author: ZEHMER, Judge. BOOTH, Judge, ZEHMER, Judge.

text:
    Victor M. ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. AP-351.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1984.
    Rehearing and Rehearing En Banc Denied Jan. 24, 1985.

      Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

The defendant has appealed his conviction upon a jury verdict finding him guilty of sexual battery and kidnapping to facilitate a felony. He urges four points on appeal, three of which fail to demonstrate error. We find his fourth point meritorious and reverse.

On November 17, 1980, Victor Robinson was charged with sexual battery upon P.R. by the use of physical force not likely to cause serious personal injury, and was also charged with kidnapping P.R. with the intent to commit or faciliate a felony. Robinson pled not guilty and a jury trial was held on July 21-23, 1981. A detailed statement of the facts is necessary to a clear understanding of the case.

The initial witness for the state was the alleged victim, P.R., a student at Florida State University, who testified to the following events. After attending two Halloween/Homecoming parties on the night of October 31, 1980, and having given an intoxicated male acquaintance a ride to his home in the early hours of the following morning, she was driving her car to her home about 4:30 a.m. Upon approaching Campbell Stadium, she made a wrong turn and drove down some railroad tracks for approximately three hundred feet, at which point her car became stuck on the tracks. After sitting in her car for thirty to forty-five minutes and periodically honking her horn, she walked to the football stadium to look for a telephone. Failing to locate a phone, she began walking back to her car when the defendant, Victor Robinson, pulled alongside and offered to help. She accepted his offer and, after getting into his car, a Chevrolet Chevette hatchback, the defendant drove a short distance to a dark area of town and had nonconsensual vaginal and oral intercourse with her. The sexual activity took place in both the front seat and the back of the hatchback automobile. Neither party ever got out of the automobile. The defendant was the only person with whom she had intercourse that night. After the sexual battery, she asked the defendant to take her to the Howard Johnson’s restaurant on Tennessee Street, and he did so. As the defendant drove away after dropping her off, she wrote down the car’s license plate number and called the police. She informed the police of the foregoing events and of the fact that one of her earrings was missing. At trial, P.R. positively identified the defendant as the man who raped her.

The state also presented testimony by several police officers which established that P.R. was emotionally distraught and crying when interviewed shortly after she called them. One of the police officers testified that on November 1 the defendant was arrested near his home, which was approximately three blocks from the restaurant where the defendant had dropped off P.R. When arrested, the defendant stated that he had given P.R. a ride to that restaurant the night before but that he had not touched her. Another police officer testified that he dusted the defendant’s car for fingerprints but found no latent prints identifiable as those of P.R. He also testified that after the defendant’s car had been towed to the police station he searched the car and found P.R.’s earring and clip under the driver’s seat of the car.

The state also presented testimony that P.R. was taken to a local hospital for routine examination and testing soon after the police responded to her call. As the physical and scientific evidence bears heavily on the defendant’s argument regarding the insufficiency of the evidence, we find it necessary to discuss that evidence in some detail.

The physician who examined P.R. testified that she did not have any external bruises or abrasions but exhibited symptoms in her vaginal area which could have resulted from consensual intercourse. A vaginal washing disclosed 6,488 units of acid phosphotase, an enzyme from the male prostatic gland, but no sperm cells.

A microanalyst with the Florida Department of Law Enforcement testified that she found no strands of pubic hair on P.R.’s body that she could identify as possibly coming from the defendant. She found three pubic hairs on P.R.’s clothing, two of which had characteristics similar to P.R.’s hair while the remaining hair was of Caucasian character and did not appear to be P.R.’s. She opined that the defendant was unique for a black man because he had negroid head hair but Caucasian pubic hair; and although the Caucasian pubic hair could have come from the defendant, it could also have come from another male.

The defendant testified on his own behalf that he was a full-time student at Florida A & M University and that on the night of October 31 he went to several parties in a rented Chevrolet Chevette. At approximately 5:30 a.m., he dropped off a friend and then proceeded to another friend’s house near Campbell Stadium. While driving on Stadium Drive, he noticed a white female walking on the side of the road attempting to flag him down. The white female, P.R., was crying and asked for the defendant’s help, indicating that she wanted to be taken to the Howard Johnson’s restaurant on Tennessee Street. P.R. got into his car and he took her to the restaurant and dropped her off. At no time did he sexually assault P.R. That morning, as he was leaving his home to do his laundry, he was stopped by the police and arrested.

The defense also presented the testimony of a chemistry professor who had been doing research for ten years in the field of human reproductive biology and was qualified as an expert. This witness testified that the presence of greater than one hundred units of acid phosphotase in a vagina indicates that intercourse with ejaculation has taken place and that, based upon the presence of 6,488 units in P.R. within three hours after the alleged incident, P.R. definitely experienced at least one episode of intercourse within the previous twenty-four hours with a male who ejaculated a very large amount of semen into her. He stated that the defendant had been tested and found to be very virile, with a high sperm count; that if the defendant had participated in sexual intercourse with ejaculation with P.R., about 300 million sperm cells would necessarily have been found within P.R.’s vagina, but that testing done on P.R. indicated the presence of no sperm cells. He believed that P.R. definitely had intercourse within twenty-four hours of being tested with some other male who either had undergone a successful vasectomy or had a disease which prohibited the formation of sperm. The witness further testified that an enzyme called phosphoglucomutose (PGM) is a component of semen and can usually be classified as one of two types; that the only PGM clearly identifiable within the semen analyzed from P.R. was of a type different from that contained within the defendant’s semen; and that although this is not necessarily conclusive, it is very indicative that the defendant did not have sexual intercourse and ejaculation with P.R.

On July 23, 1981, at the close of the evidence, the defendant’s motion for acquittal was denied and the jury returned a verdict of guilty on both counts. Defense counsel then made an oral motion for extension of time to file a motion for new trial, and this motion for extension was granted without objection from the state. Subsequently, a written motion for extension was filed and a written order was entered granting the extension, again with no objection by the state. On August 10, within the granted extension period but beyond the ten-day period specified in rule 3.590(a), Florida Rules of Criminal Procedure, the defendant filed a motion for new trial. On October 20, the trial court granted this motion. In the order granting a new trial, the trial judge recognized that the evidence in the case was “technically sufficient” to make a jury issue, but determined the “weight” of the evidence to be “so tenuous as to require a new trial in the interests of justice.” The text of the order granting new trial is set forth in the appendix to this opinion.

The order granting a new trial was appealed by the state, and on July 23, 1982, this court reversed on the ground that the trial court lacked jurisdiction to entertain the defendant’s motion because under rule 3.590(a) the trial court had no authority to extend the time for filing a motion for new trial. State v. Robinson, 417 So.2d 760 (Fla. 1st DCA 1982). This jurisdictional ruling was considered necessary even though the state did not object to the motion for an extension of time and neither the parties nor the court were aware that such an extension of time was impermissible.

On remand, the defendant made various procedural arguments that were rejected, and the trial court adjudicated the defendant guilty on both counts. The defendant has appealed this final judgment, raising four points.

Initially, we reject the defendant’s argument that he made an oral motion for mistrial immediately after the jury verdict was read and that the motion should have been granted. The record indicates that defense counsel merely inquired into possible grounds for a subsequent motion for mistrial and did not actually make such a motion at that time. The defendant’s remaining procedural arguments are likewise unsupported by the record.

The defendant has also argued that the trial court erred in denying his motion for judgment of acquittal on the sexual battery count because there was insufficient evidence in the record to sustain a finding of guilt. We reject this contention because the testimony of the alleged victim was legally sufficient to establish a prima facie case for the prosecution.

No corroborative evidence is required in a sexual battery case when the victim can testify directly to the crime and can identify her assailant, although it should be carefully scrutinized so as to avoid an unmerited conviction. Thomas v. State, 167 So.2d 309 (Fla.1964); see § 794.-022, Fla.Stat.(1981). But cf. Huggins v. State, 453 So.2d 835 (Fla. 5th DCA 1984). The physical and scientific evidence in the record that tends to show the impossibility of defendant having been the male involved in sexual intercourse with P.R. does not vitiate the legal sufficiency of P.R.’s testimony, although it does bear heavily on her credibility and the weight of all the evidence tending to support the verdict.

The defendant next argues that the trial court erred in denying his motion for acquittal on the kidnapping charge on the ground that the evidence was legally insufficient, primarily because there was no evidence of any force or threat that was not inherent in the nature of the sexual battery. Section 787.01, Florida Statutes (1979), states:

(l)(a) ‘Kidnapping’ means foreeably, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority with intent to:
* * * * * *
2. Commit or facilitate commission of any felony.

The evidence construed in a light most favorable to the state shows that P.R. voluntarily entered the defendant’s automobile after the defendant had promised to help her with her car problem. The defendant, without any force or threat, drove P.R. to a dark and isolated area of town and sexually battered her against her will. Although there was no evidence that P.R. actually attempted an escape, there was evidence to show that she was restrained by force during the occurrence of the sexual batteries.

To establish the offense of kidnapping to facilitate commission of a felony, the movement or confinement resulting from the kidnapping:

(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) must not be of the kind inherent in the nature of the other crime; and (c) must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Faison v. State, 426 So.2d 963, 965 (Fla.1983).

The confinement of P.R. in the defendant’s car during the commission of the sexual battery was merely incidental to the crime of sexual battery and was inherent in the nature of that crime. See, Simpkins v. State, 395 So.2d 625 (Fla. 1st DCA 1981). Accordingly, the kidnapping charge cannot be substantiated upon the confinement during the actual act of sexual battery.

Although the transportation of P.R. from the location at which defendant picked her up to the point where the sexual battery allegedly occurred was not shown to be accomplished by physical force or threat, section 787.01, Florida Statutes, provides that kidnapping also means “secretly” confining, abducting, or imprisoning another person against that person’s will. The term “secretly” means that the abduction or confinement is intended by the defendant to isolate or insulate the intended victim from meaningful contact or communication with the public. See, Miller v. State, 233 So.2d 448 (Fla. 1st DCA 1970). In the present case, the jury could find from P.R.’s testimony that she was unaware of where she was being taken and that the defendant transported P.R. to an isolated area where there would be no possibility of meaningful contact with members of the public. This act was tantamount to “secretly” abducting and confining P.R. and was legally sufficient to prove the kidnapping charge.

We turn now to defendant’s fourth point, that in the interest of justice his conviction should be reversed and the case remanded for a new trial. Defendant states, and we agree, that we have no authority to reverse his conviction on the ground that the verdict is contrary to the weight of the evidence. That issue was firmly settled by the Supreme Court in Tibbs v. State, 397 So.2d 1120 (Fla.1981). But cf. Huggins v. State, supra. As explained by the Supreme Court, the role of the trial judge in passing on a motion for new trial on the ground that the jury verdict is contrary to the weight of the evidence (rule 3.600(a)(2)) is:

... to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror. It follows that a finding by the trial judge that the verdict is against the weight of the evidence is not a finding that the evidence is legally insufficient.

Id., at 1123, n. 9.

The Supreme Court has made it abundantly clear that the only avenue for judicial review of the weight of the evidence is by motion for new trial at the trial court level. Thus, the rules of criminal procedure and the courts continue to recognize the critical need for some form of discretionary judicial review to serve as a safety valve in those cases where the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the jury verdict. Tibbs simply removes the” appellate courts from playing any significant role in that process and places sole responsibility for that discretionary decision upon the trial judge. Accordingly, in criminal cases where the evidence of guilt is tenuous, we believe the obligation upon defense counsel to timely file a motion for new trial in order to preserve the defendant’s right to judicial review of the weight of the evidence is substantially analogous, if hot equal, to defense counsel’s obligation to file a notice of appeal in order to preserve the defendant’s right to appellate review.

Failure to timely file a notice of appeal is per se ineffective assistance of counsel because a defendant is deprived of his right to appellate review. State v. Meyer, 430 So.2d 440 (Fla.1983). Since the only judicial review of the weight of the evidence available to an accused is a motion for new trial, a fortiori the failure to timely file such a motion which results in the loss of all judicial review of evidentiary weight should likewise constitute ineffective assistance of counsel, in violation of the defendant’s constitutional rights.

Although we are strongly disposed to find that defendant’s constitutional right to the effective assistance of counsel has been violated in this case, we need not reach that constitutional issue on this appeal. Instead, we note that the Supreme Court in Tibbs, after having settled upon a new rule precluding appellate courts from reversing on grounds of evidentiary weight, expressly acknowledged that appellate courts continue to have authority to reverse a conviction “in the interest of justice” and emphasized that “each situation is unique.” The Supreme Court commented:

By eliminating evidentiary weight as a ground for appellate reversal, we do not mean to imply that an appellate court cannot reverse a judgment or conviction ‘in the interest of justice.’ The latter has long been, and still remains, a viable and independent ground for appellate reversal. Rule 9.140(f) of the Florida Rules of Appellate Procedure (1977) provides the relevant standards:
In the interest of justice, the court may grant any relief to which any party is entitled ....
This rule, or one of its predecessors, has often been used by appellate courts to correct fundamental injustices, unrelated to evidentiary shortcomings, which occurred at trial. Retrial in these circumstances is neither foreclosed, nor compelled, by double jeopardy principles. Each situation is uniquedcH/d, at 1126; accord, Barnes v. State, 406 So.2d 539 (Fla. 1st DCA 1981); review denied, 413 So.2d 877 (Fla.1982).

Typically a defendant’s loss of appellate review due to the untimely filing of a notice of appeal is reviewed by us upon writ of habeas corpus or similar post-conviction remedies, see State v. Meyer, supra. But in this case, we see no need to resort to that circuitous route to deal with defendant’s loss of judicial review by motion for new trial. This appeal has been properly perfected, and we have jurisdiction, pursuant to rule 9.140(f), to grant the relief requested by defendant.

We hold that the unique situation presented in this case warrants granting the defendant a new trial in the interest of justice. We do not base this decision on the insufficient weight of the evidence or other evidentiary shortcomings; rather, we hold that deprivation of the defendant’s right to any judicial review of evidentiary weight under these unique circumstances constitutes a fundamental injustice. The defendant never waived or intended to fore-go his right to judicial review of the weight of the evidence pursuant to a motion for new trial under rule 3.600(a)(2), Florida Rules of Criminal Procedure. We must assume that counsel for the defendant and the state, as well as the trial judge, were acting under a good faith misconception as to the applicable rule when the unauthorized extension was granted without objection from the state. Defense counsel’s failure to timely file the motion for new trial, which is tantamount to ineffective assistance of counsel, cannot be considered harmless error because his untimely motion was granted by the court. The order granting a new trial was not reversed by this court because it was unsupported by the record; it was reversed because of procedural and jurisdictional defects. We are unwilling to allow a good faith procedural error caused by the ineffectiveness of defense counsel, the state’s failure to timely advise the court of its error, and the trial court’s misconception of its authority under the applicable rule to override the interest of the courts in seeing that justice is ultimately done.

REVERSED and REMANDED.

ERVIN, C.J., concurs.

BOOTH, J., concurs specially.

APPENDIX

ORDER GRANTING NEW TRIAL

This cause came on to be heard before me on the Motion of the Defendant for New Trial and the Court having presided at trial, heard the evidence presented thereat, reviewed the file, heard argument of respective counsel and being otherwise duly advised in the premises, finds that although the evidence submitted at trial is technically sufficient, the weight thereof is so tenuous as to require a new trial in the interests of justice. Although review of the evidence from the standpoint of weight is now virtually precluded at the appellate court level, such remains the duty and responsibility of a trial judge upon presentation of and ruling on a Motion for New Trial. See Tibbs v. State, 397 So.2d 1120 (Fla.1981).

The complaining witness testified under oath at trial that Defendant committed the offenses charged; the Defendant testified under oath at trial that he did not. Turning to other significant evidence, the State produced a hair classification expert who testified that the one pubic hair found on the exterior of the garments of the White complaining witness was of Caucasian character and that the Defendant was apparently unique as, in the opinion of the expert, he possessed Negroid head hair and Caucasian pubic hair. Therefore, testified the expert, the Caucasian pubic hair could have come from the Black Defendant. The expert admitted on cross examination that such a circumstance was unprecedented in the expert’s experience, study of literature on the subject, knowledge, background and training. For the defense, an expert in the field of reproductive biology testified without contradiction that study, evaluation and analysis of the vaginal washings, test information, sperm count of the Defendant, enzyme classifications and other data led to the inescapable physical conclusion that although the complaining witness had sexual intercourse with someone within 24 hours of the hospital examination, the Defendant could not have been that person.

The foregoing as well as the other eviden-tiary matter presented at trial was considered closely by this Court in drawing the conclusion reached above in this case where a sentence of life imprisonment plus 15 years could be imposed.

The Court observes that set forth and alleged in the Motion for New Trial was the revelation that the Defendant had taken a polygraph examination given by a licensed operator the day after conviction purporting to establish that the Defendant did not commit the offenses of which he was tried and found guilty. A copy of the results of the examination was attached to the Motion and made a part thereof. No Motion to Strike the subject portion of the Motion or the Exhibit was timely filed. Nevertheless, this Court views that ground and Exhibit to be beyond the ambit of proper examination of the evidence presented at trial and has therefore excluded it from consideration of the weight thereof.

In consequence of the foregoing and upon consideration thereof it is,

ORDERED AND ADJUDGED that the Motion for New Trial is hereby granted.

DONE AND ORDERED in Chambers at Tallahassee, Leon County, Florida this 20th day of October, A.D. 1981.

BOOTH, Judge,

specially concurring:

I concur with the result of the majority opinion and would remand for new trial out of deference to the trial court’s concern over the weight of the evidence and attempt to grant the defendant a new trial. The procedural irregularities which defeated the grant of the new trial below do not, under the authorities correctly cited by the majority, preclude the award of a new trial by this court.

That said, however, I do not agree with my colleagues’ analysis of the evidence, which fails to discuss several reasonable bases for the jury’s guilty verdict, including the jury’s right to reject in its entirety the testimony of defendant’s expert concerning whether the defendant could have been the perpetrator of the sexual assault. The jury was also entitled to disbelieve the alibi of the defendant and to believe the testimony of the victim that she was repeatedly attacked, testimony which was substantiated by medical evidence, and by the other physical findings, including her earring, found in defendant's car under the driver’s seat.

Under our system of law, it is uniquely ‘ the function of the jury to view the witnesses and determine the credibility of all who testify. The jury applies its collective wisdom and understanding of human nature to supply the best test of truth where evidence is conflicting. The jury function is particularly critical in cases such as this, where it is the testimony of the victim against that of the accused. A jury verdict that is supported by the evidence and not contrary to the weight of the evidence, cannot be set aside either by the trial court or the appellate court.

Despite my disagreement with the majority’s analysis of the evidence here, however, I concur in the remand for a new trial, not due to any insufficiency of evidence as viewed from the appellate level, but solely out of deference to the trial court’s ruling based on the weight of the evidence.

ON MOTION FOR REHEARING

ZEHMER, Judge.

The state, in its motion for rehearing and suggestion for rehearing en banc, complains in principal part that our decision has the effect of overruling the decision on the state’s appeal in State v. Robinson, 417 So.2d 760 (Fla. 1st DCA 1982) (.Robinson I), and that in reaching our decision on the instant appeal we necessarily weighed the evidence contrary to Tibbs v. State, 397 So.2d 1120 (Fla.1981).

A careful reading of our opinion will reveal that we took particular note of the decision in Tibbs v. State, supra, prohibiting appellate courts from weighing the evidence as the basis for reversal. Our decision is predicated entirely upon a procedural error which, because of an apparent common misunderstanding of the rules by the public defender, the state attorney, and the circuit judge, resulted in a fundamental injustice to the defendant that was not intended by any of them. The state’s contention that our decision is necessarily predicated on a review of evidentiary weight constitutes a complete misreading of the opinion.

Likewise, there is no “hopeless conflict” between our decision on the instant appeal (Robinson II) and our decison on the state’s appeal in Robinson I. Robinson II does not amount to an overruling of this court’s decision in Robinson I. The state’s appeal in Robinson I was from an order granting a new trial, and the sole issue presented was whether the trial court erred in granting the defendant's motion for a new trial. At the time of that appeal, no judgment of conviction had been entered and there was no pending judgment or order adverse to the defendant from which he could appeal. In Robinson I, we simply held that the motion for new trial was untimely filed and the trial court was without jurisdiction to grant the motion. Since the defendant had no opportunity on that appeal to raise the issues presented on this appeal, the court in Robinson I did not have an opportunity to rule upon the merits of the defendant’s questions presented on this appeal. Again we emphasize that unique circumstances in this case gave rise to a fundamental injustice that cannot be treated as harmless error.

The state’s motion for rehearing has failed to demonstrate any inconsistency between our decision on this appeal and the decisions in Robinson I and Tibbs v. State, supra. The motion for rehearing and suggestion for rehearing en banc are denied.

ERVIN, C.J., and BOOTH, J., concur.

      . § 794.011(5) and § 787.01, Fla.Stat. (1979).

      . The court in Tibbs left unresolved whether an appellate court will nevertheless be permitted to reweigh the evidence in reviewing a trial court order granting or denying a motion for new trial on this ground. 397 So.2d at 1123, n. 12.

      . If the merits of the order granting a new trial were properly before us for review, which they are not, we would be hard pressed to justify reversal on the ground of abuse of discretion. See note 2, supra.

      . Trial court’s order granting new trial, in part: "Although the evidence submitted at trial is technically sufficient, the weight thereof is so tenuous as to require a new trial in the interest of justice.”


source: Caselaw Access Project

author: COWART, Judge.

license: Public Domain

text:
    Everett H. FISCHER and Tommy H. Outlaw, as Trustees, Petitioners, v. The BOARD OF COUNTY COMMISSIONERS OF ORANGE COUNTY, Florida, Respondent.
    No. 84-987.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 1984.
    Rehearing Denied Jan. 23, 1985.

      Robert B. Nadeau, Jr., of Akerman, Sen-terfitt & Eidson, Orlando, for petitioners.
    Scott E. Wilt and Thomas A. Cloud, Orlando, for respondent.
   COWART, Judge.

This case involves certiorari review of an order of the circuit court denying certiorari and leaving in effect a decision of The Board of Commissioners of Orange County, Florida, denying petitioners special exception for the location of a package sewer disposal plant on, and to serve, land owned by the petitioners and zoned for residential use.

The land in question has been zoned R-3 by Orange County for many years and was so zoned when purchased by petitioners. The only uses permitted in such multi-family dwelling district are residential uses.

On October 11, 1980, Orange County approved in concept the petitioners’ plans to develop thirty-one acres of land zoned R-3 known as the Reams Road project, expressly finding that the proposed development was consistent with the county’s Growth Management Policy (GMP) and approved the use of an on-site package sewer disposal plant that met all appropriate permitting including approval by DER. On December 10, 1980, petitioners’ preliminary plans for a water and sewage disposal plant were approved by the Orange County Sewer and Water Board. Twice the propriety of the R-3 zoning has been reviewed and affirmed, the second time after litigation which judicially confirmed the zoning. However, when petitioners requested a special exception necessary under county zoning to locate the previously approved package plant on the petitioners’ R-3 land, to serve those lands, the special exception was denied by the county. Petitioners’ petition for certiorari in the circuit court to review the county’s order denying the special exception was also denied. In this case petitioner seeks certiorari review of the circuit court order denying relief.

The zoning of land for residential use constitutes a legislative finding by the zoning authority that the lands are fit and proper for that use and also constitutes a governmental limitation on the use of those lands, limiting the lawful use thereof to the uses permitted under that zoning. A proper method of disposing of liquid waste is absolutely essential to any use of land for residential purposes. If lands which are legally limited by governmental zoning to residential use are further prohibited by governmental action from the use of any method of disposing of liquid waste, such prohibition of any sewage disposal method operates effectively to deny the owner from making any beneficial use of his lands. If the regional supplier of public utility services, which has the exclusive right, and the concomitant duty, to provide sewer service to land zoned for residential use, refuses or fails to serve that land, then the appropriate governmental authority may decide which of the remaining sewage disposal methods are most appropriate for that land as zoned, but that authority cannot deny to the owner all remaining methods of disposing of liquid waste without thereby unconstitutionally denying that owner the beneficial use of his lands.

The petition of certiorari is granted and the order below is quashed and jurisdiction is remanded to the lower court for further proceedings consistent with this opinion.

DAUKSCH and ORFINGER, JJ., concur.

      . Apparently, currently, there are three practical methods of disposing of sewage: (1) central sewage systems operated under governmental regulatory authority as public utilities, (2) "package” sewer plants serving a limited area, and (3) septic tanks.


author: PER CURIAM. BASKIN, Judge

text:
    Ward WAGNER and Debra Wagner, individually, and as husband and wife, and John E. Buzzuto, as Trustee of Hialeah Plaza Land Trust, Appellants, v. CITY OF HIALEAH, a municipal corporation, Metropolitan Dade County, a political subdivision, Anthony R. Abraham and Genevieve Abraham, and Ana Balance, jointly and severally, Appellees.
    No. 84-211.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Rehearing Denied Feb. 8, 1985.
    Horton, Perse & Ginsberg and Edward A. Perse, Brumer, Cohen, Logan & Kan-dell, Gerald E. Rosser, Miami, for appellants.
    Anderson, Moss, Russo & Gievers, Daniels & Hicks and Louise H. McMurray, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

We affirm the summary judgment entered in favor of the defendants, the Abra-hams, upon a holding that a former owner of real property which has been twice sold and owned by other persons during an eight year period prior to the accident in question cannot be liable for an open and obvious and therefore patent design or construction defect (pillars obscuring view) involving ingress and egress from a shopping center driveway. See Grail v. Risden, 167 So.2d 610 (Fla. 2d DCA 1964), cert. denied, 174 So.2d 736 (Fla.1965).

BASKIN, Judge

(dissenting).

I disagree with the majority opinion because I find that genuine issues of material fact remain to be decided, Holl v. Talcott, 191 So.2d 40 (Fla.1966). I would therefore reverse the summary judgment entered in favor of the Abrahams.

The Wagners brought an action to recover damages for injuries they sustained when their motorcycle was struck by a car turning left as it exited from Hialeah Plaza. The Wagners predicated their action against the Abrahams on the ground that as the original owners and builders of the shopping center, the Abrahams remained liable for damages resulting from the dangerous placement of the driveway and from the dangerous condition created by two large pillars bounding the driveway and obscuring the vision of motorists leaving the shopping center.

The Wagners alleged that the Abrahams were negligent in building or allowing the driveway to be built too close to the intersection, in failing to prohibit vehicles from turning left, in constructing the pillars, and in failing to obtain a permit for the driveway. The Abrahams requested summary judgment, asserting that eight years before the accident occurred, they had sold the property to Twelfth Hialeah Corporation, which, in turn, sold the property to Hialeah Land Trust, John Buzzuto, trustee. Thus, they maintained, they were absolved from liability for any defects in the shopping center which may have existed at the time of the accident. The trial court entered summary judgment in favor of the Abra-hams. The court ruled that if the location of the driveway and pillars constituted a defect, the defect was patent and the Abra-hams were no longer liable.

Ordinarily, a vendor of real estate is relieved of liability for defects upon the land when it transfers the property to a vendee who has a reasonable opportunity to correct the faults. Anderson v. Cosmopolitan National Bank of Chicago, 54 Ill.2d 504, 507, 301 N.E.2d 296, 298 (1973); Carlson v. Hampl, 284 Minn. 85, 87, 169 N.W.2d 56, 57 (1969); Gasteiger v. Gillenwater, 57 Tenn.App. 206, 211, 417 S.W.2d 568, 571 (1966); Restatement (Second) of Torts, § 352 (1965); 48 A.L.R.3d 1027, 1031.

An exception to the general rule arises when the vendor has created a condition on the land which presents an unreasonable risk of injury to persons outside the land; in that case, the vendor remains liable until the vendee discovers the condition and has had a reasonable opportunity to correct the problem. Restatement (Second) of Torts, § 373 (1965); 48 A.L.R.3d 1027, 1032. See Cogliati v. Ecco High Frequency Corp., 92 N.J. 402, 456 A.2d 524 (1983); Merrick v. Murphy, 83 Misc.2d 39, 371 N.Y.S.2d 97 (Sup.Ct.1975); Narsh v. Zirbser Brothers, Inc., 111 N.J.Super. 203, 268 A.2d 46 (1970); Cavanaugh v. Pappas, 91 N.J.Super. 597, 222 A.2d 34 (Cty.Ct.1966).

In the case before us, the location of the pillars is, as the majority holds, an obvious and patent defect for which the former owners of the property should not remain accountable; however, the danger created by the placement of the driveway is not necessarily obvious. That the placement of the driveway may have constituted a defect became clear from the testimony in the deposition of Miles Elliot Moss, an expert witness for the injured parties. He testified that the placement of the driveway created a dangerous condition because the driveway was too close to a major intersection. In support of his opinion, he cited standards employed by architects and engineers which require that a driveway be placed at least 125 feet from a major intersection. Whether the placement of the driveway constituted a defect and whether the defect was so obvious that subsequent purchasers were necessarily aware of the dangerous condition it created presented issues of material fact which should have been submitted to the jury. See Lubbell v. Roman Spa, Inc., 362 So.2d 922 (Fla.1978) (trial court correctly denied directed verdict for property owner where evidence that defect in ceiling could have been discovered by inspection made it question for jury); Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla.1965) (court reversed summary judgment in favor of property owner where question of property owner’s knowledge of slippery condition on floor was for jury to decide); Echols v. Hammet Co., 423 So.2d 923 (Fla. 4th DCA 1982), review denied, 434 So.2d 887 (Fla.1983) (reversible error to direct verdict for defendant contractor, because there was jury question as to whether defect in road was observable); Orr v. D'Andrea, 412 So.2d 933 (Fla. 1st DCA 1982) (court vacated order dismissing complaint where question of fact existed as to the extent of owner’s knowledge of dangerous condition created by builder on her property); Milby v. Pace Pontiac, Inc., 176 So.2d 554 (Fla. 2d DCA 1965), cert. dismissed, 185 So.2d 467 (Fla.1966) (whether drop-off immediately inside entrance was obvious or hidden was question for jury). Compare Grail v. Risden, 167 So.2d 610 (Fla. 2d DCA 1964), cert. denied, 174 So.2d 736 (Fla.1965) (summary judgment upheld where there was no question of fact that tie-rod extending out on sidewalk was patent defect because it could have been seen by one using due care).

In summary, unless the subsequent purchasers knew of the location of the driveway and also discovered that its proximity to the intersection created a dangerous condition, the original owners remain liable.

The majority opinion fails to address an important inconsistency in the trial court’s ruling and its effect on the ability of the parties to seek redress from one another. Although the trial court found that the defect was patent as to the Abrahams, it nevertheless decided to submit to the jury the issue of whether the defect was patent as to subsequent owners. Thus, it is possible for the jury to reach a decision contrary to that found by the trial court on the question of whether the driveway defect was patent. Such a conflict would confuse the apportionment of damages among the parties.

For these reasons, I would reverse and remand for further proceedings.


text:
    STATE of Florida, Appellant, v. Bruce Hayes MUNRO, Appellee.
    No. 83-1688.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 1984.
    Rehearing Denied Jan. 23, 1985.

      Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellant.
    Dan R. Warren of Judge & Warren, P.A., Daytona Beach, for appellee.
   COWART, Judge.

This case involves two criminal charges and the doctrine of collateral estoppel.

The State charged the defendant in one information with trafficking in cocaine (§ 893.135(l)(b)(3), Fla.Stat.) and in another information with conspiracy to commit the offense of trafficking in cocaine (§§ 777.-011, 777.04, 893.135(l)(b)(3), Fla.Stat.). The trafficking offense was tried first and in that trial the defendant successfully asserted the defense of entrapment. After being acquitted on the trafficking offense the defendant moved to dismiss the conspiracy charge on the basis of collateral estoppel. The trial court dismissed the conspiracy information citing Gragg v. State, 429 So.2d 1204 (Fla.1983), cert. denied, — U.S. -, 104 S.Ct. 83, 78 L.Ed.2d 93 (1983), which cited and followed Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and the State appeals.

Because the plea of entrapment is in the nature of a plea of confession and avoidance and necessarily admits the existence of the offense charged, the trial court was eminently correct in concluding that the jury acquitted defendant of the trafficking charge on the basis of a reasonable doubt as to guilt created by the assertion of the defendant’s affirmative defense of entrapment. However, the trial court erred in concluding that, as a matter of law, logic or fact, the defense of entrapment, successfully asserted as to the trafficking charge, necessarily encompassed both the trafficking charge and the charge of conspiracy. The offense of conspiracy is legally separate and distinctly different from the criminal offense which constitutes the alleged subject matter of the alleged conspiracy. One may be guilty of both offenses, guilty of one and not guilty of the other, or not guilty of either. Each is a separate offense and may or may not be subject to one specific defense. A particular affirmative defense may be applicable to either, or neither, or both of the particular charges relating to both offenses. Accordingly, the jury finding that the defendant was entrapped as to the trafficking offense does not mean that the jury in that trial necessarily found that the defendant was also entrapped as to the conspiracy charge which was not then being tried. Not only was such a finding unnecessary to a determination of the trafficking charge but testimony, if any, as to entrapment as to the conspiracy charge was legally immaterial and irrelevant to the issues tried in the trial of the trafficking charge. The defendant may or may not have also been entrapped as to the conspiracy charge but that defense should be asserted in the trial of the conspiracy charge. That issue was not decided against the State in the trial of the trafficking charge.

The order dismissing the conspiracy charge is

REVERSED and the cause REMANDED.

ORFINGER, J., and POWELL, R.W., Associate Judge, concur.

      . See Morris v. State, 456 So.2d 471, 479 (Fla. 3d DCA 1984).


author: COBB, Chief Judge.

text:
    WALT DISNEY WORLD CO., a Delaware corporation, d/b/a Walt Disney World, Petitioner, v. Kathleen Marie COTTO and Salvadore Cotto, Jr., as Personal Representatives of the Estate of Nichole Kathleen Cotto, a minor deceased, and Kathleen Marie Cotto and Salvador Cotto, Jr., individually, Respondents.
    No. 84-1596.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 1984.
    Rehearing Denied Jan. 22, 1985.
    E. Givens Goodspeed of DeWolf, Ward & Morris, P.A., Orlando, for petitioner.
    Robert W. Kelley of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for respondents.
   ON PETITION FOR WRIT OF CERTIORARI

COBB, Chief Judge.

This case is before us on a petition for writ of certiorari by Walt Disney World Co., defendant below, to review a discovery order requiring the production of certain statements which are claimed to be “work product” under Florida Rule of Civil Procedure 1.280(b). We grant the petition and quash the lower court’s order.

This action arose from the death of Nicole Kathleen Cotto, a minor, which occurred on the premises of Walt Disney World as a result of injuries sustained when a menu sign fell on her. Soon after the accident, three claims representatives, employed in the claims division of the Walt Disney World legal department, took the statements of persons who were in the area where the incident took place.

The depositions of these claims representatives were taken and testimony was elicited that these witness statements were taken in the ordinary course of the claim department’s business. Subsequently, plaintiffs filed a motion to compel production of the statements, which was granted by the trial court. The lower court gave as the basis for its ruling that “based on deposition testimony, said statements were preliminary statements taken in the ordinary course of business and not for litigation/trial purposes.”

We must disagree with the lower court’s order as we find that it directly conflicts with our holding in Winn Dixie Stores, Inc. v. Nakutis, 435 So.2d 307 (Fla. 5th DCA 1983), review denied, 446 So.2d 100 (Fla.1984).

QUASHED.

SHARP and COWART, JJ., concur.


author: PER CURIAM.

text:
    METROPOLITAN DADE COUNTY, Petitioner, v. Marsha L. LYONS and the Circuit Court For the Eleventh Judicial Circuit In and For Dade County, Florida, Criminal Division (03), Respondents.
    No. 84-1587.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Rehearing Denied Feb. 13, 1985.
    Robert A. Ginsburg, Dade County Atty. and Eric K. Gressman, Asst. County Atty., for petitioner.
    Lyons & Farrar and Marsha L. Lyons, Coral Gables, for respondents.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

This is a petition for a writ of certiorari seeking review of a trial court order directing Metropolitan Dade County to compensate a court-appointed counsel in a criminal case. We have jurisdiction to entertain this petition. Art. V, § 4(b)(3), Fla. Const.; Dade County v. Goldstein, 384 So.2d 183 (Fla. 3d DCA 1980); Dade County v. Grossman, 354 So.2d 131 (Fla. 3d DCA 1978); Dade County v. McCrary, 260 So.2d 543 (Fla. 3d DCA 1972); Dade County v. Strauss, 246 So.2d 137 (Fla. 3d DCA), cert. denied, 253 So.2d 864 (Fla.1971), cert. denied, 406 U.S. 924, 92 S.Ct. 1793, 32 L.Ed.2d 125 (1972).

The facts relevant to this petition are undisputed. The trial court, in the order under review, awarded $25,000 in legal fees to an attorney, Marsha Lyons, for representing an indigent criminal defendant pursuant to a court appointment. The defendant, Robert Patton, had been charged with a capital crime and various other offenses in three separate charging documents filed before the trial court, to wit: an indictment, an information, and a probation violation affidavit. All agree that the maximum legal fee which the trial court was authorized to award counsel under Section 925.035, Florida Statutes (1981), was $8,500.

The trial court and the parties herein cite no legal authority, aside from the above statute, for awarding legal fees to counsel in this case. This is not surprising because there is no such authority, as plainly “[t]he right to recover attorneys’ fees as part of the costs in an action did not exist at common law....” Dade County v. Strauss, supra at 141. The fact that counsel may have devoted an extraordinary amount of time in representing the defendant in an extremely complex case cannot, as urged, change this result. The Florida Supreme Court has so held with unmistakable clarity in Metropolitan Dade County v. Bridges, 402 So.2d 411 (Fla.1981), as follows:

“We hold that section 925.036 is constitutional, that its language is mandatory and not directory, that, therefore, the trial court may not award in excess of the statutory limits....”

Id. at 412.

“We also hold that this section is mandatory and not directory and that the trial court erred in construing it by adding the language which would permit the trial court to award fees higher than those specified by statute where the court determined exceptional circumstances to exist.”

Id. at 413.

It therefore follows that the order under review cannot stand as it constitutes a departure from essential requirements of law. Mackenzie v. Hillsborough County, 288 So.2d 200 (Fla.1973).

The petition for a writ of certiorari is granted, the order under review is quashed, and the cause is remanded to the trial court with directions to award Marsha Lyons no more than $8,500 in legal fees herein.


author: LEHAN, Judge.

text:
    Rex HYER, Appellant, v. STATE of Florida, Appellee.
    No. 83-2622.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1984.
    Rehearing Denied Jan. 23, 1985.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals his conviction and sentencing for attempted first degree murder. We affirm.

We summarize our conclusions as to the various points on appeal: the arrest was a valid citizen’s arrest by police officers who acted outside of their geographical jurisdiction, testimony about a prior restraining order issued against defendant was admissible on the issue of premeditation, the trial court correctly excluded lay testimony about whether a difference between defendant’s signature at the time of his arrest and a later signature of his indicated he was intoxicated, the failure to obtain from defendant a waiver of his constitutional right to testify was not fundamental error, and the trial court’s failure to instruct the jury on the definitions of justifiable and excusable homicide was not fundamental error.

Defendant went to the department store in Sarasota where his estranged wife worked, called her away from a customer, and fired four shots at her which caused serious injuries. City police officers responding to the scene were told that the victim’s husband was the suspect and were given a description of defendant’s car and the license tag number. The officers proceeded to defendant’s home. Defendant was not there, but a neighbor advised the police that defendant had a friend living on Siesta Key. At the friend’s residence, which was outside the City of Sarasota, the officers saw defendant’s car pull into the driveway and saw defendant enter the house. The officers entered the house with guns drawn and yelled, “Police.” Defendant was arrested and later made a statement at the police station.

Defendant filed a motion to suppress the statement and the gun the officers took from him. The basis for the motion was that the officers were outside their jurisdiction when they arrested him. While we agree with defendant that under the facts of this case, the arrest was not lawful on the basis of the “fresh pursuit” doctrine, see State v. Phoenix, 428 So.2d 262 (Fla. 4th DCA 1983); State v. Williams, 366 So.2d 135 (Fla. 2d DCA 1979), we find that the arrest was a valid citizen’s arrest. A police officer cannot use the color of his office to obtain evidence, not obtainable by a private citizen, upon which to base a citizen’s arrest. In this case, however, the officers had sufficient, valid grounds on which to make the arrest before they left their jurisdiction. Thus, the arrest was proper as a citizen’s arrest, and the evidence obtained after the arrest was admissible at trial. See State v. Phoenix, supra; State v. Williams, supra.

Defendant also argues that the trial court erred in allowing the admission of testimony establishing that defendant’s wife prior to the shooting had obtained an order restraining defendant from bothering, threatening or harming her. Defendant argues that this evidence was irrelevant to the issues at trial and was prejudicial because it portrayed defendant as having violent characteristics. The state argues that the testimony was properly admitted pursuant to section 90.404(2)(a), Florida Statutes (1983), to show defendant’s intent. We agree with the state for the following reasons.

Before any testimony was given regarding the restraining order, the wife testified without objection concerning an occasion when her husband hit her. If, as defendant argues, the testimony about the restraining order was also evidence regarding defendant’s prior violence towards his wife, we do not believe there was error in its admission. The evidence was relevant to the issue of premeditation. One of defendant’s defenses at trial was lack of premeditation. “Evidence from which premeditation may be inferred includes ... previous difficulties between the parties .... ” Sireci v. State, 399 So.2d 964, 967 (Fla.1981). See also King v. State, 436 So.2d 50, 54-55 (Fla.1983) (evidence that defendant severely beat victim twenty-three days before killing her was relevant to premeditation); Wooten v. State, 398 So.2d 963, 968 (Fla. 1st DCA 1981) (evidence that defendant previously beat or physically mistreated one-year-old murder victim or victim’s two-year-old sister was properly admissible).

Defendant’s third point on appeal is that the trial court erred in not allowing a witness to testify about the difference between two samples of defendant’s handwriting. One of defendant’s defenses was that he was intoxicated at the time of the shooting. The witness, who was familiar with defendant’s signature, would have been asked to inspect a document signed at the time of defendant’s arrest and one signed the next day. We believe the trial court’s refusal to permit the testimony was correct. The jury could have observed any differences in the signatures on its own and did not need this witness’ assistance for that purpose. If defendant wanted to introduce testimony that any difference in the signatures was caused by intoxication, the proper person to testify would have been an expert, not a lay witness.

Defendant’s fourth point on appeal is that fundamental error occurred because defendant himself did not waive, either in writing or on the record, his constitutional right to testify. Defendant cites People v. Curtis, 681 P.2d 504 (Colo.1984). We disagree. See this court’s recent opinion on this issue in Cutter v. State, 460 So.2d 538 (Fla. 2d DCA 1984).

As his final point on appeal, defendant argues that the trial court erred in failing to include in the jury instructions the definitions of justifiable and excusable homicide. We agree that these definitions are necessary parts of the manslaughter instruction which was otherwise given. In this case, however, defendant made no request for those instructions and did not object to the instructions as given. Also, we do not believe the evidence would have justified a jury finding of justifiable or excusable homicide even if those terms had been defined. As the Florida Supreme Court said in Squires v. State, 450 So.2d 208, 211 (Fla.1984),

In the absence of fundamental error, failure to object to the instructions as given precludes review of those instructions on appeal_ Where defendant is convicted of first-degree murder an error or omission in an instruction on the lesser included offense of manslaughter is not fundamental error.

Squires concerned a conviction for first degree murder, but we believe that the language is equally applicable to this case involving attempted first degree murder. See also Brown v. State, 124 So.2d 481 (Fla.1960).

AFFIRMED.

RYDER, C.J., and CAMPBELL, J., concur.


text:
    Robert J. OVERCASH d/b/a Fashion Warehouse, Appellant, v. NEW HAMPSHIRE INSURANCE GROUP, Appellee.
    No. AY-46.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1984.
    Rehearing Denied Feb. 8, 1985.
    Jim J. Austin, Panama City, for appellant.
    John N. Boggs, III, of Barron, Redding, Boggs, Hughes, Fite, Bassett & Fenson, Panama City, for appellee.
   PER CURIAM.

We affirm the final judgment rendered in favor of appellee, New Hampshire Insurance Group, on its counterclaim. There is adequate support in the record for the circuit judge’s apparent conclusion that there was no justification for the granting of equitable distribution, attorney’s fees or costs in favor of appellant.

The trial judge was faced with an ambiguous modification receipt together with the independent actions of the parties which culminated in the delivery of two separate checks from the tortfeasor’s carrier to appellant. The record is clear that the tort-feasor’s carrier intended to settle the claim of appellant as well as the subrogation claim of appellee through the issuance of the two checks. Prior to filing suit against the tortfeasor, appellant had accepted a settlement check in the amount of $9,034.18, from New Hampshire, his own insurance carrier. New Hampshire then filed a subrogation claim for this amount with the tortfeasor’s insurance carrier. The tortfeasor’s carrier acknowledged receipt of the claim and advised New Hampshire that the subrogation claim would be settled when the pending law suit was completed.

Appellant settled with the tortfeasor’s carrier for $26,000.00. Two drafts were mailed to appellant’s attorney. One check, in the amount of $9,034.18, was made payable to appellant, his attorney, and the New Hampshire Company. The second check, in the amount of $16,965.82, was made payable to appellant and his attorney. Clearly, the $9,034.18 was intended by the tortfeasor’s carrier as settlement of the subrogation claim.

The judgment appealed from is AFFIRMED.

JOANOS, WIGGINTON and BAR-FIELD, JJ., concur.


author: CAMPBELL, Judge.

text:
    Harry A. PARMENTER, as personal representative of the Estate of Curtis James Parmenter, a minor, Appellant, v. DAVEY TREE EXPERT COMPANY, an Ohio corporation, et al., Appellees.
    No. 84-906.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1984.
    Rehearing Denied Jan. 30, 1985.
    Terence Matthews of Law Office of Terence Matthews, Chartered, Bradenton, for appellant.
    Donald V. Bulleit and Nelly N. Khouzam of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appel-lee Davey Tree Expert Company.
   CAMPBELL, Judge.

Appellant, Harry A. Parmenter, as personal representative of the Estate of Curtis J. Parmenter, a minor, seeks review of the order granting a final summary judgment dismissing appellee, Davey Tree Expert Company, from the case. The trial court found that appellant’s claim was barred by the two-year limitation period provided in section 95.11(4)(d), Florida Statutes (Supp. 1980).

This case arose following the death by electrocution of Curtis J. Parmenter on July 10, 1980.

The morning of July 10, 1980, appellant and his son were using appellant’s aerial truck to trim palm trees. This aerial truck had a boom, and attached to the boom was a bucket designed to contain a person. The person inside the bucket could move it around to facilitate the trimming project. The bucket was designed to be insulated so it could not become electrified. According to testimony available to the trial court, the insulation was rated at 25,000 volts.

At the time of the accident, appellant was inside the bucket trimming trees while his son, the decedent, was standing on the ground touching the front part of the aerial truck. The boom came into contact with a power line and electricity ran down the body of the truck and through the body of the decedent.

Tests revealed that the vehicle had been altered by the replacement of an insulated wire with a steel-braided wire, which caused the electricity to flow through the supposedly insulated turret, or bucket, into the body of the truck.

Appellant had purchased the truck used on November 1, 1979. It had been manufactured by Line Equipment Company, Inc., sold to appellee and repurchased by Line Equipment Company, which resold the truck to appellant. When appellant purchased the truck, all the required documents indicated that appellee was the previous owner. Appellant was also told that the truck had been updated with safety bolts and insulators by appellee.

On July 15, 1981, a complaint was filed against Florida Power & Light Company and Line Equipment Company of North Carolina for the wrongful death of Curtis James Parmenter.

On August 26, 1982, appellee was deposed. Appellant claimed that he was not aware óf appellee’s potential liability until appellee’s deposition was taken. On April 12, 1983, appellant amended his complaint to add appellee as a party defendant.

Appellee filed a motion for summary judgment alleging that the cause of action for wrongful death accrued on July 10, 1980, and that the filing of the wrongful death action against appellee on April 12, 1983, was more than two years after the wrongful death of the decedent and, therefore, the action was barred by the statute of limitations.

On January 20, 1984, the trial court granted appellee’s motion for final summary judgment. The trial court found that appellant had actual notice of the existence and possible liability of appellee prior to the running of the statute of limitations.

On appeal, appellant argues that summary judgment was precluded by the existence of a genuine issue of material fact regarding appellant’s discovery of a possible cause of action against appellee. Appellant claims that contrary to the finding of the trial court, he was not aware of appellee’s potential liability until appellee was deposed on August 26, 1982, subsequent to the running of the statute of limitations. In this particular case, we find that there was clearly sufficient evidence for the trial court to determine that appellant knew or should have known of appel-lee’s potential liability prior to the running of the limitation period in section 95.-ll(4)(d). Cf. Phillips v. Mease Hospital and Clinic, 445 So.2d 1058 (Fla. 2d DCA 1984), pet. for rev. denied, 453 So.2d 44 (1984). Appellant knew at the time of the accident that appellee was the previous owner of the truck, and that appellee had updated the truck with safety bolts and insulators.

Accordingly, we affirm the order of the trial court granting final summary judgment dismissing appellee from the case.

RYDER, C.J., and DANAHY, J., concur.


author: BARFIELD, Judge.

text:
    FEDERAL PROPERTY MANAGEMENT CORPORATION, Appellant, v. HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA (Heartland of Broward), and Department of Health and Rehabilitative Services, Appellees.
    No. AY-470.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1984.
    Rehearing Denied Feb. 15, 1985.

      Robert D. Newell, Jr. of Oertel & Hoffman, Tallahassee, for appellant.
    Alfred W. Clark, of Laramore & Clark, Tallahassee, for appellee Health Care and Retirement.
    Jay Adams, Asst. Gen. Counsel, Tallahassee, for appellee HRS.
   BARFIELD, Judge.

Federal Property Management Corporation (FPMC) appeals a final order denying its petition to intervene in a hearing on an application for a certificate of need (CON) filed by Health Care and Retirement Corporation of America (HCRCA). We reverse.

The issues before us on appeal are: (1) whether the hearing officer erred in determining that the petition to intervene was not timely filed and (2) whether the hearing officer erred in concluding that the petition to intervene did not meet the requirements of Rule 28-5.201(2), F.A.C. and failed to allege a sufficient factual basis to demonstrate standing.

In June of 1982, FPMC applied to the Department of Health and Rehabilitative Services (HRS) for a CON to construct a 240 bed nursing home in Broward County. The application was denied and FPMC petitioned for a 120.57(1) hearing. HCRCA had filed an application to provide similar services in the same county; the denial of its application was also challenged. Both of these cases were consolidated with other cases resulting from challenges to denials of applications submitted in the June-August 1982 batch cycle.

HCRCA filed a second application in October, 1982, which was denied in January, 1983; HCRCA filed a petition for a 120.-57(1) hearing which was assigned DOAH case no. 83-882.

After a series of continuances, final hearing in case no. 83-882 was scheduled for January 18, 1984. The consolidated cases from the June-August 1982 batch cycle were set for hearing five days later on January 23, 1984. Having learned of the January 18 hearing date from a review of the HRS litigation calendar, FPMC on January 12 filed a petition seeking intervention in case no. 83-882 and consolidation of that case with the consolidated cases set for hearing on January 23.

After a January 13 hearing on the petition to intervene, the hearing officer issued an order on January 16 denying intervention and deferring ruling on consolidation. On February 16, 1984 the hearing officer submitted a recommended order to HRS recommending that a CON be awarded to HCRCA and referencing the January 16 order denying intervention. On April 4, 1984, HRS adopted the recommended order in its entirety. FPMC appeals from the final order of HRS adopting the recommended order of the hearing officer and thereby denying intervention in case no. 83-882.

In reversing the order, we find it necessary to review the historical perspectives of the CON procedure and point out to HRS and DOAH the need for agency articulation of policy by rulemaking to prevent unnecessary confusion and delay in the CON application process.

In an effort to contain the rising costs of health care, the National Health Planning and Resources Development Act of 1974 (42 U.S.C. See. 300k et seq.) requires that a state provide a certificate of need program in order to qualify for financial grants under federal health programs. The Florida certificate of need program, contained in the Health Facilities and Health Services Planning Act, sections 381.493-381.497, Florida Statutes, is administered by HRS. The procedure for issuance of CON, and the criteria to be applied in the review of such applications, are found in chapter 10-5, Fla. Admin. Code.

A pair of 1979 district court of appeal opinions held that where applications for CON were “mutually exclusive” the agency is required to conduct a comparative hearing at which the competing applications are considered simultaneously. In Bio-Medical Applications of Clearwater, Inc. v. Department of Health and Rehabilitative Services, Office of Community Medical Facilities, 370 So.2d 19 (Fla. 2d DCA 1979), the court relied upon the “Ash-backer” doctrine in holding that denial of a competing applicant’s motion for consolidation constituted a material error in procedure requiring that the matter be remanded for further agency action. In Ashbacker Radio Corporation v. Federal Communications Commission, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945), the Supreme Court laid down a general principle that an administrative agency is not to grant one application for a license without some appropriate consideration of another bona fide and timely filed application to render the same service. The Second District Court of Appeal observed that where a need is determined in accordance with a quantitative standard, opposing applicants necessarily become competitors for the fixed pool of needed investments, so that their applications are mutually exclusive within the meaning of Ashbacker.

In Bio-Medical Applications of Ocala, Inc. v. Office of Community Medical Facilities, Department of Health and Rehabilitative Services, 374 So.2d 88 (Fla. 1st DCA 1979), although not citing Ashbacker, the court held that competing applicants for certificates of need for a renal dialysis facility were mutually exclusive, that each applicant was one “whose substantial interest [would] be affected by proposed agency action” on the other’s application, and that each was therefore a “potential party” to proceedings on the other’s application, so that Bio-Medical was entitled'to request a hearing on its competitor’s application.

Subsequently, section 381.494(5), Florida Statutes, was amended to require “batching” of CON applications. Pursuant to the statutory requirement, HRS amended Rule 10-5.08 to delineate the procedures to be followed by the applicants and by the agency-

Assuming that all applications submitted in an earlier batching cycle are completely disposed of before disposition of applications in a subsequent batching cycle, the department rules appear adequate to satisfy the requirements of the statute and case law. However, where continuances are granted so that a situation is created in which formal hearings on applications from two separate batching cycles are pending at the same time, difficulty arises in applying the Ashbacker doctrine and in balancing the competing interests of the applicant, the agency and the public. While there, may be some difference of opinion regarding whether applicants in a later batching cycle are entitled to intervention in and consolidation with proceedings to dispose of earlier batched applications, it seems obvious that applicants from earlier batched cycles are entitled to intervention in proceedings to dispose of later batched applications, where the hearing on the later batched applications is held prior to the hearing on the earlier batched applications. To hold otherwise would be to allow circumvention of the fundamental doctrine of fair play laid down by the Supreme Court in Ashbacker “which administrative agencies must diligently respect and courts must be ever alert to enforce.” Bio-Medical Applications of Clearwater, Inc., 370 So.2d at 23.

Contrary to the hearing officer’s findings, which were impliedly adopted by the agency, appellant’s petition to intervene and consolidate contains sufficient allegations to demonstrate its standing to intervene. Although the petition does not strictly comply with Rule 28-5.201(2), F.A.C., we find that the hearing officer abused his discretion in not affording appellant an opportunity to amend its pleadings.

The hearing officer based his decision not to allow leave to amend on his conclusion that to do so would allow appellant to seek intervention in contravention of the time constraints prescribed by Rule 28-5.201. However, we agree with appellant that the hearing officer incorrectly interpreted Rules 28-5.103 and 28-5.207, and that his determination that the petition was untimely filed is therefore incorrect. Reading these two rules together, we conclude that the administrative rules regarding time computation were not intended to be identical to the Florida Rules of Civil Procedure regarding time computation and that the provision of Rule 1.090(a), Fla.R.Civ.P. providing for exclusion of Saturdays, Sundays, and legal holidays when the period of time allowed is less than seven days, was not meant to be included in the administrative rules. If the agency wishes to include such a provision in its rules, it should do so expressly.

The final order denying appellant’s petition to intervene is REVERSED,

SMITH and ZEHMER, JJ., concur.


author: ORFINGER, Judge.

text:
    David W. MacFARLAND, Appellant, v. STATE of Florida, Appellee.
    No. 84-747.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    Rehearing Denied Jan. 18, 1985.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

The appellant plead guilty to a charge of burglary of a dwelling, a second degree felony. He appeals a sentence of three years’ imprisonment followed by seven years’ probation. Appellant’s recommended guidelines sentence was three years’ incarceration. We affirm.

The crime for which appellant was sentenced and the sentencing itself took place prior to July 1, 1984. At that time, Committee Note (d)(12) to Rule 3.701, Florida Rules of Criminal Procedure provided :

The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 11 are complied with.

Rule 3.701(d)(ll) however, authorizes departures from guidelines sentences when clear and convincing reasons are stated for such departure. Here, the court announced that it was considering appellant’s prior record (the incarceration here was to be consecutive to a sentence presently being served) and the fact that the victims had suffered a great monetary loss for which appellant should be required to make restitution. The court concluded that restitution could be effected only if appellant got his life in order under supervision and became employed. It is clear from the record that the court believed that supervised probation was required for a lengthy period to enable appellant to make restitution of the $8,000 he had taken from the victims. Appellant’s prior record is a valid basis for departure, Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984), as is the extent of the economic loss to the victims, Hankey v. State, 458 So.2d 1143 (Fla. 5th DCA 1984). In the light of the finding by the trial court that the lengthy period of supervised probation was required so as to enforce the required restitution, we cannot say that the court abused its sentencing discretion in departing from the recommended sentence. Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984).

AFFIRMED.

COBB, C.J., and COWART, J„ concur.

      . Effective July 1, 1984, Committee Note (d)(12) to Rule 3.701, Fla.R.Crim.P. has been amended to read:
      If a split sentence is imposed ... the incarceration portion imposed shall not be less than the minimum of the guideline nor exceed the maximum of the range. The total sanction (incarceration and probation) shall not exceed the term provided by general law. [Emphasis added].

        See, The Florida Bar: Amendments to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So.2d 824 (Fla.1984), and Chapter 84-328, Laws of Florida (1984).


text:
    W.R. (Ray) DANIEL, Jr., Property Appraiser of Hillsborough County, Appellant, v. CANTERBURY TOWERS, INC., Appellee/Cross-appellant.
    No. 83-1864.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1984.
    As Amended Jan. 30, 1985.

      John A. Curtiss, David C.G. Kerr and Ted R. Manry, III, of MaeFarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Edward M. Waller and Thomas P. Scar-ritt, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appel-lee/ cross-appellant.
   CAMPBELL, Judge.

Appellant, W.R. (Ray) Daniel, Jr., as Property Appraiser of Hillsborough County, appeals an amended final judgment which invalidated his property assessments for ad valorem taxes assessed against ap-pellee, Canterbury Towers, Inc., for the 1979, 1980 and 1981 tax years. Appellee cross-appeals that portion of the amended final judgment which affirmed appellant’s denial of appellee’s claim for charitable exemptions for 1979, 1980 and 1981. The trial court, in its amended final judgment after invalidating appellant’s assessments of appellee’s property for the three tax years in question, made its own determination of the assessed value of appellee’s property.

On appellant’s appeal, we reverse the invalidation of appellant’s assessments and the trial court’s reassessments of appellee’s property for the tax years 1979, 1980 and 1981.

On appellee’s cross-appeal, we affirm the trial court’s approval of the denial by appellant of appellee’s claim for charitable exemption for the tax years 1979, 1980 and 1981.

We dispose of the cross-appeal first. Appellee/cross-appellant attacked the denial of its claimed charitable exemptions on the basis of a constitutional challenge to section 196.012(6) and section 196.1975, Florida Statutes (1979). The essential basis of appellee/cross-appellant’s challenge to those statutes was that they were unconstitutionally vague in supplying inadequate guidelines for determination of the charitable exemptions provided therein. That attempt to support a claimed charitable exemption from taxes by a constitutional attack on the validity of the very statutes providing for such an exemption must obviously fail. Section 3(a), Article VII, Constitution of the State of Florida, provides only for a charitable exemption when provided by general law. Thus, if the law which grants the exemption is declared invalid, there is no' exemption. To his credit, counsel for appellee/cross-appellant acknowledged at oral argument the fatal flaw in their “Catch 22” argument against the constitutional validity of the exemptory statutes.

In reversing the trial court’s amended final judgment on appellant’s appeal therefrom, we are required to construe section 193.011, Florida Statutes (1979), to determine whether appellant acted in compliance with the statute in assessing appel-lee’s property. The trial court concluded he did not, however, we respectfully find otherwise. Our examination of section 193.011, and our determination of appellant’s compliance is controlled by the holding in Blake v. Xerox Corp., 447 So.2d 1348 (Fla.1984), as later enunciated herein. A look at some of the essential facts of this case is necessary.

Appellee was incorporated in 1976, as a Florida nonprofit organization. It owns two contiguous parcels of Hillsborough County real property which are improved with a fifteen-story condominium-type building known as “The Canterbury Tower.” This structure contains 125 residential apartment-type living units, as well as kitchen, dining and nursing facilities.

The real property is utilized by appellee as a life care facility which has been licensed under chapter 400, Florida Statutes (Nursing Facilities) and chapter 651, Florida Statutes (Life Care Facilities).

The property was purchased by appellee for $4,500,000 in 1976. The valuation assessment by the property appraiser and the assessments as judicially determined by the trial court are as follows:

Assessment by Property Assessment
Year _Appraiser_ by Trial Court
1979 $4,445,045 $4,173,354
1980 $5,675,910 $3,341,563
1981 $5,675,910 $3,930,575

Appellee offers its residents the benefit of a health care facility immediately adjacent to the living units and it contracts with them to care for them for the rest of their lives on the basis of the nonrefundable entrance fee paid upon admission. These entrance fees (sometimes referred to as “Entrance Endowments”) have varied depending upon the size of the particular living unit.

Entranee Endowment Fees for Least Year Expensive Unit Entrance Endowment Fees for Most Expensive Unit
1978 $22,450 $50,950
1979 $23,450 $50,950
1980 $24,950 $54,950
1981 $28,950 $64,500

Monthly service fees charged at “The Canterbury Tower” vary depending upon the size of the unit as follows:

Monthly Service Pee for Least Year Expensive Unit Monthly Service Pee for Most Expensive Unit
1978 $295 $495
1979 $340 $570
1980 $396 $664
1981 $455 $764

Only “financially responsible” applicants are accepted for residency. All are subjected to a financial screening process. “Entrance Endowments” paid by residents to gain admission to “The Canterbury Tower” are deposited in an escrow fund utilized for servicing the mortgage on the premises. At the end of 1981, this fund amounted to approximately $1,000,000.

Appellee provides the following services to its residents: one meal per day, special diet entries, air conditioning, heating, electricity, water and telephone service, building janitor and maintenance, weekly housekeeping services, weekly laundry service, planned social and cultural recreational activities, emergency nursing service, as well as private health care service, all of which significantly increase appellee’s operating expenses.

“The Canterbury Tower” is operated by a professional management company which, in 1981, charged $6,250 per month, and an apparent consulting fee of $260,000.

Although the usual or normal operating ratio of expense to gross income for commercial apartment houses in Hillsborough County has been determined to be in the range of forty to forty-five percent, the actual operating ratio for appellee is seventy-two percent.

The premises owned by appellee was, at the times in question, encumbered by a purchase money mortgage in the amount of $4,500,000.

In the event that a resident, due to illness, must be transferred into the medical facility, then the management may, upon deciding that the individual can no longer function on their own, re-sell the residential living unit. There are, in actuality, no sales of interest in real property to the residents of “The Canterbury Tower.” What occurs is that the resident receives a “license” to occupy a residential unit during the remainder of his life.

The medical/nursing facility of appellee has been granted a charitable exemption from taxes pursuant to sections 196.012 and 196.1975. Appellee’s financial data co-mingles income and expense figures applicable to the individual residential units on one hand, and the tax exempt medical/nursing facility on the other.

At its inception in 1977, appellee enjoyed substantial proceeds from the sale of its housing units. As units were sold to permanent residents, however, appellee experienced a significant drop in sales proceeds. Specifically, the amount decreased from approximately $4,500,000 for the first three years, to between $300,000 to $400,000 for the years 1980 and 1981.

When the appellant valued appellee’s property in 1979 through 1981, he used the cost approach to make the valuation. The building was treated as a “special purpose” property, and the entire parcel appraised solely by use of the cost approach. A “special purpose” property is one that cannot easily be converted to another use and that has no ready market value, rental value or income stream.

While appellee experiences somewhat of an income stream, the appellant in this case felt the income approach was too complicated to apply because of the complications and imbalance caused by the entrance and monthly fee charges. While appellant never had actual expense or income figures in connection with the property, he did have available the general scheme of monthly charges, entrance fees and overall expense figures which were not broken down between those attributable to the residential units and those attributable to the medical/nursing facility. Because of the dual nature of the facility and the complications caused by attempting to accurately predict any stability in the income approach over the years, appellant concluded that appel-lee’s property was “special purpose” type property for which a cost approach for assessment purposes would be more realistic and accurate than an income approach. The trial court concluded that appellant’s assessments were invalid for his failure to properly consider and utilize the income approach.

Pursuant to section 193.011, Florida Statutes, there are certain “factors” which a property appraiser must take into consideration in arriving at an evaluation for ad valorem tax purposes. These statutory factors are:

(1) The present cash value of the property;

(2) The property’s present use and the highest and best use to which the property can be expected to be put in the immediate future;

(3) The location of the property;

(4) The quantity or size of the property;

(5) The cost of the property and its present replacement value;

(6) The condition of the property;

(7) The income from said property; and

(8) The net proceeds of sale thereof.

Because of the highly discretionary and judgmental character of the property appraiser’s work, the Florida Supreme Court has prescribed a very limited scope of judicial review for property appraiser assessments. In Folsom v. Bank of Greenwood, 120 So. 317, 318 (Fla.1929), it held:

The prima facie correctness of an assessment when made by the proper officers must be affirmatively overcome by appropriate and sufficient allegations and proofs excluding every reasonable hypothesis of a legal assessment.

See 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); Powell v. Kelly, 223 So.2d 305 (Fla.1969).

The principle that the property appraiser’s assessment may be judicially overturned only if there is no reasonable hypothesis to support it, has also been followed by the decision of the various district courts of appeal. Exchange Realty Corp. v. Hillsborough County, 272 So.2d 534 (Fla. 2d DCA 1973); Tampa Coca-Cola Bottling Co. v. Walden, 230 So.2d 52 (Fla. 2d DCA 1969); Harbond, Inc. v. Anderson, 134 So.2d 816 (Fla. 2d DCA 1961); Atlantic International Investment Corp. v. Turner, 383 So.2d 919 (Fla. 5th DCA 1980); Hecht v. Dade County, 234 So.2d 709 (Fla. 3d DCA 1970); Keith Investments, Inc. v. James, 220 So.2d 695 (Fla. 4th DCA 1969); Florida East Coast Ry. v. Green, 178 So.2d 355 (Fla. 1st DCA 1965).

It seems in most cases, as here, that the principal argument between the taxpayer and the property appraiser occurs over the extent of the consideration the property appraiser must afford each of the factors. Certainly, a property appraiser cannot simply “out of hand” reject, without any consideration, one of the factors as being inappropriate. However, the opposite principle, that after considering a factor, the property appraiser cannot reject it as being inappropriate under the circumstances of the particular case, is not correct either. Ap-pellee here seems to seek imposition of a rule that would require an appraiser to consider in depth all of the particulars concerning a specific factor even when that specific factor, from a consideration of all of the factors, has been determined to be inappropriate to the instant case.

In the case at bar, there is ample evidence that the property appraiser did, in fact, consider all the factors enumerated in section 193.011, Florida Statutes (1981). There is absolutely no evidence in the record that he failed to consider any one of these statutory factors. In any assessment situation, some of the particular factors of the statute will, if relied upon, “primarily” or “exclusively” produce a different valuation than will others. In the case at bar, appellee’s peculiar and unique income flow, if used as an “income approach” for the purpose of fixing valuation, will produce a lower value than if either the “cost approach” or the real rental value is utilized. That alone is no basis for invalidating the property appraiser’s decision. Keith Investments, Inc. v. James.

The reason for the “no reasonable hypothesis” doctrine with respect to the judicial review of property appraiser decisions, is that there are numerous, and sometimes conflicting, appraisal theories or techniques for establishing an opinion as to real estate value. All of these theories and approaches have general recognition, and none are necessarily more appropriate than others for all cases.

It is because there are so many well recognized approaches and techniques for arriving at an appraisal decision that the property appraiser’s decision may be overturned only if there is no reasonable hypothesis to support it. It is well established in the Florida law of ad valorem tax assessment, that where the unique or special purpose nature of the property makes it difficult or impossible to establish a market value for it, as is the case for the property involved in this case, then the valuation process should comprehend and give effect to all of the factors that go to make up the intrinsic value of the property. Hillsborough County v. Knight & Wall Co., 153 Fla. 346, 14 So.2d 703 (1943); Calder Race Course, Inc. v. Overstreet, 363 So.2d 631 (Fla. 3d DCA 1978); Dade County v. Miami Herald Publishing Co., 285 So.2d 671 (Fla. 3d DCA 1973).

While a property appraiser must consider each of the factors set out in section 193.011, he is free to assign to each factor such weight as he deems proper. Even where each of several different factors might be proper, the selection of one over the other is not necessarily invalid. An appraiser is not required to give all factors equal rate so long as each factor is carefully considered and given such weight as the facts justify. Bath Club, Inc. v. Dade County, 394 So.2d 110 (Fla.1981); Straughn v. Tuck, 354 So.2d 368 (Fla. 1978); Bystrom v. Equitable Life Assurance Society, 416 So.2d 1133 (Fla. 3d DCA 1982); Lanier v. Walt Disney World Co., 316 So.2d 59 (Fla. 4th DCA 1975).

As was held in Blake v. Xerox Corp., if the evidence shows an appraiser properly considered the statutory factors (which we conclude is the case here), then:

[T]he only remaining question was whether the appraiser, following the law, could conceivably and reasonably have arrived at the appraisal value being challenged. Although the trial court appears to have grounded its judgment on the finding that Xerox had failed to prove that its method was superior, this finding was unnecessary to the judgment. Regardless of which method was theoretically superior, the trial court was bound to uphold the appraiser’s determination if it was lawfully arrived at and within the range of reasonable appraisals, that is, if it was supported by any reasonable hypothesis of legality.

We, therefore, reverse the trial court on appellant Daniel’s appeal and direct, on remand, that appellant’s appraisals for the years in question be reinstated. We affirm the trial court on appellee’s cross-appeal.

Reversed in part, affirmed in part and remanded for treatment consistent herewith.

RYDER, C.J., and BOARDMAN, J., concur.