taxation, and the equalization thereof by a board of equalization, are administrative acts, involving the exercise of administrative discretion, and a court of equity will not in general control that discretion unless it is illegally or fraudulently exercised or exerted in such manner or under such circumstances as will amount in law to a fraud, [citations omitted]

105 So. at 120. See also Stiles v. Brown, 182 So.2d 612 (Fla.1966).

Implicit in these decisions is that the Board, before overturning, correcting, or equalizing the appraiser’s preliminary assessment, must accord presumptive validity to the preliminary assessment. Fla.Admin. Code Rule 12D-10.03(3); 1972 Op.Att’y Gen.Fla. 072-349 (October 12, 1972). In District School Board of Lee County v. Askew, supra, the Court considered whether the Auditor-General could ignore the presumptive correctness of the preliminary assessment. The Court answered this question in the negative stating:

[t]he State has no power to ignore the presumption of correctness attendant to the official assessments. To rely on the findings of the Auditor-General, as required by Fla.Stat. § 236.07(8), F.S.A., ignoring the official assessments, is to negate the discretion granted to the assessors, the discretion necessary to the job, attendant to all educated estimates, and uniformly recognized in the opinions of this Court. We conclude that a finding by the Auditor-General different from that reached by a county tax assessor is, therefore, insufficient to override the official assessment in the absence of a showing that the official assessment represented a departure from the requirements of law and not merely the differences of opinion to be expected when experts approach the subjective business of assessing property.

278 So.2d at 277. We do not ascribe to the Board the power to arbitrarily override the appraiser where the Supreme Court has denied that right to the Auditor General. Thus, when a taxpayer chooses to challenge the appraiser’s preliminary assessment before the Board, he is required to overcome the presumptive validity in favor of the preliminary assessment.

Where the taxpayer is successful in overcoming this presumption, he must, in order to prevail, additionally present evidence with respect to the just valuation of the property utilizing all the applicable statutory criteria. See § 193.011, supra. The Board is bound by the same standards as the property appraiser in determining just valuation. Fla.Admin.Code Rule 12D-10.-03(1); Art. VII, § 4, Fla.Const.

As a result of the foregoing, when the Board properly overturns the assessor’s preliminary assessment and utilizes all the relevant statutory criteria, it is acting in the same official capacity as was the appraiser. Consequently, the identical public policy considerations exist to accord the Board’s re-evaluation presumptive validity. Bath Club, Inc. v. Dade County, supra, 394 So.2d at 113; Sanders v. Crapps, supra, at 488. If it were otherwise, proceedings before the Board would amount to nothing more than a way station for a disgruntled party en route to circuit court. When the Board’s jurisdiction to review the preliminary assessment is invoked and the Board properly acts, we do not perceive that the Legislature intended that it become a useless act. We observe, as we did with respect to the appraiser, that even in the absence of deci-sional law, Sections 90.302(2) and 90.304, supra, would accord the official acts of the Board presumptive validity.

(b) The Taxpayer in Circuit Court

Whether the Board upholds the appraiser’s preliminary assessment or overturns it, the taxpayer may nonetheless seek review in circuit court. §§ 194.032(6)(b) and 194.-171, supra. This proceeding is a trial de novo, Bath Club, Inc. v. Dade County, supra, rather than an appellate proceeding. See Williams v. Law, 368 So.2d 1285 (Fla.1979). As previously observed, the burden of proof is upon the party initiating the action. § 194.032(6)(c), supra. The de novo provision of the statute does not preclude a presumption from arising in favor of the appraiser or the Board. See Hollywood Jaycees v. Department of Revenue, 306 So.2d 109, 112 (Fla.1975). A trial de novo affords the circuit court judge an opportunity to determine the credibility of the witnesses as well as the weight and sufficiency of the evidence.

If the Board rejects the taxpayer’s challenge and upholds the preliminary assessment, that assessment remains viable and the taxpayer’s challenge in circuit court will be to the preliminary assessment. See Bath Club, Inc. v. Dade County, supra; Calder Race Course, Inc. v. Overstreet, 363 So.2d 631 (Fla. 3d DCA 1978). Where the appraiser has considered the relevant criteria, the taxpayer must overcome the presumptive validity of the appraiser’s preliminary assessment to the exclusion of every reasonable hypothesis of a legal assessment. Straughn v. Tuck, supra; §§ 90.302(2) and 90.304, Fla.Stat. (1977), supra.

On the other hand, where the taxpayer overcomes the appraiser’s presumption before the Board, that re-evaluation replaces the preliminary assessment. The taxpayer’s challenge in circuit court would therefore be to the Board’s re-evaluation. In that posture of the case, the taxpayer must demonstrate: (1) that the Board did not render a proper re-evaluation because the presumptive validity of the initial assessment was not overcome; (2) the Board did not consider the relevant criteria in reaching its re-evaluation, and thus its re-evaluation was vitiated, or a combination of (1) and (2); or (3) the presumptive correctness of the Board’s re-evaluation was overcome by evidence which excludes every reasonable hypothesis of a legal assessment.

(c) The Present Case

Applying the foregoing analysis to the present facts, we conclude that the trial court correctly determined that the burden of proof was satisfied by the greater weight of the evidence.

The Taxpayers challenged the initial appraisal before the Board which reduced it. In circuit court, the Taxpayers, by way of counterclaim, alleged that the preliminary assessment as well as the Board’s reduction were illegal. The Appraiser’s answer to the counterclaim admitted the Board’s reduction was illegal but denied the illegality of its preliminary assessment.

In this case, therefore, any issue with respect to the Board’s reduction was eliminated by the pleadings. Any presumptive validity with respect to the Appraiser’s initial assessment was vitiated by Blake’s own testimony that his office only utilized the “cost approach” in the preliminary assessment of Omni. As a result, the burden of proof was on the Taxpayers — to demonstrate the validity of their claimed valuation by the greater weight of the evidence. In the judgment appealed from, the trial court found that the Taxpayers had prevailed on their counterclaim by the greater weight of the evidence with which we agree.

“Cost Approach” Versus “Income Approach”

Just valuation, as mandated by Article VII, Section 4 of the Florida Constitution, is to be arrived at by the application and consideration of all of the statutory factors delineated by Section 193.011, supra. The actual assessment figure is arrived at by following the “cost approach,” the “market approach,” or the “income or economic approach,” or any combination thereof. The weight given to each of the factors and the reliance on a particular approach is dependent upon the type of property being assessed. The Appraiser points to our decisions in Calder Race Course, Inc. v. Overstreet, supra, and Town of Bay Harbor Island v. Lancelot Associates, 243 So.2d 437 (Fla. 3d DCA 1971) for the proposition that the trial court should have utilized the cost approach in determining the assessment of Omni.

In Town of Bay Harbor Island, the assessment by the appraiser was premised upon a consideration of all of the factors set forth in Section 193.011, supra; however, he determined that an insufficient period of time had elapsed to have warranted utilization of the income approach.

In Calder, we expressly indicated that either the cost approach or the income approach might properly have been utilized. In light of the fact that the race track facilities were “practically new,” the assessment was found to be within the discretionary limits. Therefore, the use of the cost approach in that case was affirmed because of the failure of the taxpayer to sustain his burden of proof of excluding every reasonable hypothesis of a legal assessment.

Although Omni was also practically new, it did have a partial year of operating experience upon which an income approach could be based. Consequently, upon remand, the trial court will be free to accept any approach which is persuasive and meets the constitutional and statutory criteria.

Improper Adjustment for the “Cost of Sales”

The trial court specifically found that upon all the statutory factors required by Section 193.011, supra, the income approach was the proper approach and determined that the assessment of the property as of January 1, 1978 should be $45,000,000. Having opted for the income approach, it nonetheless deducted $2,000,000, finding that “the financing of this venture was grossly unconventional and atypical, and under the provisions of section 193.011(8), Florida Statutes, an allowance should be made for this.” Section 193.011(8), Florida Statutes (1977) provides:

(8) The net proceeds of the sale of the property, as received by the seller, after deduction of all of the usual and reasonable fees and costs of the sale, including the costs and expenses of financing, and allowance for unconventional or atypical terms of financing arrangements.

While this method of valuation must be considered in making an assessment, it is only appropriately used where there has been an actual sale. “Net proceeds” could not otherwise be calculated. Where an actual sale is encountered so that this valuation method is operative; then, under that limited circumstance, an appropriate adjustment should be made for “unconventional or atypical financing” so as to accurately compute just value.

Since no facts were presented to the trial court to indicate that the valuation was based upon a sale so as to activate the application of the “costs of sale” factor, we observe that, upon remand, it would not be appropriate to further reduce the assessment, because of this factor, in order to arrive at the just valuation.

Erroneous Computation of Interest

When the Taxpayers initiated the counterclaim as authorized pursuant to Sections 194.032(6)(b) and 194.171, supra, they tendered to the Tax Collector a good faith payment of the admitted taxes due and owing based upon a $37,000,000 valuation as required by Section 194.171(4), supra. The trial court determined the just valuation of the Omni to be $43,000,000. The Taxpayers were expressly required by the judgment to pay to the Tax Collector taxes on the additional ad valorem value of $6,000,000 with interest to accrue on this deficiency at the rate of eight per cent per annum commencing ten days from date of judgment. This was plain error. Section 194.192(2), Florida Statutes (1977), expressly provides:

(2) If the court finds that the amount of tax owed by the taxpayer is greater than the amount the taxpayer has in good faith admitted and paid, it shall enter judgment against the taxpayer for the deficiency and for interest on the deficiency at the rate of 8 percent per annum from the date the tax became delinquent or from January 1, 1971, whichever is later, . . . [emphasis supplied]

Consequently, upon remand, should the trial court enter a deficiency assessment against the Taxpayers in excess of their good faith payment, interest must be required upon the principal amount of the deficiency at the rate of eight per cent per annum from the date the tax became delinquent.

For the foregoing reasons, the final judgment appealed from is reversed and remanded for proceedings not inconsistent herewith.

DANIEL S. PEARSON, Judge,

joined by HUBBART, Chief Judge, concurring in part.

We concur in all of Judge Nesbitt’s opinion except that part entitled “The Burden of Proof.” As to that portion of the opinion, we entirely agree with it§ conclusion that (1) the trial court erred in placing the burden of proof on the property appraiser as to the taxpayer’s counterclaim, and (2) upon remand of this cause, the taxpayer will have the burden of proving its counterclaim by the greater weight of the evidence, rather than to the exclusion of every reasonable hypothesis of a legal assessment. We disagree, however, with the legal analysis used in reaching this second conclusion. We would, instead, base the second conclusion solely on the ground that the property appraiser did not follow the applicable statute [§ 193.011, Fla.Stat. (1977)] in making his property assessment in this case; for had he done so, the higher burden of proving the counterclaim to the exclusion of every reasonable hypothesis of a legal assessment would, in our view, have remained applicable.

The presumption of validity which we accord to the appraiser’s assessment does not depend on the statutory procedures designed by the Legislature to provide relief to those who deem themselves affected by misappraisals or actions of the Board of Adjustment. Instead, the presumption arises from the proposition that:

“[t]ax assessors are constitutional officers and as such their actions are clothed with the presumption of correctness. One asserting error on the part of the tax assessor must show by ‘proof’ that every reasonable hypothesis has been excluded which would support the tax assessor.” Straughn v. Tuck, 354 So.2d 368, 371 (Fla.1978).

The reason for indulging the presumption in all instances when the appraiser has satisfied the necessary predicates is rooted in sound public policy.

“The fixing of a valuation on property by a tax assessor for the purpose of taxation is an administrative act involving the exercise of administrative discretion, and the Court will not in general control that discretion unless it is illegally or fraudulently exercised or exerted in such manner or under such circumstances as will amount in law to a fraud. A situation might be presented for judicial interference where specific assessment is so obviously and flagrantly excessive as to impute clearly to the assessor an intention to discriminate arbitrarily against the taxpayer; or where there appears prejudicial or material error in matter of law, independent of the exercise of a discretion as to value. But mere excessive valuation, resulting solely from inadvertence or mistaken judgment, and unaffected by any element of illegality in matter of law, or intentional or other abuse of authority, or fraud, express or implied, will not suffice as a ground of equitable jurisdiction.” Powell v. Kelly, 223 So.2d 305, 307 (Fla.1969) (citation omitted).

The presumption is a recognition of “the difficulty of fixing with certainty the full cash value of the property and the great variance in values set by persons of like experience and judgment, all making estimates conscientiously,” Sehleman v. Connecticut General Life Insurance Company, 151 Fla. 96, 104, 9 So.2d 197, 200 (1942). By placing upon a challenger to the property appraiser’s assessment the burden of overcoming the assessment by proof which excludes every reasonable hypothesis of a legal assessment, we effectively deter litigation over minor disagreements in valuation and keep the courts out of the business of property valuation where the appraiser has conscientiously done his job as prescribed by Section 193.011.

Moreover, the presumption in favor of the validity of the property appraiser’s assessment is unaffected by the fact that the burden of proof in the Circuit Court is upon the party initiating the action and that an appraiser may, by virtue of a recent change in the law, initiate the action. While the appraiser, if the initiator of, or counter-claimant in, the Circuit Court proceedings, will have the burden of proof on his claim or counterclaim, that burden is to convince the fact-finder of the correctness of the assessment made by him. If his assessment was not made in substantial compliance with Section 193.011, it is viewed as any other assessment, accorded the weight to which it is entitled, and the property appraiser, thereafter, with this and other evidence, has the burden of proving his claim by the greater weight of the evidence. But if the property appraiser shows that his assessment was made in substantial compliance with Section 193.011, then the burden shifts to the taxpayer, not merely to establish that the taxpayer’s evidence as to valuation of the property is more convincing than the property appraiser’s, but rather to overcome the property appraiser’s assessment by excluding every reasonable hypothesis of a legal assessment.

To accord presumptive correctness to the Board of Adjustment valuation would effectively vitiate the presumptive correctness accorded the property appraiser’s assessment. If the presumptive correctness of a property appraiser’s assessment made in substantial compliance with Section 193.011 were said to be replaced by a different valuation placed on the property by a Board of Adjustment, then a taxpayer would be relieved of his burden to overcome the appraiser’s presumptively correct assessment by using the Board of Adjustment as a mere way station to the Circuit Court and there merely to show that his valuation should be preferred over that of the property appraiser. And in a case where a Board of Adjustment has unjustly failed to accord presumptive correctness to a property appraiser’s assessment and the appraiser takes remedial action in the Circuit Court, the appraiser would be deprived of the presumption by the arbitrary action of the Board. The public policy which underlies the acceptance of a property appraiser’s conscientiously made assessment and places upon the taxpayer the heavy burden of excluding every reasonable hypothesis of a legal assessment cannot be eroded so easily. Therefore, we emphasize that the presumption of correctness in favor of the property appraiser’s assessment is lost only when, as here, the appraiser disentitles himself to this presumption by failing to substantially comply with Section 193.011.

Lastly, because the very nature of the proceeding in the Circuit Court is de novo, there is no presumption of correctness which attaches to the valuation made by the Board of Adjustment., However, the fact that the valuation placed on the property by the Board of Adjustment has no presumptive effect in the de novo proceeding in the Circuit Court does not make the role of the Board meaningless. First, a taxpayer desiring to challenge his ad valo-rem real property tax assessment may avail himself of the opportunity to be heard at the administrative level of the Board without undertaking, as he initially might, see Sections 194.032(3) and 194.171, Florida Statutes (1977), a more costly and time-consuming action in the Circuit Court. Bath Club, Inc. v. Dade County, 394 So.2d 110, 114 n. 13 (Fla.1981). If the taxpayer obtains a satisfactory reduction from the Board of Adjustment and the variance from the property appraiser’s assessed value is within the parameters of Section 194.-032(6)(a)2, Florida Statutes (1977), so as to preclude the appraiser from bringing suit in the Circuit Court, then the taxpayer has been accorded speedy and unassailable relief at the administrative level. In such a case, the Board has accomplished the valuable purpose of resolving an obviously minor disagreement. If the taxpayer obtains less of a reduction than he believes he deserves and, again, the variance from the property appraiser’s assessed value is within the parameters of Section 194.032(6)(a)2, Florida Statutes (1977), the taxpayer may institute a de novo proceeding in the Circuit Court without jeopardizing his administrative gain. In such an instance, the Board’s decision, while not a total resolution of the dispute, serves the function of establishing the benchmark above which the Circuit Court cannot go. This is so because the tax appraiser may not counterclaim in the taxpayer’s action unless the threshold percentages of Section 194.032(6)(a)2 are met. The tax appraiser’s assessment in such an action can serve only to defeat the taxpayer’s claim for further relief, not to provide affirmative relief to the appraiser. The only instance where the Board’s valuation is meaningless is one in which the variance made by the Board is large enough to allow the appraiser to initiate an action or counterclaim in the Circuit Court, and the appraiser avails himself of that statutory right. In this instance, the Board has neither resolved a dispute nor established a benchmark, and the Circuit Court litigation will proceed as any other original litigation, unaffected by the results of the administrative resolution. In our view, the Legislature, by providing that the Circuit Court proceeding be de novo, intended it to be no other way.

      . 194.032 HEARING COMPLAINTS.—

      (6) Appeals of the board’s decision shall be as follows:
      (а) If the property appraiser disagrees with the decision of the board, he may appeal the decision to the circuit court if one or more of the following criteria are met:
      1. The property appraiser determines and affirmatively asserts in any legal proceedings that there is a specific constitutional or statutory violation, or a specific violation of administrative rules, in the board’s decision, except that nothing herein shall authorize the property appraiser to institute any suit to challenge the validity of any portion of the Constitution or of any duly enacted legislative act of this state;
      2. There is a variance from the property appraiser’s assessed value in excess of the following: 15 percent variance from any assessment of $50,000 or less; 10 percent variance from any assessment in excess of $50,-000 but not in excess of $500,000; 7V2 percent variance from any assessment in excess of $500,000 but not in excess of $1,000,000; or ....

      . 194.032 HEARING COMPLAINTS.—

      (б)(b) Any taxpayer may bring an action to contest a tax assessment pursuant to s. 194.-171.
      194.171 CIRCUIT COURT TO HAVE ORIGINAL JURISDICTION IN TAX CASES.—
      (1) The circuit courts have original jurisdiction at law of all matters relating to property taxation. Venue is in the county where the property is located.
      (2) No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2).
      (3) Before a taxpayer may bring an action to contest a tax assessment, he shall pay to the collector the amount of the tax which he admits in good faith to be owing. The collector shall issue a receipt for the payment, and the taxpayer shall file the receipt with his complaint.
      (4) No action to contest a tax assessment may be maintained unless all taxes on the property which the taxpayer in good faith admits to be owing, including taxes assessed in years after the action is brought, are paid before they become delinquent.
      (5) Pending actions to contest tax assessments shall be dismissed unless the taxpayer shall have paid to the collector all taxes on the property which he in good faith admits to be owing, including taxes assessed in years after the action is brought.
      (6) The clerk of the circuit court shall, after deducting his statutory fee, pay to the collector all taxes which have been admitted to be due and have been deposited in the registry of the court in connection with pending actions to contest tax assessments.

      . 193.011 FACTORS TO CONSIDER IN
      DERIVING JUST VALUATION. — In arriving at just valuation as required under s.4, Art. VII of the State Constitution, the property appraiser shall take into consideration the following factors:
      (1) The present cash value of the property, which is the amount a willing purchaser would pay a willing seller, exclusive of reasonable fees and costs of purchase, in cash or the immediate equivalent thereof in a transaction at arm’s length;
      (2) The highest and best use to which the property can be expected to be put in the immediate future and the present use of the property, taking into consideration any applicable local or state land use regulation and considering any moratorium imposed by executive order, law, ordinance, regulation, resolution, or proclamation adopted by any governmental body or agency or the Governor when the moratorium prohibits or restricts the development or improvement of property as otherwise authorized by applicable law;
      (3) The location of said property;
      (4) The quantity or size of said property;
      (5) The cost of said property and the present replacement value of any improvements thereon;
      (6) The condition of said property;
      (7) The income from said property; and
      (8) The net proceeds of the sale of the property, as received by the seller, after deduction of all of the usual and reasonable fees and costs of the sale, including the costs and expenses of financing, and allowance for unconventional or atypical terms of financing arrangements.

      . The propriety of using the income approach for a new property is discussed infra.

      . Similarly, when comparable sales are considered in reaching a just valuation, a sale after January 1 of the taxable year may be relevant. Here, the Taxpayers’ appraiser readily conceded that he used the comparable sale of the Sheraton Four Ambassadors in March of 1978. The rationale behind the use of such evidence is that a sale of this size is negotiated over a long valuation as of January 2. Of course, the further the sale is away from January 1, the less probative it may become.
      In Southern Bell Telephone and Telegraph Company v. County of Dade, 275 So.2d 4 (Fla. 1973), the taxpayer introduced into evidence sales ratio studies based upon comparable sales occurring through June 30 of the taxable year. Because the opinion does not reflect an objection to the admission of that testimony, that case is merely persuasive support for the use of comparable sales after January 1.

      . The July 1 date is not a fixed point because Section 193.023, Florida Statutes (1977) authorizes the Department of Revenue to give an extension to the appraiser to complete the tax ' rolls.

      . We noted, at the outset, that the trial judge considered all the evidence in its entirety in rendering a decision upon the counterclaim. Having done so, he was not free to exclude the Appraiser’s testimony given during the case in chief.

      . For the geneology tracing the present Board back to its earliest progeny, see Bath Club, Inc. v. Dade County, supra.

      . Rules and regulations of an administrative agency made under the power conferred by the statute have the force and effect of the statute if made within the scope and intent of the authority conferring them. Florida Livestock Board v. W. G. Gladden, 76 So.2d 291 (Fla. 1954).

      . A taxpayer is not required to seek review before the Board. See §§ 194.032(3) and 194.-171, Fla.Stat. (1977). In lieu of this, a taxpayer may directly challenge the appraiser’s preliminary assessment in circuit court. § 194.171, supra.

      . With the inception of Section 194.032(6) [Ch. 76-234, Laws of Florida, effective July 1, 1976], the Legislature inaugurated a change by permitting the property appraiser, under the limited and defined circumstances of Section 194.032(6)(a), supra, to judicially challenge the Board’s reassessment in circuit court. In the present case, the Appraiser initiated a challenge in circuit court and was unsuccessful. Because he did not appeal the denial of relief, we need not consider the mechanism by which the Tax Appraiser may challenge the Board’s re-evaluation.

      . This section is reproduced in full in n.2, supra.

      . The property appraiser must consider each of the factors enumerated in Section 193.011, see n. 3, supra, but is free to assign to each factor such weight as he deems proper. Straughn v. Tuck, 354 So.2d 368 (Fla.1978); Atlantic International Investment Corporation v. Turner, 383 So.2d 919 (Fla. 5th DCA 1980).

      . Since in the present case the tax appraiser does not seek review of the denial of relief in the lawsuit initiated by him, were the Circuit Court upon remand to be persuaded that the appraiser’s $68,251,535 assessment is correct, it could not, of course, fix that as the proper valuation, but would be limited to denying relief to the taxpayer on its counterclaim seeking a reduction of the $59,560,000 fixed by the Board of Adjustment. This limitation does not come about because of any presumptive correctness in the Board’s determination, but rather because here the appraiser has now accepted the Board’s determination, and, in other cases, because the Board’s determination may be immune from challenge by the appraiser. See § 194.032(6)(a)2 (allowing the appraiser to bring an action only where the Board has reduced the appraiser’s assessment in excess of the percentages specified in the statute).

      . Judge Nesbitt’s view that the Board’s reevaluation replaces the appraiser’s assessment leads him to the further view that a party’s burden in the Circuit Court is to demonstrate some error committed by the Board. This view would change the nature of the Circuit Court proceedings from de novo to classic certiorari.

      . Where a statute vests jurisdiction in the Circuit Court to conduct a review or hear an appeal de novo, rules of ordinary appellate proceedings do not apply. Compare State ex rel. Baggs v. Frederick, 124 Fla. 290, 168 So. 252 (1936), with State ex rel. Nichols v. Bullock, 58 Fla. 534, 50 So. 418 (1909).

      . Bath Club, Inc. v. Dade County, 394 So.2d 110 (Fla.1981), gives no such presumption to the Board’s valuation. The statement in Bath Club, Inc. that “[pjublic officials are presumed to perform their duties in a proper and lawful manner” was in response to the taxpayer’s claim that the Board’s makeup was inherently biased and the Board incapable of an impartial decision.

      .Since the appraiser in the present case has abandoned his appeal on his initial claim, the effect of this abandonment is to make the Board’s valuation the benchmark above which the Circuit Court may not go when this case is remanded to it.


source: Caselaw Access Project

author: PER CURIAM. PER CURIAM.

license: Public Domain

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. The LASKY BABY, Appellee.
    No. AJ-58.
    District Court of Appeal of Florida, First District.
    April 7, 1982.
    Rehearing Denied July 2, 1982.
    Jon W. Searcy, Dist. One Legal Counsel, Dept, of Health and Rehabilitative Services, Pensacola, for appellant.
    Siegfried F. Kessler of Smith, Grimsley, Remington, Kessler & Simpson, Fort Walton, for appellee.
   PER CURIAM.

The Department of Health and Rehabilitative Services (HRS) seeks review of an interlocutory order denying its motion to vacate a previously entered order awarding Mr. and Mrs. Henschel temporary custody of a premature infant. HRS seeks temporary custody and delivery of the infant to the Department.

We consider the order entered on August 4, 1981 an order for the temporary custody of the child rather than a placement for adoption. Because that order is an accomplished fact which cannot be undone without harm to the child and given the peculiar circumstances of the case, we affirm, although we must disapprove of the procedure followed. HRS is equipped to effectively respond to the situation which arose and should have been consulted at the outstart.

The trial court’s order required the Hen-schels to institute adoption proceedings, and there is indication in the record that a petition has been filed which remains to be processed by HRS. An investigation should be done as expeditiously as possible under the assumption that the Henschels have submitted themselves and the child to the continuing jurisdiction of the Florida courts and to the supervision of HRS.

ROBERT P. SMITH, Jr., C. J., and McCORD and BOOTH, JJ., concur.

ON PETITION FOR REHEARING AND/OR CLARIFICATION

PER CURIAM.

This court’s opinion dated April 7, 1982, is clarified to the extent provided herein. In all other respects, HRS’s Petition for Rehearing and/or Clarification is denied.

Pursuant to Section 63.122, Florida Statutes, HRS is charged with the duty of conducting an investigation to ascertain whether the adoptive home is a suitable home for, and the proposed adoption is in the best interests of the minor. Subsection (8) of that provision gives the Department the authority to request other departments or agencies without this state to make investigations of designated parts of the inquiry and to make a written report to the Department. Sections 63.122(5) & (8), Florida Statutes, are, in pertinent part, as follows:

(5) An investigation shall be made by the agency or by the department to ascertain whether the adoptive home is a suitable home for the minor and the proposed adoption is in the best interest of the minor.
(8) The department or the agency making the required investigation may request other departments or agencies within or without this state to make investigations of designated parts of the inquiry and to make a written report to the department or agency, (emphasis added)

Because the best interest of the child is of paramount concern, the spirit of cooperativeness between party states or agencies permeates the Interstate Compact on the Placement of Children. Article I of the Interstate Compact on the Placement of Children, Section 409.401, Florida Statutes; see also Interstate Compact on the Placement of Children, Secretariat Opinion 16 (May 16,1975). The provisions of the Compact empower officers and agencies in party states to contract for the performance of one or more services by an authorized agency of the receiving state as an agent for the sending agency. Article V of the Interstate Compact on the Placement of Children, Section 409.401, Florida Statutes; Section 409.-404, Florida Statutes.

Accordingly, we conclude that HRS’s contention that it is without authority to provide supervision for, and to conduct an investigation of the Hensehels is superficial and without merit. HRS is hereby directed to exercise the full scope of its power to assure that a home evaluation for purposes of adoption is rendered and that the child is adequately supervised until the adoption is finalized.

ROBERT P. SMITH, Jr., C. J., and McCORD and BOOTH, JJ., concur.


author: COWART, Judge. SHARP, Judge, DAUKSCH, Chief Judge,

text:
    MINNESOTA MUTUAL LIFE INSURANCE COMPANY, a foreign corporation, Appellant, v. Susan K. CANDELORE, Appellee.
    No. 81-493.
    District Court of Appeal of Florida, Fifth District.
    May 26, 1982.
    Rehearing Denied July 27, 1982.

      Ronald L. Harrop of Gurney, Gurney & Handley, P. A., Orlando, for appellant.
    Herbert H. Hall, Jr. and Ronald J. Langa of Maher, Overchuek, Langa & Cate, P. A., Orlando, for appellee.
   COWART, Judge.

This is an action on a life insurance policy in which the defendant insurance company asserted the defense of a material misrepresentation in the application for the policy. The jury found against the insurance company, which appeals the denial of its motions for directed verdict made during the trial and its subsequent motion for a judgment non obstante veredicto.

The substantial uncontradicted evidence clearly established that the insured consulted two physicians during the month immediately preceding his application for insurance, yet in the application he denied having consulted any physician during the preceding three years. Appellee argues that whether the misrepresentation was material is a question of fact for the jury which was resolved in appellee’s favor. However, the evidence is also uncontradicted that, had the question been truthfully answered, as a matter of the insurance company’s standard business practice and guidelines, the application would not have been summarily approved by a group administration unit, but would have been passed on to a group underwriting department. The underwriting department would have investigated the doctor’s reports, which would have revealed that the applicant had suffered a quick on-set of sclerodactylia and that, while that condition may or may not have lead to scleroderma, a life-threatening disease, the insurance company would not at that time have approved the application and issued the policy. Under these circumstances, courts have generally found that the misrepresentation was material as a matter of law. Appellant’s motions for a disposition of the question of the misrepresentation and its materiality by the trial court as a matter of law should have been granted under the facts of this case. Accordingly, the final judgment is

REVERSED and the cause remanded for entry of judgment in favor of appellant.

SHARP, W. J., concurring and concurring specially, with opinion.

DAUKSCH, C. J., dissenting with opinion.

SHARP, Judge,

concurring and concurring specially.

I concur with the majority opinion in this case because the key factor in determining the “materiality” of Candelore’s misrepresentation was whether the insurance company would have found the true facts relevant or material in deciding whether or not to insure, or at what price. Garwood v. Equitable Life Assurance Society of the United States, 299 So.2d 163 (Fla. 3d DCA 1974), cert. denied, 321 So.2d 553 (Fla.1975). In this case the evidence was uncontradict-ed that the insurance company would have made inquiry about the office visits and it would have learned about Candelore’s quick on-set of sclerodactylia. Having learned that, the medical director for the insuror testified without any contradiction or rebuttal, that at best, he would have advised delaying the issuance of the policy for two or three years, in order to be certain the condition did not progress to the rare but life threatening disease to which Mr. Candelore unfortunately succumbed. There was no evidence offered to show the company would have then insured Candelore once the company knew of the diagnosis of scler-odactylia and that is why his misrepresentation was material as a matter of law.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. In my view the evidence before the jury in this case was such that we cannot say, as a matter of law, the appellee was not entitled to a judgment on the verdict. The jury had evidence from which it could have concluded, and apparently did conclude that the alleged misrepresentation was not material. I agree with the holding in the Beneby v. Midland National Life Insurance Company, 402 So.2d 1193 (Fla. 3d DCA 1981) case which says “the general rule is that factual issues pertaining to misrepresentations on an application for insurance are properly within the province of the trier of fact.” None of the cases cited in the majority opinion hold otherwise.

The verdict of the jury and the judgment of the trial judge come to this court presumed correct. We cannot properly disturb the lower court judgment unless there is a total lack of evidence to support the verdict and judgment. Helman v. Seaboard Coast Line Railroad Company, 349 So.2d 1187 (Fla.1977); Commercial Credit Corp. v. Varn, 108 So.2d 638 (Fla. 1st DCA 1959). The jury and the trial judge are in a much better position to evaluate the evidence than we are.

The evidence must be viewed in a light most favorable to the verdict. This means most favorable to the appellee. All reasonable inferences will be drawn from the evidence in favor of the party who has convinced the jury. Underwriters Nat’l Assurance Co. v. Harrison, 338 So.2d 58 (Fla. 3d DCA 1976); Graves v. Wiggins, 257 So.2d 268 (Fla. 3d DCA 1972); Krasny v. Richter, 211 So.2d 612 (Fla. 3d DCA 1968). This is especially true where that convincing party was the plaintiff who had to prove her case by a preponderance of the evidence.

The evidence showed that Joseph Cande-lore was a man of thirty-five years, happily married, a father of two children and expecting a third. He owned and operated a heating and air conditioning business and worked long hours performing manual labor pursuing his livelihood. In June of 1978 he noticed that his hands and feet had become puffy and that he was losing a bit of his grip. He consulted a doctor who suspected “impending collagen vascular disease,” a very serious and possibly life-threatening condition. The doctor ordered tests done to seek evidence of a collagen vascular disease. The test results were “normal,” the doctor did not make a diagnosis and referred Joseph to a rheumatologist who determined Joseph had sclerodactylia, a thickening of the skin on the fingers. It is not a disease, but a symptom. It can be an indication the fingers perform hard manual labor or a symptom the person has a collagen vascular disease known as sclero-derma. It is difficult to diagnose scleroder-ma but it usually exhibits additional symptoms such as gastrointestinal and urinary dysfunction. Only five or six percent of persons showing sclerodactylia ultimately are diagnosed as suffering from scleroder-ma. The great majority have other, non-life-threatening diseases but those who have scleroderma often die from the collagen vascular disease.

After visiting the two physicians in June there was no recommendation that Joseph receive any treatment and no recommendation for any further investigation.

Because Mr. and Mrs. Candelore had just purchased a condominium they sought a “mortgage life” policy from the appellant in July, a couple of weeks after Joseph had last visited the specialist. Among the questions on the application for life insurance was:

During the last three years, have you been hospitalized or have you consulted a physician or physicians for any reasons?

Joseph answered no to this question. Of course it is untrue and thus a “misrepresentation.” The ultimate question is whether it is a material misrepresentation which permits the insurance company to avoid payment of the insurance proceeds upon the death of the insured. The jury decided it was not a material misrepresentation and did so probably upon the basis that at the time the application was filled out there was no indication that Joseph suffered from any disease, that all tests seeking evidence of disease showed “normal” findings and thus even if the company had known of the visits it would have issued the policy. Most assuredly there is evidence to the contrary on behalf of the appellant’s position. But there was also evidence that the company’s underwriting guidelines would have permitted the issuance of the policy with no increased rate or other restrictions. It is that evidence to which we are bound because it is what the jury must have regarded most favorably. Apparently, the plaintiff (appel-lee) was able to convince the jury that even if Joseph had answered the question truthfully the policy would have been issued. This, then, is a finding that the misrepresentation lacked materiality. If the same policy at the same rate would have been issued with knowledge of the true fact then the misrepresentation is immaterial. It is significant to me, and I am sure it was to the jury, that “sclerodactylia” is not listed in the underwriter’s manual. Perhaps that along with the evidence that “localized scleroderma” is not a condition which would prevent the issuance of a policy caused the jury to determine as it did. There is other evidence of a rather technical nature which favors the verdict.

Upon a consideration of all of the evidence I am bound to conclude the jury was within lawful limits in reaching its verdict. The fact that I might have found otherwise is legally unavailing to the appellant.

      . See § 627.409(l)(b), Fla.Stat. (1979); World Ins. Inc. v. Posey, 227 So.2d 67 (Fla. 4th DCA 1969); Douglas v. Mutual Life Ins. Co. of N. Y., 191 So.2d 483 (Fla. 2d DCA 1966).

      . Materiality of a fact, in insurance law, is somewhat subjective and relates to what the fact reasonably and naturally means to the insurer as a practical matter of probability at the time of acceptance of the risk and not to what, after the event, a jury might consider as being unreasonable or as to not being an actual causal connection between the fact and the risked event.

      . See, e.g., Life Ins. Co. of Virginia v. Shifflet, 201 So.2d 715 (Fla.1967); Thompson v. New York Life Ins. Co. 143 Fla. 534, 197 So. 111 (1940) (civil court of record entered judgment on a verdict for insured, circuit court reversed judgment and adjudged as a matter of law that the insured was not entitled to recover judgment, affirmed on appeal to the Florida Supreme Court); New York Life Ins. Co. v. Nespereira, 366 So.2d 859 (Fla. 3d DCA 1979) (judgment for insured reversed on appeal); Garwood v. Equitable Life Assurance Society of U. S., 299 So.2d 163 (Fla. 3d DCA 1974), cert. denied, 321 So.2d 553 (Fla.1975) (summary judgment for insurer affirmed); Varelas v. Blue Cross of Florida, Inc., 277 So.2d 561 (Fla. 3d DCA 1973) (trial judge, who had previously reserved ruling, directed verdict for insurance company after jury verdict for insured, affirmed on appeal); Kelly v. Prudential Ins. Co. of America, 224 So.2d 435 (Fla. 2d DCA 1969) (summary judgment for insurer affirmed).


author: PER CURIAM.

text:
    FLORIDA AGRICULTURAL RESEARCH INSTITUTE, a Florida corporation; Atlantic Fertilizer and Chemical Company, a Florida corporation; Ben Hill Griffin, Inc., Fertilizer Division, a Florida corporation; Columbia Nitrogen Corp., a foreign corporation authorized to do business in Florida; Consolidated Chemicals, Inc., a Florida corporation; Diamond R Fertilizer Co., Inc., a Florida corporation; Estech General Chemicals Corporation, a foreign corporation authorized to do business in Florida; Florida East Coast Fertilizer Company, a Florida corporation; Florida Favorite Fertilizer, Inc., a Florida corporation; Florida Fertilizer Co., Inc., a Florida corporation; Flo-Chem, Inc., a Florida corporation; Foremost Fertilizer Company, a Florida corporation; Gro-Mor Company, Inc., a Florida corporation; Growers Fertilizer Cooperative, a Florida corporation; Hi-Acres, Fertilizer Division, a Florida corporation; Howard Fertilizer Co., Inc., a Florida corporation; International Minerals and Chemical Corporation, a foreign corporation authorized to do business in Florida; Lykes Pasco Packing Company, a Florida corporation; Marico Fertilizer, Division of Seminole Stores, Inc., a Florida corporation; Polk County Fertilizer Co., a Florida corporation; Producers Fertilizer Company, a Florida corporation; Producers Manufacturing Corporation, a Florida corporation; Ranch Fertilizer Company, Incorporated, a Florida corporation; Ridge Fertilizer Company, a Florida corporation; Shore Fertilizer Company, a Florida corporation; South Lake Apopka Citrus Growers Association, a Florida corporation; Sunniland Corporation, a foreign corporation authorized to do business in Florida; Superior Fertilizer & Chemical Company, a Florida corporation; W. R. Grace & Company, a foreign corporation authorized to do business in Florida; Wedgworth’s, Inc., a Florida corporation; Wheeler Fertilizer Company, Division of Nelson & Co., Inc., a Florida corporation, Appellants, v. FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 81-1519.
    District Court of Appeal of Florida, Second District.
    May 26, 1982.
    As Amended on Denial of Rehearing July 21, 1982.

      Edward P. de la Parte, Jr. of de la Parte & Butler, P. A., Tampa, for appellants.
    Frank A. Graham, Jr., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from an order upholding certain rules promulgated by the Florida Department of Agriculture and Consumer Services (Department) involving methods for sampling commercial fertilizer.

The majority of fertilizer produced in Florida is bulk mixed fertilizer. This type of fertilizer is produced by blending various ingredients according to a prescribed formula called a “guaranteed analysis.” This process is initiated by consumer requests for fertilizer of a specific guaranteed analysis. After receiving this request, the ingredients are obtained from storage bins and blended in a mixer. The finished product is then loaded onto trucks for transportation to the consumer’s field.

The Department’s division of inspection performs the function of sampling commercial fertilizer sold or offered for sale within Florida under the provisions of chapter 576, Florida Statutes, and rules adopted by the Department. Fertilizer samples are taken either at the manufacturing plant or in the field by division inspectors utilizing standard procedures set forth in the Department’s rules. The samples are then analyzed to determine if the fertilizer is within a permitted range of tolerance from the guaranteed analysis. When samples show a deficiency in a fertilizer ingredient below the applicable tolerance, the Department is authorized to assess penalties payable by the seller to the consumer.

Prior to 1971, official samples of bulk mixed fertilizer were only taken from the conveyor belt at the plant with tools authorized by then existing rules. In that year, the Department adopted rules for taking samples in the field through the use of the Missouri D probe, and because it was recognized that there was more possibility of an error by sampling in the field, the tolerances were increased for field sampling. In 1980 the appellants, comprising thirty fertilizer manufacturers and their industry representatives, filed a petition with the Division of Administrative Hearings challenging the validity of the rules which authorized the use of the Missouri D probe and the tolerance tables. The appellants pointed out that since 1976 the Department had annually assessed penalties against them through the use of the questioned sampling procedure which totalled more than $400,000 a year. Following a hearing, the division’s hearing officer entered a comprehensive order denying the appellants’ claims.

The enabling legislation for the rules in question is chapter 576, Florida Statutes. Section 576.051(7), Florida Statutes (1979), states:

(7) In drawing any official sample and in making any analysis the officially adopted methods and terminology of the Association of Official Analytical Chemists shall be used. In cases not covered by such officially adopted methods and terminology, the department shall, as soon as practicable, adopt and publish appropriate methods and terminology. In any instance in which the officially adopted methods and terminology of the Association of Official Analytical Chemists are not applicable to conditions, circumstances, or cases in the state, then the department shall, with the approval of the technical council, adopt by regulation methods and terminology which shall be official in the state.

Appellants concede the validity of a statute requiring an agency to promulgate the standard of another entity as its own but emphasize that the agency may only adopt those standards which were in existence at the time the statute was enacted. See Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976); Florida Industrial Commission v. State, 155 Fla. 772, 21 So.2d 599 (1945). Appellants point out that section 576.051(7) became effective on January 1. 1966, but the Missouri D probe was not adopted as an official sampling tool by the Association of Official Analytical Chemists until 1967. Therefore, they contend that the Department’s rules which adopted the Missouri D probe in 1971 constituted an unlawful delegation of legislative authority.

We reject this contention. In 1971 the Department decided to institute field sampling. Accepting appellants’ argument that it had no authority under the first sentence of subsection (7) to adopt the AOAC approved method of using the Missouri D probe, the Department was left with the alternative of selecting its own method for field sampling under the balance of the subsection. The Department decided to adopt the Missouri D probe as its own field sampling method, and the fact that the AOAC had adopted the same method subsequent to January 1,1966, was irrelevant. Moreover, any existing deficiencies in the standards were cured by the passage of Chapter 76-35, Laws of Florida, in which the legislature made substantial revisions in chapter 576 effective on January 1, 1977. This had the effect of updating the provisions of section 576.051(7) to include officially adopted methods of the AOAC as of January 1, 1977. State v. Rodriguez, 365 So.2d 157 (Fla.1978). Thereafter, there could be no doubt of the Department’s authority to prescribe the use of the Missouri D probe.

To follow appellants’ next argument, it is necessary to understand that the ingredients in most Florida bulk mixed fertilizers segregate when they are physically handled. This phenomenon occurs because the ingredients are composed of nonuniform size particles. As long as the fertilizer is sampled from the conveyor belt in the plant, the tolerance tables adequately compensate for any error in sampling. However, when the fertilizer is poured into the trucks, it forms conical piles in which the larger particles fall away to the side and the smaller particles remain in the middle. There is evidence that the segregation caused by coning could be alleviated if the manufacturers utilized relatively inexpensive deconing equipment at the time the trucks are loaded, but they have not chosen to do so. In any event, some further segregation can occur during transportation so that by the time the fertilizer reaches the field, there is an increased possibility of sampling error. Appellants admit that the Missouri D probe is the best scientific tool available for making field samples. They argue, however, that because of the high incidence of inaccuracy, the continued use of the Missouri D probe for field sampling is arbitrary and capricious.

In essence, appellants are seeking an end to field sampling on the premise that it is impossible to obtain totally accurate samples under existing technology. The Department responds that by limiting its sampling to the manufacturing plant, it cannot insure that the consumer will ultimately receive in the field a uniformly blended product. Upon consideration, we find competent and substantial evidence to support the hearing officer’s conclusion that while the Missouri D probe is not one hundred percent accurate, the Department’s expanded tolerance tables adequately compensate for such errors as occur in field sampling. See S. H. Goss, Inc. v. Pennsylvania Department of Agriculture, 58 Pa.Commw. 516, 428 A.2d 731 (1981) (fertilizer sampling methods upheld against a constitutional attack that they were inherently inaccurate).

Finally, appellants assail the tolerance tables themselves because the permitted deviations in nutrient percentages are set forth in steps rather than on a smoothly graduated basis, thereby permitting certain inaccuracies, either upward or downward, to occur when the guaranteed nutrient percentages fall at the extreme ends of the steps. The standard for measuring the validity of these tables is whether they are arbitrary or capricious. See Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978). We cannot say that upon the evidence before him, the hearing officer erred in determining that the appellants failed to carry the burden of their attack. The tolerances were only adopted after appropriate study and upon the recommendation of the Fertilizer Technical Council. They closely parallel the tolerances recommended by the Association of American Plant Food Control Officers. The fact that refinements in the table could alleviate some inaccuracies which may occur under certain circumstances does not warrant striking down the tables in their entirety.

The balance of appellants’ contentions are without merit and need not be discussed.

AFFIRMED.

BOARDMAN, A. C. J., and GRIMES and RYDER, JJ., concur.

      . Fla.Admin.Code Rules 5E-1.09(l)(c), 5E-L-09(2)(c), and 5E-1.11(1).

      . Following the enactment of chapter 76-35, the Department amended its fertilizer rules as of January 1, 1977, but retained the use of the Missouri D probe for field sampling.

      . Appellants suggest that chapter 76-35 did not indicate a clear legislative intent to update the testing standards because it only altered subsection (7) to reflect a change of name in the testing organization. To the contrary, chapter 76-35 made significant changes in the regulation of fertilizer sales, and the insertion of the new name of the testing organization constituted a legislative recognition of the ongoing work of that organization in adopting new testing methods. In any event, if chapter 76-35 were deemed insufficient as a legislative update, there would be no AOAC approved method for field sampling within the contemplation of section 576.051(7) so the Department’s designation of the Missouri D probe as its own sampling method would continue to be valid.

      . Section 576.051, Florida Statutes (1979), directs the Department to establish tolerances.


author: BARKDULL, Judge.

text:
    Edgar CADAVID, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1725.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Rehearing Denied July 15, 1982.

      Lance R. Stelzer, Miami, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   BARKDULL, Judge.

This is an appeal by Edgar Cadavid of a final judgment which adjudicated him guilty of the following charges with accompanying sentences: Attempted first degree murder with a firearm (life imprisonment); burglary of a structure while armed (life imprisonment — consecutive to Count II); unlawful possession of a machine gun (five years consecutive to Count III); and unlawful possession of a firearm while engaged in criminal offense (five years concurrent with Count IV, but consecutive to Count III).

All of the charges arose from a shooting incident. The deceased and the prosecution’s material witness, Jorge Piza, shared an apartment in Miami Springs. The defendant, together with his co-defendant, entered the apartment of the deceased carrying an automatic pistol and submachine gun. A struggle ensued, which ended with the deceased being killed and the material witness wounded.

The trial court set a $500,000.00 bond on the material witness because he was a witness to the murder. A subsequent hearing was held as to Piza’s status as a material witness. The State presented the testimony of the detective in charge of the case as to why the bond should be maintained against Piza. Defense counsel was not permitted to cross-examine the detective. The trial court reduced the bond to $10,000.00. The State, while the witness was still in jail, was granted by motion the right to take deposition to perpetuate the testimony of Piza. The deposition was taken seven months prior to trial. By trial, defense counsel learned information about the material witness which could impeach his credibility at trial, i.e., Piza has been arrested numerous times. Just prior to trial, the court granted the State’s request to permit the investigating detective to be allowed to remain in the courtroom throughout the trial, notwithstanding the invocation of the witness rule. The State was also permitted to use the material witness’ (Piza’s) videotaped deposition in lieu of a personal appearance because the witness was not available.

The defendant urges that the trial court erred (1) in admitting the videotaped deposition of the material witness, because the State had not made a diligent effort to find this witness; (2) in not permitting cross-examination of the material witness by defense counsel at the hearing on the witness’ motion for release; (3) by violating Fla.R. Crim.P. 3.190(j) by permitting the taking of the video tape without the State supporting its motion with affidavits as required by the rule; (4) in allowing the investigating officer to remain in court after invoking the exclusion rule; (5) by permitting a police officer to testify about certain statements made by the victim; and (6) in that the sentences imposed at trial were improper because they resulted in multiple punishment for the same criminal offense.

No proper objection was made at the time the State sought to introduce the video deposition, which had been taken to preserve the testimony pursuant to the applicable rules of criminal procedure. Fish-man v. Liberty Associates, Inc., 196 So.2d 493 (Fla. 3d DCA 1967). There was no abuse of discretion in the trial court refusing to permit cross-examination of the material witness at the time of the motion for release. In fact, defense counsel had the opportunity for cross-examination at the time of the taking of the testimony of the material witness for purpose of preservation. Rule 3.190(j)(3) Fla.R.Crim.P. Any objection relative to the motion made pursuant to Fla.R.Crim.P. 3.190(j) was waived and if not waived at most it would constitute harmless error. Ennis v. State, 300 So.2d 325 (Fla. 1st DCA 1974); Matera v. State, 218 So.2d 180 (Fla. 3d DCA 1969); Section 924.33 Fla.Stat. (1979). In order to reverse a trial court for permitting a witness to remain in a courtroom, it is necessary for the appellant to demonstrate an abuse of discretion. This record fails to disclose such and, therefore, no error has been made to appear. Thomas v. State, 372 So.2d 997 (Fla. 4th DCA 1979); Spencer v. State, 133 So.2d 729 (Fla.1961). There was no error in permitting the investigating police officer to testify as to spontaneous statements at the time of the incident. Johnson v. State, 314 So.2d 248 (Fla. 1st DCA 1975); Appell v. State, 250 So.2d 318 (Fla. 4th DCA 1971); State v. Williams, 198 So.2d 21 (Fla.1967); Washington v. State, 86 Fla. 533, 98 So. 605 (1923). We do find that the sentence for possession of a handgun is inappropriate under Hegstrom v. State, 388 So.2d 1308 (Fla. 3d DCA 1980), but that the adjudication and the enhanced penalties, because of the possession of a firearm, were appropriate as to count II, Griffen v. State, 384 So.2d 324 (Fla. 2d DCA 1980); Williams v. State, 360 So.2d 61 (Fla. 2d DCA 1978), but, as to Count III, inappropriate. Fowler v. State, 375 So.2d 879 (Fla. 2d DCA 1979); Crook v. State, 385 So.2d 1136 (Fla. 1st DCA 1980).

Therefore, for the reasons above stated, all the convictions and adjudications are affirmed. The sentences are affirmed except, the sentences on the possession of a firearm and that on the burglary are reversed. The matter is returned to the trial court to vacate the sentence on the possession conviction and to vacate the sentence (as enhanced) on the burglary conviction and resentence.

Affirmed in part, reversed in part, with directions.

      . Besides the above counts, the defendant was also charged with first degree murder (found not guilty), bribery (found not guilty), on which the court entered a judgment of acquittal.

      . This motion was accompanied by the chief detective’s affidavit which informed the court that neither Piza nor another witness, both of whom were illegal aliens, were willing to testify and wished to return to Colombia.


author:
DOWNEY, Judge.
      LETTS, Chief Judge,

text:
    Donald TOPLEY a/k/a Donnie Tarpley, Appellant, v. STATE of Florida, Appellee.
    No. 81-920.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Rehearing Denied Aug. 11, 1982.

      Richard L. Jorandby, Public Defender, Marcy Karr Allen and Ellen Morris, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Russell S. Bohn, Asst. Atty. Gen., and James P. McLane, Legal Intern Certified, West Palm Beach, for appellee.
   DOWNEY, Judge.

The criminal episode giving rise to the charges in this case involved the burglary of a jewelry and gift store. From the evidence, we determine that appellant Topley’s car was seen in the vicinity of the burglary in the City of Stuart and a high speed chase ensued to the Martin County line. There appellant’s car was stopped and two males exited the car and entered nearby woods, where appellant and a cohort were eventually apprehended. Many of the stolen items were found in the trunk of appellant’s automobile, including a display case with appellant’s fingerprint on it.

Appellant was charged with Count I, burglary of a structure; Count II, grand theft; and Count III, criminal mischief causing damage over $1,000. A jury trial resulted in appellant’s conviction on all three counts as charged.

On appeal no contention is made that the evidence was not sufficient to convict appellant. Rather reversal is sought on the grounds 1) that appellant was tried in jail clothing and 2) the trial court erred in not granting a mistrial because of the prosecutor’s remarks in closing argument. We find no merit at all in appellant’s second contention. However, since the first point raises a due process question, we find it deserves more detailed treatment.

When appellant arrived at the Martin County Jail he was relieved of his clothes, which the State proposed to use in evidence, and he was issued jail garb. In view of the confiscation of his clothes, appellant filed a pretrial motion requesting funds with which to purchase clothes to wear to trial. Although the motion was denied, the trial court offered appellant time to seek civilian clothing from friends or some social agency or any other source. Appellant renewed his motion when he arrived at the courthouse for trial, but once again the trial judge denied the motion. However, the trial judge offered to give the jury a curative instruction relative to the presumption of innocence and the necessity that no inferences be made from appellant’s clothing. The case proceeded to trial; no curative instruction was requested or given and appellant was convicted. We think it worthy to note that appellant was not a resident of Martin County, that he remained incarcerated from the date of his arrest through the date of trial, and that he was indigent and represented by the public defender.

The problem with compelling a defendant to be tried in prison or jail clothes is that it may have an insidious effect upon the presumption that he is innocent. As the Supreme Court of the United States said in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976):

[T]he constant reminder of the accused’s condition implicit in such distinctive identifiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that, not unlike placing a jury in custody of deputy sheriffs who were also witnesses for the prosecution, an unacceptable risk is presented of impermissible factors coming into play. 425 U.S. at 504-505, 96 S.Ct. at 1693, 48 L.Ed.2d at 131.

Although requiring an accused to appear for trial in prison garb is generally condemned, the courts have not embraced an automatic rule requiring reversal in all instances. Rather, as the court said in Estelle, supra :

Instead, they have recognized that the particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire. The reason for this judicial focus upon compulsion is simple; instances frequently arise where a defendant prefers to stand trial before his peers in prison garments. The cases show, for example, that it is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury. . .. This is apparently an accepted practice in Texas courts . . . including the court where respondent was tried. (Citations omitted.)
-425 U.S. at 507-508, 96 S.Ct. at 1694-1695, 48 L.Ed.2d at 132-133.

Compelling the defendant’s appearance so dressed may impinge upon his presumption of innocence and thus constitute a violation of his constitutional right to due process. Estelle, supra, Bentley v. Crist, 469 F.2d 854 (9th Cir. 1972). However, the error is not necessarily reversible. In fact, many courts have applied the harmless error rule in this situation. Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971); Watt v. Page, 452 F.2d 1174 (10th Cir. 1972); Bentley v. Crist, 469 F.2d 854 (9th Cir. 1972); Thomas v. Beto, 474 F.2d 981 (5th Cir. 1973); and see other cases cited at Annotation, Wearing Prison Garb at Jury Trial — 26 A.L.R.Fed. 535, § 7[a], Nevertheless, under these circumstances, error must be found harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Although appellant does not attack the sufficiency of the evidence, we are unable to say with the degree of certitude required by Chapman, supra, that denial of appellant’s motion for funds to procure clothing for trial was harmless error. On the other hand, we are also unable to determine that under the circumstances of this case appellant was actually compelled to go to trial in prison garb. As pointed out earlier in this opinion, an accused may prefer to go to trial so garbed as a matter of tactics in the hope of creating sympathy with the jury for his plight. Thus, appellant’s right not to be compelled to submit to trial in that fashion, like so many others, can be waived by failure to assert it. Estelle v. Williams, supra. In the present case the fact that appellant requested that he be furnished funds (from whom we do not know) to purchase clothing so he would not have to appear in his jail issue clothing does not end the matter. For in order to require the State to furnish clothing an accused ought to be required to show that he does not have clothes available to him from sources such as family, friends, social agencies, or his own funds.

We, therefore, remand the cause to the trial court to determine, after an evidentia-ry hearing, whether appellant could have obtained suitable clothing for trial from any of the mentioned sources and thus whether he was compelled to go to trial in his jail clothing. The trial court is requested to file its findings and conclusions, together with a transcript of the hearing, with this court within 60 days from date hereof.

REMANDED with directions.

WALDEN, J., concurs.

LETTS, C. J., dissents with opinion.

LETTS, Chief Judge,

dissenting:

The defendant was not “compelled” to go to Court in prison garb. On the contrary the Court offered the defendant a chance to seek civilian clothing. There is no record that he did so and was unsuccessful. Surely he has the burden of demonstrating error.

Moreover, the defendant did not request clothes as such. Instead he asked for money to purchase same. Our majority opinion may, for the future, tacitly approve a practice whereby the county, hence the taxpayer, has to buy clothes for a defendant. I deplore any such expansion of the law.

Finally, the evidence of guilt is overwhelming in this case and at the very least the harmless error doctrine should apply.

      . Prison clothing was described as a “brand of incarceration” in Eaddy v. People, 115 Colo. 488, 174 P.2d 717 (1946).


author: OTT, Judge.

text:
    Frederick JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1199.
    District Court of Appeal of Florida, Second District.
    June 11, 1982.
    Rehearing Denied July 26, 1982.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Clearwater, and Eula Tuttle Mason, Asst. Public Defenders, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Frederick Jordan appeals his conviction for “attempted resisting arrest with violence.” Jordan was initially charged with “resisting arrest with violence,” in violation of section 843.01, Florida Statutes (1981), which provides:

Whoever knowingly and willfully resists, obstructs, or opposes any . . . municipal police officer, ... in the lawful execution of any legal duty, by offering or doing violence to the person of such officer ... is guilty of a felony of the third degree .... (Emphasis added.)

During the charge conference, the following exchange occurred:

Ms. Tierney (Assistant State Attorney): I would ask for attempt on the charge. When you attempt to resist.
Mr. Everhart (Defense Counsel): I think attempt without violence — there is no such thing.
The Court: I don’t know why, but the State insists on confusing the jury with attempt charges. It’s just so bad. I don’t understand why you all would even want that.
Mr. Everhart (Defense Counsel): That’s an attempt case? We would object for the record.
The Court: Okay, I’ll overrule the objection.

Four jury verdict forms were then given to the jury: (1) not guilty, (2) guilty of resisting arrest with violence, (3) guilty of attempted resisting arrest with violence, and (4) guilty of resisting arrest without violence. The jury returned a verdict of guilty of “attempted resisting arrest with violence,” and appellant was adjudicated guilty of that offense by the court.

Thereafter, the trial judge apparently became aware of our holding in McAbee v. State, 391 So.2d 373 (Fla. 2d DCA 1980). In McAbee, we held that the crime of attempted resisting arrest- with violence does not exist in Florida and therefore defendant’s conviction for such crime is void. The trial judge attempted to resolve this McAbee dilemma by first sua sponte setting aside the conviction for attempted resisting arrest with violence under the authority of rule 3.580, Florida Rule of Criminal Procedure.

Next, pursuant to rule 3.620, Florida Rule of Criminal Procedure, the trial judge found that even though the evidence could not sustain the verdict rendered by the jury, it was sufficient to sustain a finding of guilt on the lesser-included offense of resisting arrest without violence.

Jordan now contends that he was adjudicated guilty of a crime which is nonexistent and that he should therefore be released.

Before we begin our analysis, we feel compelled to congratulate the trial judge on a job well done. We are sympathetic with the plight of the trial courts and understand that because of the crowded dockets they are sometimes forced to rely too heavily on counsel for assistance in these matters. We commend him for his attempt to remedy a difficult situation that was created by the insistence of an unprepared state attorney. However, because of our holding in McAbee and the very recent supreme court case of Achin v. State, No. 59,840 (Fla. Jan. 21, 1982), we are compelled to reverse.

Initially, the lower court’s actions following the adjudication of guilt for “attempted resisting arrest with violence” constitute a legal impossibility. The rule that one may be found guilty of a lesser included offense presupposes a finding of guilt on a legally viable greater offense. Here, the appellant was never convicted of a legal crime; hence, the rule of lesser-included offenses does not come into play. If the jury did not find the appellant guilty of an existing crime, the proceeding is at an end upon the jury verdict and Jordan’s presumption of innocence is maintained. No case has been cited to us nor have we found any which permits a conviction for a nonexistent crime. Adams v. Murphy, 394 So.2d 411 (Fla.1981) (attempted perjury); Pagano v. State, 387 So.2d 349 (Fla.1980) (attempted corruption by threat against a public servant).

In so holding, we are aware of our holding in McIntyre v. State, 380 So.2d 1064 (Fla. 2d DCA 1980). In that case, appellant/McIntyre also argued that the crime for which he was convicted (attempted grand theft) did not exist. This court rejected the defendant’s argument as follows:

[Attempted grand theft is not nonexistent in the sense that the activity encompassed by such a charge is not a crime. Rather, the legislature has simply merged this crime with the crime of grand theft by the use of the phrase “endeavors to obtain or to use” in the theft statute, section 812.014, Florida Statutes (1979).... Thus evidence of an attempt to commit grand theft can convict a person of the crime of grand theft. Since there was competent and substantial evidence that at the very least appellant attempted to commit grand theft, no prejudice could result from construing the verdict as a finding of guilt for grand theft.

However, McIntyre’s holding is rejected for the following reasons. Initially, one of the primary legal underpinnings of the decision was that McIntyre’s defense counsel had invited the erroneous jury instruction. Judge Grimes reasoned that such a situation was analogous to the line of cases which holds that a person cannot complain of a conviction for a crime which is not a lesser-included offense of the crime with which he was charged when it appears that he induced the error. E.g., Jones v. State, 358 So.2d 37 (Fla. 4th DCA 1978). Clearly this is not the case sub judice as here it was the state attorney who not only proffered but insisted that the erroneous instruction be given.

The recent decision of Achin invalidates McIntyre. In Achin, the Florida Supreme Court reaffirmed the long-standing general rule that one may never be convicted of a nonexistent crime. This result was reached even though defense counsel had invited the error.

The next issue we must address is whether or not the defendant should be discharged on double jeopardy grounds. In Achin, the defendant was found guilty of attempted extortion — a nonexistent crime. However, the Florida Supreme Court held that because defendant was convicted of a crime which, although technically nonexistent, was in all elements equal to the main offense, the double jeopardy provision of the fifth amendment does not bar defendant’s reprosecution. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Thus, accordingly, we hold that attempted resisting arrest with violence, while technically nonexistent, is in actuality in all elements equal to the main offense— resisting arrest with violence.

Accordingly, the cause is REMANDED for a new trial.

BOARDMAN, A.C.J., and CAMPBELL, J., concur.

      . Rule 3.580 provides:
      When a verdict has been rendered against the defendant or the defendant has been found guilty by the court, the court on motion of the defendant or on its own motion may grant a new trial or arrest judgment. (Emphasis added.)

      . Rule 3.620 provides:
      When the offense is divided into degrees or necessarily includes lesser offenses, and the court, on a motion for a new trial, is of the opinion that the evidence does not sustain the verdict but is sufficient to sustain a finding of guilt of a lesser degree or of a lesser offense necessarily included in the one charged, the court shall not grant a new trial but shall find or adjudge the defendant guilty of such lesser degree or lesser offense necessarily included in the charge, unless a new trial is granted by reason of some other prejudicial error.