author: SHARP, W., J.

text:
    ESTATE OF Gertie Mae YOUNGBLOOD, et al., Appellants/Cross-Appellees, v. HALIFAX CONVALESCENT CENTER, LTD., etc., et al., Appellees/Cross-Appellants.
    No. 5D02-1957.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2004.
    Rehearing Denied June 10, 2004.

      Bennie Lazzara, Jr., Susan B. Morrison, and John R. Cummings of Wilkes & McHugh, P.A., Tampa, for Appellant/Cross-Appellee.
    Scott A. Mager, Elaine J. LaFlamme, and Mager Shafer, Ft. Lauderdale, and Stephen B. Sambol of Alvarez, Sambol, Winthrop and Madson, P.A., Orlando, for Appellee/Cross-Appellant.
   SHARP, W., J.

Rosa Abner, the daughter of Gertie Mae Youngblood, appeals from a final judgment in favor of Delta Health Group (“Delta”). On July 7, 1998, Abner filed suit against Halifax Convalescent Center, Ltd. and Halifax Convalescent Center, Inc. (collectively referred to hereafter as “Halifax”), in her capacity as guardian of Youngblood. Abner sought damages for the alleged negligent treatment and care of Youngblood, and deprivation of her nursing home rights established by Chapter 400, which Young-blood experienced while she was a resident of the nursing home owned and operated by Halifax. On February 1, 1998, the nursing home where Youngblood resided was sold and Delta assumed its operation. Youngblood remained a resident of the nursing home under Delta’s care until July 8, 1998, when Abner transferred her to another nursing facility because she was not satisfied with the care her mother was receiving.

After Youngblood died on January 18, 2000, Abner continued the litigation as her mother’s personal representative and joined Delta in the lawsuit, asserting common law negligence claims and deprivation of Youngblood’s Chapter 400 rights for the time Youngblood was a resident while Delta operated the nursing home. Abner added a claim that deprivation of Young-blood’s Chapter 400 rights caused her mother’s death, and she sought punitive damages.

Prior to trial, Abner settled with Halifax. Delta filed a motion for summary judgment as to the Chapter 400 claims, because there was no evidence (as Abner admitted) that a violation of Youngblood’s Chapter 400 rights caused her death. The trial court granted summary judgment as to the Chapter 400 claims, relying on Beverly Enterprises-Florida, Inc. v. Knowles, 766 So.2d 335 (Fla. 4th DCA 2000). The ease proceeded against Delta solely on the common law negligence claims. At the close of the evidence, the trial judge directed a verdict against Abner on punitive damages, and the jury returned a verdict for Delta on the common law negligence claims.

Abner argues on appeal that the trial court abused its discretion in allowing Delta to peremptorily challenge the only two African-American persons on the venire. Abner and Youngblood are of African-American descent. Abner also argues that Beverly Enterprises-Florida, Inc., was decided incorrectly and that this court should reject the holding in that ease. We agree on both grounds.

Delta cross appeals the trial court’s denial of its motion for attorney’s fees pursuant to section 57.105, Florida Statutes. We affirm, finding that this lawsuit was not one for which section 57.105 fees should have been awarded, under either the 2001 version of the statute or the prior version, whichever may be applicable. Delta also cross appeals the trial court’s refusal to include Halifax on the verdict form as a Fabre defendant. We also affirm that ruling. The record discloses that this case was tried with a clear time line demarcation of liability between Halifax and Delta. Delta took the position that it was the successive operator of the nursing home, following Halifax’s operations, and any defects or failures of Halifax’s treatment of Youngblood occurred before and were separate from any activities undertaken by Delta. Delta’s briefs filed in this cause also assert that any negligence which occurred, happened while Halifax was operating the nursing home and that it was responsible only for operation of the nursing home activities after it assumed control. Thus, any claim or theory that Delta may have had as a joint tortfeasor with Halifax has been waived.

I. Peremptory Challenge

Abner argues that the trial court failed to evaluate the reasonableness, accuracy and genuineness of the reasons given by Delta for peremptorily challenging the only two African-American venire persons in this case, pursuant to the directives of Melbourne v. State, 679 So.2d 759 (Fla.1996). Melbourne sets out a three-step process for determining whether a party is exercising a peremptory challenge against a juror for unconstitutional and improper (here race-based) reasons. This case involves the third step.

In Melbourne, the court said that in undertaking the third step, the trial court should consider the circumstances surrounding the strike, to determine the genuineness and credibility of the reasons given for the strike. The reasonableness of the grounds given may be a part of this consideration.

Relevant circumstances may include— but are not limited to — the following;the racial make-up of the venire; pri- or strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror, or singling the challenged juror out for special treatment.

679 So.2d at 764, n. 8. In this case, the record demonstrates that all of the factors mentioned in Melbourne for a step-three determination indicate at least one African-American venire person in this case was struck for pretextual reasons.

Delta exercised a peremptory challenge against juror Number 12, Irvin, one of the only two African-American persons on the venire. Counsel for Abner raised a Neil objection. Delta’s counsel cited Irvin’s work and experience in health care. Irvin had worked in a doctor’s office who practiced urology, and had helped to position patients during various procedures, including those using foley catheters. Part of the evidence in this case of Delta’s mistreatment of Youngblood was that a foley catheter was improperly removed, thereby causing Youngblood severe pain. Counsel also said Irwin made various facial gestures or nods during voir dire questioning, which indicated a bias in favor of the plaintiff.

These physical gestures are not documented on the record. But we note that the trial judge accepted Delta’s counsel’s statements and we as appellate judges cannot deny that they occurred. Counsel for Delta also noted that Delta had accepted another African-American woman, Morris, on the jury to bolster his assertion that the strike was race-neutral. Based on this record, we affirm the trial court’s decision to allow the peremptory challenge as to Irvin. See Young v. State, 744 So.2d 1077, 1084 (Fla.1999); Greene v. State, 718 So.2d 334, 335 (Fla. 3d DCA 1998).

Later in the jury selection process, the trial judge asked Delta’s counsel if he had any other strikes. He said he was going to exercise a peremptory challenge on Morris, the African-American woman he had earlier accepted as a jury member. This left the venire without any African-American members. Counsel for Abner objected and demanded a race-neutral reason, because striking Morris would leave the venire without an African-American. The trial judge asked for reasons. Delta’s counsel said:

She had a family history of having a grandfather who had a stroke resulting in neurologic deficits that included right-sided weakness. The plaintiff also had a stroke, suffered from the same neuro-logic deficits. It may be too close, (emphasis supplied).

The court asked him to repeat this and Delta’s counsel said:

Her grandfather who had a stroke very similar to the stroke that was suffered by Gertie Youngblood. And we’re just not comfortable with having a juror who’s going to basically be hearing about an individual who had the same deficits, the same problems as the stroke victim, just like her grandfather was, who apparently she was very dose to. (emphasis supplied).

Counsel for Abner pointed out that the reasons given by Delta’s counsel were not supported by what Morris had said, and that they in fact applied more accurately to another juror, Sholes (a Caucasian female), who was not challenged and who ended up serving on the jury. In an effort to distinguish why he struck Morris and not Sholes, the attorney for Delta said Sholes’ grandmother had a “different stroke and it did not result in a significant deficit.” The trial court accepted the strike against Morris without further inquiry. However, an examination of the record discloses that both counsel and the trial judge may have been confused about the responses of the two jurors.

The record discloses that, during voire dire, Morris said that when she was seven years old her grandfather had a stroke and was paralyzed on his left side. His speech was not affected. Morris did not describe his neurological deficits and said nothing about visiting him often or being “close” to him. The stroke had occurred some 20 years earlier and Morris was a mature, married woman with a post graduate degree, who was employed as a high school math teacher at the time of the trial.

During voir dire, Sholes said that six or seven years ago her grandmother had a stroke, and was in two nursing homes over a three-year period. Thereafter, she visited her grandmother every few weeks, traveling to Dade County. The grandmother was unable to care for herself. She eventually died of old age. Sholes did not describe what kind of stroke her grandmother suffered or what her neurological deficits were.

Florida courts have repeatedly held it is racially discriminatory to exercise a peremptory challenge against a person who is a member of a minority group where the proffered race-neutral reasons apply equally to a juror of another racial group, who has not been challenged. See Hall v. Daee, 602 So.2d 512 (Fla.1992); Fleming v. State, 825 So.2d 1027, 1029 (Fla. 1st DCA 2002); Smith v. State, 799 So.2d 421, 425 (Fla. 5th DCA 2001); Daniel v. State, 697 So.2d 959, 960-61 (Fla. 2d DCA 1997); Richardson v. State, 575 So.2d 294 (Fla. 4th DCA 1991). In this case, the reasons given to strike Morris apply even more strongly to Sholes, and Delta’s counsel’s efforts to distinguish Morris from Sholes are not supported by the record.

Accordingly, this case must be reversed for a new trial. Williams v. State, 574 So.2d 136 (Fla.1991); State v. Slappy, 522 So.2d 18 (Fla.1988); Shuler v. State, 816 So.2d 257 (Fla.2d DCA 2002); McCarter v. State, 791 So.2d 557 (Fla.2d DCA 2001); Daniel v. State, 697 So.2d 959 (1997). We can only conclude that the trial court erred in not ruling that the reasons given by Delta’s counsel to challenge Morris were pretextual. Fleming; Gilliam v. State, 645 So.2d 27 (Fla. 3d DCA 1994); Reeves v. State, 632 So.2d 702 (Fla. 1st DCA 1994). Even a single individual strike of an African-American prospective juror that is racially motivated is not permissible. State v. Johans, 613 So.2d 1319 (Fla.1993); Hall; Slappy; Fleming; Suggs v. State, 624 So.2d 833 (Fla. 5th DCA 1993).

II. Chapter 400 Claims Not Resulting in the Death of the Nursing Home Resident and Beverly Enterprises-Florida, Inc. v. Knowles.

At the time this litigation took place, Beverly Enterprises v. Knowles was the only appellate decision in this state which directly addressed the issue of whether Chapter 400 claims of deprivation of a nursing home resident’s rights, which do not cause or contribute to the resident’s death, survive the resident’s death. That case held that pursuant to the version of section 400.023 which was in effect at the time Youngblood died (in 2000), unless the deprivation of a nursing home resident’s rights caused the resident’s death, a personal representative of the deceased resident has no cause of action against a nursing home for deprivation of Chapter 400 rights. The trial court in this case was bound by that decision.

In 2000, section 400.023(2), Florida Statutes (1997) provided:

Any resident whose rights as specified in this part are deprived or infringed upon shall have a cause of action against any licencee responsible for the violation. The action may be brought by the resident or his or her guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative of the estate of a deceased resident when the cause of death resulted from the deprivation or infringement of the decedent’s rights. The action may he brought in any court of competent jurisdiction to enforce such rights and to recover actuarial and punitive damages for any deprivation or infringement on the rights of the resident, (emphasis supplied).

In Beverly Enterprises v. Knowles, decided by our sister court, the nursing home resident suffered serious ailments allegedly because of improper treatment and care in a nursing home. He was transferred to a hospital where he died, but the death was not caused by his alleged poor treatment in the defendant nursing home. Following his death, the deceased resident’s personal representative sued the nursing home for deprivation of the deceased’s Chapter 400 rights. The court thought the language of the statute was so clear that no historical view or interpretation was necessary. It surmised that the Legislature could reasonably have determined that many of the Chapter 400 rights of nursing home residents spelled out in section 400.022 are personal to the resident, such as the right to organize, participate in groups, manage one’s personal affairs, and privacy issues. Thus, the court reasoned, perhaps deprivation of those rights should not survive a resident’s death.

In this court’s opinion in Beverly Enterprises-Florida, Inc. v. Spilman, 661 So.2d 867 (Fla. 5th DCA 1995), approved, Florida Convalescent Centers v. Somberg, 840 So.2d 998 (Fla.2003), we considered the legislative history of section 400.023 in determining a different issue, i.e.: In a lawsuit brought by a personal representative against a nursing home for deprivation of a resident’s Chapter 400 rights, which deprivation is alleged to have caused the resident’s death, is the nature and measure of damages controlled and limited by the Wrongful Death Act, section 768.16? At that time, the section contained the following additional language: “The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the agency.” (emphasis supplied)

In Beverly Enterprises v. Spilman, Judge Peterson quoted extensively from the Legislative discussions in the House when section 400.023 was revised to include the right of a personal representative of a deceased nursing home resident to bring a lawsuit under this chapter. Representative Canady was quoted as explaining that the revision was “simply to extend that cause of action to the personal representative of the estate of a deceased nursing home resident” to enforce Chapter 400 rights. The rights he referenced were:

So essentially, if a resident of a nursing home is mistreated in some way- and that’s really what it all boils down to-then the resident can sue the operator of the nursing home for damages and so on to redress that wrong that has been done.

There is no clear indication from the discussion that the Legislature intended to make only those deprivations resulting in a nursing home resident’s death survive.

We found the statute unclear in Beverly Enterprises v. Spilman, and looked to the public policy behind the Chapter 400 legislation to interpret it. Quoting the answer brief of the Office of State Long Term Care Ombudsman, Judge Peterson noted that were damages in such a case limited to those allowed by the Wrongful Death Act, it would greatly weaken the statute, since it would be much cheaper to kill a nursing home resident than to keep one alive and able to sue for deprivation of Chapter 400 rights. This is so because the elderly, generally frail persons in nursing homes, often have little or no damages to claim under the Wrongful Death Act. Further in 1995, section 400.023 expressly provided that “the remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the agency.”

In the case sub judice, the lawsuit was brought by the guardian, Abner, before the nursing home resident (Youngblood) died. Should all of the alleged deprivation of Chapter 400 rights suffered during Youngblood’s lifetime dissolve simply because they cannot be connected to the cause of her death? The language in section 400.023 makes the answer to this question unclear. Florida Rule of Civil Procedure 1.260(a) provides that when a party to an action dies, and the claim is not extinguished, the court may order substitution of the proper party; ie., here the personal representative.

There is nothing in section 400.023 which provides or infers that once an action is brought and the party later dies, the cause of action also dies with the nursing home resident. It is logical that the survival statute would save the cause of action. It provides:

Actions; surviving death of a party. No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted and defended in the name of the person prescribed by law.

§ 46.021, Fla. Stat.

Thus in a case such as this where the suit was filed before the nursing home resident’s death, all deprivation of Chapter 400 rights, including those resulting in the death of a resident but not exclusive of those, should survive the death of the nursing home resident. See Niemi v. Brown and Williamson Tobacco Corp., 862 So.2d 31 (Fla. 2d DCA 2003). A contrary interpretation would encourage nursing homes to drag out litigation until the nursing home resident dies — not an impractical solution given the age and state of health of most nursing home residents.

However, Delta was an independent party added to this lawsuit after Youngblood died, and thus the fact that Abner sued Halifax initially, and asserted deprivation of Chapter 400 rights prior to Young-blood’s death does not place Delta in the same position as Halifax via the relation-back doctrine. Delta stands in a similar posture to the nursing home defendant in the fourth district’s Beverly Enterprises v. Knowles case. We cannot distinguish that case from the one before us.

In Thompson v. Kindred Nursing Centers East, LLC, 211 F.Supp.2d 1345 (M.D.Fla.2002), the court ruled that a nursing home’s motion to dismiss the Chapter 400 claims not related to causation of the resident’s death should be denied. It is not clear from that case whether it involved the same version of section 400.023(1) that is involved in the case sub judice, or whether the more recent statute governed that lawsuit. In Thompson v. Kindred Nursing, the suit was filed in state court in October of 2001, and removed to the federal court in November 2001. But it is not clear when the nursing home resident died, which would determine which version of section 400.023 applied.

In May of 2001, section 400.023(1) was changed as follows:

(1) Any resident whose rights as specified in this part are violated shall have a cause of action. The action may be brought by the resident or his or her guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, ■'or by the personal representative of the estate of a deceased resident regardless of the cause of death.... If the action alleges a claim for the resident’s rights or for negligence that did not cause the death of the resident, the personal representative of the estate may recover damages for the negligence that caused injury to the resident, (emphasis supplied)

In Thompson, Judge Kovachevich stated that prior to the most recent amendment of section 400.023(1) (quoted above), it was unclear whether a personal representative who filed suit after the nursing home resident died, could recover damages unrelated to the cause of death for a deceased resident’s rights under chapter 400. She noted the conflicting provisions at the end of the 1997 version.

The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any deprivation or infringement on the rights of a resident, (emphasis supplied).

§ 400.023, Fla. Stat. (1997). She concluded the statute was in fact ambiguous, despite the fourth district’s 2000 opinion in Beverly Enterprises v. Knowles, but pointed to the 2001 version of section 400.023 as controlling in that case.

We agree with Judge Kovachevich that under the 1997 version of section 400.023(1), it was not clear whether a personal representative could bring an action for deprivation of Chapter 400 rights of a deceased nursing home resident, if the deprivation of those rights did not cause the death. It would be inequitable to allow non-death causing claims under Chapter 400 to be prosecuted after a nursing home resident’s death by a personal representative where the nursing home resident filed suit prior to death, and yet deny such claims on behalf of a nursing home resident who died before a suit could be brought. This interpretation would make it cheaper to kill a resident than to properly care for him or her, as noted in our Beverly Enterprises v. Spilman opinion, contrary to the stated public policy of the statute. Further, after a resident’s death, it could excuse nursing homes from the duties and obligations established by Chapter 400, to provide proper accounting records, cost statements and justifications, and loss of personal property, which are among the other rights provided in Chapter 400.022.

This is a case in which we think the most recent version of section 400.023 should be employed to determine the true Legislative intent as to the meaning of this older, ambiguous version of the statute. It was unclear before, in our view, and the revision made in 2001 clarifies that the Legislature intended to create a new statutory cause of action for nursing home residents, and that it intended that those statutory rights be upheld and prosecuted if violated, on behalf of the nursing home resident by a proper party or by the resident’s personal representative, even though the deprivations do not cause the resident’s death, and even if the suit is brought after the resident’s death.

On remand, Abner should be entitled to a new trial on her Chapter 400 claims as well as her common law negligence claims. We also agree she should have the opportunity to present evidence on her punitive damage claims. Chapter 400 expressly provides that such damages are available. Section 400.023(5) provides:

For the purpose of this section, punitive damages may be awarded for conduct which is willful, wanton, gross or flagrant, reckless or consciously indifferent to the rights of the resident.

In this case, the trial judge relied on this court’s opinion in Beverly Enterprises v. Spilman in determining that the evidence adduced did not rise to the level required for punitive damages. The judge said of Spilman that he thought it was “one of the worst cases you can imagine.” He continued:

But I think that clearly is the standard that we have to follow. I see no view of the evidence in this case which would warrant a punitive claim either on a direct basis, that is finding some willful wanton and neglect by a supervisory person, nor an indirect view, where there was some gross willful wanton — no even gross, its got to be beyond gross, its got to be willful, wanton, reckless conduct by an employee and some fault by the corporate defendant, (emphasis supplied)

We agree that the evidence of mistreatment and lack of care of Young-blood did not rise to the level in the Beverly Enterprises v. Spilman case. However, the statute does not require such a high bar; it does not require conduct that is “beyond gross.” In Payton Health Care v. Estate of Campbell, 497 So.2d 1233 (Fla. 2d DCA 1986), the court affirmed a punitive damage award based on expert testimony that the nursing care was “an outrageous deviation from the acceptable standard.” An appellate court may affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the non-moving party. Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 329 (Fla.2001).

In this case there was considerable testimony from Delta’s own former employees and Director of Nursing to establish Delta’s abuse of Youngblood. For example, while Delta was in charge, Youngblood developed a new State III pressure sore on her right heel, an unexplained injury to her eye and a contusion which later became infected. While Delta was operating the nursing home, the staff discovered Youngblood’s foley catheter had come out with the bulb fully inflated, causing extreme pain. No pain management was initiated for any of these injuries. A nurse expert testified that the overall care afforded Youngblood by Delta was “outrageously deficient.” This mistreatment was linked to Delta’s conscious decision to keep the facility chronically understaffed due to budget problems.

Based on the mandate to view the evidence in the light most favorable to the party seeking damages and having to view every reasonable inference from that evidence in favor of the party against whom a motion for directed verdict is made, we conclude that a verdict should not have been directed on punitive damages. See Scott v. TPI Restaurants, Inc., 798 So.2d 907, 909 (Fla. 5th DCA 2001); Beverly Enterprises v. Spilman.

We certify a conflict with our sister court in its Beverly decision and reverse for a new trial.

REVERSED; Conflict CERTIFIED.

SAWAYA, C.J., and GRIFFIN, J., concur.

      . The allegations against Delta are, in sum:
      —■ At admission, Gertie had some weakness in her right hand but suffered no cont-ractures, which resulted from her stroke; within three weeks of her admission, she began experiencing painful muscle contrac-tures in all of her extremities, which worsened over time due to Delta's failure to properly care for them.
      — Gertie's records contain a gap of one month (between February 27 and March 26) in which no nurses notes appear.
      •— Delta lost track of Gertie’s whereabouts for one week; a note indicates she was discharged on July 1, 1998; there is no further documentation until July 8, 1998 when a note indicates she was transferred to another facility.
      — Gertie developed numerous pressure ulcers during her residence, and after February 1, 1998, when Delta took over operation, a new Stage III pressure sore developed in her right heel which required a painful debridement.
      — During Delta's ownership, Gertie suffered an unexplained injury to her eye, and a contusion which later became infected.
      — Staff discovered her Foley catheter had come out with the bulb still fully inflated; there was no explanation how this painful event occurred, and no pain assessment or pain management was initiated.
      — Gertie was regularly found her in her own dried feces and urine.
      —■ Gertie regularly suffered from poor hygiene in general, including poor mouth care, uncut and dirty nails, a feeding tube that was too clogged and blocked to allow for feeding, and a room that smelled from urine.
      •— There was chronic staffing problems during Delta's operation of the facility. The Director of Nursing testified that there was a chronic shortage of certified nursing assistants (CNAs) to perform basic custodial care, and he was constantly pressured by Delta’s corporate supervisors to meet the staffing budget. He was even instructed to send CNAs home if he didn't meet the budget numbers. Unlicenced and uncertified CNAs were employed and employees were instructed to engage in fraudulent charting.
      — A nurse testified that Gertie's care during Delta's ownership was outrageous.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993).

      . In Melbourne v. State, 679 So.2d 759, 762 (Fla.1996), the court described the first two steps:
      A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike, [step 1] If these initial requirements are met, the court must ask the proponent of the strike to explain the reason for the strike. At this point, the burden of production shifts to the proponent of the strike to come forward with a race neutral explanation, [step 2]

      . State v. Neil, 457 So.2d 481 (Fla.1984).

      . A juror’s lack of interest, inattentiveness or other nonverbal behavior can constitute a racially neutral reason for a strike. Dorsey v. State, 868 So.2d 1192 (Fla.2003). However, this behavior must have been observed by the trial court or have record support. Dorsey.

      . Receded from other grounds, Melbourne v. State, 679 So.2d 759 (Fla.1996).

      . But see Beverly Enterprises-Florida, Inc. v. Estate of Margaret Maggiacomo, 651 So.2d 816 (Fla. 2d DCA 1995), quashed., 661 So.2d 1215 (Fla.1995); Arthur v. Unicare Health Facilities, 602 So.2d 596 (Fla. 2d DCA 1992).

      . District court opinions bind all Florida courts in the absence of inter-district conflict. See, Pardo v. State, 596 So.2d 665 (Fla.1992); State v. Sanchez, 642 So.2d 122 (Fla. 5th DCA 1994). All judges within a district must follow the ruling of the district court of appeal in that district. Sanchez.

      . See H. Glenn Boggs and Conner, Nursing Home Tort Victims Rights and Remedies, 63 Fla. BJ. 2 at 11 (1989).

      . Section 400.023, Fla. Stat. (1997) provides:

        The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any deprivation or infringement on the rights of the resident.

      . Thomas v. Northside Foods, Inc., 827 So.2d 378 (Fla. 3d DCA 2002); Darden v. Beverly Health & Rehabilitation, 763 So.2d 542, 543 (Fla. 5th DCA 2000).

      . The statute in effect at the time the cause of action arises governs the action. See Cenatus v. Naples Community Hospital, Inc., 689 So.2d 302 (Fla. 2d DCA 1997); L. Ross Inc. v. R.W. Roberts Construction Co., Inc. 466 So.2d 1096 (Fla. 5th DCA 1985).

      . It is proper for a court to consider a subsequent amendment as clarifying legislative intent. See Finley v. Scott, 707 So.2d 1112, 1116-1117 (Fla.1998); Parole Comm’n v. Cooper, 701 So.2d 543 (Fla.1997); Greenberg v. Cardiology Surgical Ass’n, 855 So.2d 234, 237, n. 1 (Fla. 1st DCA 2003), and authorities cited therein.


source: Caselaw Access Project

author: SHARP, W, J.

license: Public Domain

text:
    Richard Robert KOCH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-55.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.

      James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W, J.

Koch appeals his sentence of 20 years in prison, imposed pursuant to section 775.087(2)(a)2., after a jury found him guilty of aggravated battery. Section 775.087(2)(a)2 provides that if a defendant is convicted of having committed any one of a list of violent felonies (including aggravated battery), and regardless of whether the use of a weapon is an element of the felony, if:

[Djuring the course of the commission of the felony such person discharged a ‘firearm’ or ‘destructive device,’... that the defendant shall be sentenced to a minimum prison term of 20 years, (emphasis supplied)

Koch argues that the trial court improperly enhanced his sentence under this statute because neither the information nor the jury verdict form expressly states he “discharged” a firearm. We agree and remand for resentencing.

The evidence at trial established that Koch was the leader of a group of young men and girls, who set out to get into a fight with another group of young people at night, on an unlit, dirt road, near Oak Hill, in Volusia County. The scene was reminiscent of the OK Corral, with the two groups approaching each other, walking from opposite directions down the road, shouting insults and throwing bottles. Koch returned to a car where a shotgun had been positioned on the roof of the vehicle. He loaded the gun and fired two shots; one into the air, and one into the approaching group. The second shot hit the victim in the leg. The victim was one of the young men in the opposing group and the shot caused a minor injury. While seeking treatment at a hospital, the victim found a shotgun pellet near the exit wound, in his sock.

Koch was charged by an information which simply alleged he had committed aggravated battery (deadly weapon) by “actually and intentionally” touching and striking the victim against his will and in doing so “used a firearm.” Later the information was amended to add a reference to section 775.087(2), but no additional language was added.

The jury returned a verdict which simply said Koch was “guilty of aggravated battery as charged in the information.”

It is obvious from the facts in this case that the jury must have found Koch committed the battery by discharging the shotgun, since he and his victim were far apart. The only way Koch could have “touched” the victim, was by firing a projectile in his direction. Koch could not have hit or touched the victim with his hand or the shotgun. The common sense approach here would be to say, given the evidence at the trial, the jury implicitly found Koch “discharged” the weapon in committing the aggravated battery, thereby meriting imposition of the 20 year sentence.

However, precedent appears to require that the jury must expressly find the defendant “discharged” the firearm. In McClenithan v. State, 855 So.2d 675 (Fla.2d DCA 2003), the court reversed a conviction for aggravated assault because it was not a lesser included offense of attempted murder. In so doing, it said that in order for a minimum mandatory 20 year sentence to be imposed under section 775.087(2)(a)2, the jury must make a specific finding that a firearm was discharged during the aggravated assault. It concluded that the jury’s determination that the defendant was guilty “as charged” in the information was not sufficient, even though the information had alleged the defendant carried and discharged a firearm. See also Muldrow v. State, 842 So.2d 240 (Fla.2d DCA 2003). Cf. Tucker v. State, 726 So.2d 768 (Fla.1999) (mandatory minimum sentence upheld where both the information and the verdict form expressly stated the defendant used a firearm).

In Altieri v. State, 835 So.2d 1181 (Fla. 4th DCA 2002), the court quashed a 20-year sentence imposed pursuant to section 775.087(2)(a)2, because the information alleged the defendant only “used” a deadly weapon — not that he discharged it. In that case, there was a special verdict finding by the jury that the defendant had discharged a firearm. However, the court ruled that the finding did not “cure” the lack of notice problem. Cf. Bryant v. State, 744 So.2d 1225 (Fla. 4th DCA 1999); Gibbs v. State, 623 So.2d 551 (Fla. 4th DCA 1993).

The state argues that because the information in this case was amended to include a reference to section 775.087(2)(a)2, that Koch was “on notice” he faced a 20-year sentence. However, we conclude that more than a reference to the number of the statute is required to properly put a person on notice of this lengthy enhancement statute’s applicability, particularly where the state must also rely on the jurors’ “express finding” of discharge on the same numerical reference.

Because the information did not allege that Koch discharged the firearm, nor did the jury make an express finding that Koch fired the weapon, we must reverse the 20-year sentence and remand for re-sentencing. On remand, we agree with both the state and Koch that because the aggravated battery offense was based on use of a deadly weapon or firearm, this crime cannot be additionally enhanced using section 775.087(2)(a); because the weapon is an essential element of the crime. See Young v. State, 841 So.2d 697 (Fla. 4th DCA 2003); Cargle v. State, 829 So.2d 366 (Fla. 1st DCA 2002).

Sentence VACATED; REMANDED for Resentencing.

GRIFFIN and TORPY, JJ., concur.

      . § 784.045(l)(a)2., Fla. Stat.


author: PER CURIAM.

text:
    Rodolfo HOYOS, P.E., Appellant, v. FLORIDA ENGINEERS MANAGEMENT CORP., Appellee.
    No. 3D03-1370.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Rehearing Denied June 4, 2004.
    Rodolfo Hoyos, in proper person.
    Douglas D. Sunshine (Tallahassee), for appellee.
    Before SCHWARTZ, C.J., and GREEN and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Stueber v. Gallagher, 812 So.2d 454 (Fla. 5th DCA 2002); see also Autoworld of America Corp. v. Department of Highway Safety, 754 So.2d 76, 77 (Fla. 3d DCA 2000)(“Choosing § 120.57(2) hearings in professional license disciplinary proceedings is similar to pleading guilty to the facts alleged in the administrative complaint, because they are not disputed.”).


text:
    Elizabeth ANON, Petitioner, v. FLORIDA DEPT. OF CHILDREN & FAMILY SERVICES, Respondent.
    No. 3D03-3242.
    District Court of Appeal of Florida, Third District.
    March 3, 2004.
    Rehearing Denied June 9, 2004.
    Alan I. Mishael, for appellant.

      Samuel C. Chavers, Assistant General Counsel, for appellee.
    Before SCHWARTZ, C.J., and COPE and SHEPHERD, JJ.
   PER CURIAM.

Elizabeth Anon filed a Petition for Review of Non-Final Agency Action and Alternatively, for a Writ of Prohibition. We treat the petition as an appeal from a final order denying Anon’s request for a formal hearing pursuant to section 120.57, Florida Statutes (2003), and a petition for certiora-ri on the grounds that Anon’s due process rights are being violated. We affirm the final order and deny certiorari.

Anon was employed as an attorney by the Florida Department of Health and Rehabilitative Services, and later by its successor, the Department of Children and Families (“the agency”), from 1989 until October 2, 2003. On October 3, 2003, Anon was terminated in accordance with section 110.604, Florida Statutes (2003). Anon contends that following her termination, the agency began making a series of pubhc statements that accused her of violating court orders and disparaged her professional ability and integrity. By letter dated October 9, 2003, Anon demanded a name-clearing hearing. On November 12, 2003, the agency granted that request and issued an order of assignment to an agency deputy district administrator to act as the agency representative in conducting this proceeding.

On November 14, 2003, Anon filed a petition for formal hearing under § 120.57 of the Administrative Procedure Act. Anon specifically alleged in her petition that by publicly stigmatizing her in connection with her dismissal, the agency deprived her of her constitutionally-protected liberty interest in her reputation. Anon’s petition described the media’s broadcast of the statements against her and alleged that these statements were placed in her personnel file. Also placed in her personnel file were a recommendation that Anon not be considered for re-employment and the statement that she was being dismissed while under investigation or pending discipline. The petition asserted that as a result of the adverse agency action, Anon was unable to secure employment as an attorney.

Counsel for Anon and the agency clerk exchanged correspondence, in which they debated the form the name clearing hearing should take. On December 8, 2003, the hearing officer entered a scheduling order stating in part:

You will be permitted to submit relevant information, orally, or in writing, or both, including witness statements, in the form of affidavits or in person. All witnesses must voluntarily agree to testify or give a written statement without subpoena. This hearing officer has not been authorized to issue witness subpoenas. There will be no discovery obligations from the Department other than public records as requested pursuant to Chapter 119, Florida Statutes.

Anon responded with a motion for referral to the Department of Administrative Hearings for a Chapter 120 hearing or, in the alternative, for compulsory process. That motion was denied. Anon filed a Petition for Review of Non-Final Agency Action and Alternatively, for a Writ of Prohibition. We treat the petition as an appeal from a final order denying Anon’s petition for a Chapter 120 hearing and a petition for certiorari to review the agency’s procedure for a name-clearing hearing. For the following reasons, we affirm the order denying a Chapter 120 hearing and deny the petition for certiorari.

Section 110.604, Florida Statutes (2003), provides:

Employees in the Selected Exempt Service shall serve at the pleasure of the agency head and shall be subject to suspension, dismissal, reduction in pay, demotion, transfer, or other personnel action at the discretion of the agency head. Such persons are exempt from the provisions of[C]hapter 120.

(Emphasis added). It is undisputed that Anon was a selected exempt employee. However, Anon claims that section 110.604 no longer applies to her because she is not currently an employee, nor was she an employee when the agency began making public statements about her termination. Following this line of thinking would lead to the anomalous result that an employee who claims that an agency made derogatory public statements after he or she had been suspended, demoted, transferred, or suffered a reduction in pay would remain exempt from the provisions of Chapter 120, while an employee who had been dismissed would not. Nothing in the language of section 110.604 supports such a distinction. Therefore, the order denying Anon’s motion for referral to the Department of Administrative Hearings for a Chapter 120 hearing is affirmed.

We deny without opinion the petition for certiorari to review the agency’s procedure for a name-clearing hearing. This denial is without prejudice to Anon from- raising this issue on appeal after that process has been completed.

       See Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1038(11th Cir.1989)(the placing of stigmatizing information in a public employee’s file or an internal affairs report that is available for public inspection implicates employee's "liberty interests.”). See also Garcia v. Walder Electronics, Inc., 563 So.2d 723, 725 (Fla. 3d DCA 1990)(ordering that claimant be afforded a name-clearing hearing based upon allegations of unlawful deprivation of "liberty interest”).


text:
    Steve SCOFIELD, as parent and natural guardian of Jessica Ilene Scofield, a minor, and Jessica Ilene Scofield, individually, Appellants, v. Paul SIBLEY, M.D., and All Women’S Health Center of Gainesville, Inc., Appellees.
    No. 1D02-3026.
    District Court of Appeal of Florida, First District.
    March 4, 2004.
    Rehearing Denied June 15, 2004.

      Milton H. Baxley II, Gainesville, for Appellants.
    Samuel H. Lanier, and Charles G. Eich-horn, Jr., of Dore, Lanier, Noey & Fanin, Jacksonville, for Appellees.
   PER CURIAM.

We affirm the trial court’s decision dismissing with prejudice the amended complaint filed in this case. The twelve-count amended complaint alleged claims for negligence and for intentional torts on behalf of the plaintiff Jessica Scofield and her father Steve Scofield. The claims derived from an alleged obligation of the defendants, Dr. Paul Sibley and the All Women’s Health Center of Gainesville, Inc., to notify Mr. Scofield of the intent to perform an abortion on his daughter in September 1997, when she was fourteen years old, and obtain Mr. Scofield’s authorization for such procedure. The complaint also avers the former minor’s right to disavow her consent, upon attaining the age of majority, and then to sue for damages occasioned by the procedure. These claims are completely foreclosed by the Florida Supreme Court’s decision in In re T.W., 551 So.2d 1186 (Fla.1989).

Specifically, in T.W., the supreme court held that section 390.001(4)(a), Florida Statutes (Supp.1988), which required a minor to have parental consent before obtaining an abortion, violated the Florida Constitution. 551 So.2d at 1196. In doing so, the court relied on the privacy provision in article 1, section 23 of the Florida Constitution:

Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

See T.W., 551 So.2d at 1191-92. The court reasoned, “Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy.” Id. at 1192. The court further noted:

The decision whether to obtain an abortion is fraught with specific physical, psychological, and economic implications of a uniquely personal nature for each woman. The Florida Constitution embodies the principle that “[f]ew decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision ... whether to end her pregnancy. A woman’s right to make that choice freely is fundamental.”

Id. at 1193 (citations omitted). The supreme court determined that, “based on the unambiguous language” of Florida’s privacy provision, “this freedom of choice concerning abortion extends to minors.” Id. The court then ruled that the challenged parental consent statute constituted a substantial invasion of the privacy of a pregnant minor. Id. at 1194-95.

Our supreme court purported to recognize the interest of the parents of minor children, but no reader of T.W. can escape the conclusion that the court ultimately decreed that a minor’s right to privacy supersedes parental rights in the context of abortion:

We agree that the state’s interests in protecting minors and ' in preserving family unity are worthy objectives. Unlike the federal Constitution, however, which allows intrusion based on a “significant” state interest, the Florida Constitution requires a “compelling” state interest in all cases where the right to privacy is implicated. We note that Florida does not recognize these two interests as being sufficiently compelling to justify a parental consent requirement where procedures other than abortion are concerned. Section 743.065, Florida Statutes (1987), provides:
743.065 Unwed pregnant minor or minor mother; consent to medical services for minor or minor’s child valid.—
(1) An unwed pregnant minor may consent to the performance of medical or surgical care or services relating to her pregnancy by a hospital or clinic or by a physician licensed under chapter 458 or chapter 459, and such consent is valid and binding as if she had achieved her majority.
(2) An unwed minor mother may consent to the performance of medical or surgical care or services for her child by a hospital or clinic or by a physician licensed under chapter 458 or chapter 459, and such consent is valid and binding as if she had achieved her majority.
(3) Nothing in this act shall affect the provisions of s. 390.001 [the abortion statute].
Under this statute, a minor may consent, without parental approval, to any medical procedure involving her pregnancy or her existing child — no matter how dire the possible consequences— except abortion. Under In re Guardianship of Barry, 445 So.2d 365 (Fla. 2d DCA 1984) (parents permitted to authorize Removal of life support system from infant in permanent coma), this could include authority in certain circumstances to order life support, discontinued for a comatose child. In light of this wide authority that the state grants an unwed minor to make life-or-death decisions concerning herself or an existing child without parental consent, we are unable to discern a special compelling interest on the part of the state under Florida law in protecting the minor only where abortion is concerned. We fail to see the qualitative difference in terms of impact on the well-being of the minor between allowing the life of an existing child to come to an end and terminating a pregnancy, or between undergoing a highly dangerous medical procedure on oneself and undergoing a far less dangerous procedure to end one’s pregnancy. If any qualitative difference exists, it certainly is insufficient in terms of state interest. Although the state does have an interest in protecting minors, “the selective approach employed by the legislature evidences the limited nature of the ... interest being furthered by these provisions.” Ivey v. Bacardi Imports Co., 541 So.2d 1129, 1139 (Fla.1989). We note that the state’s adoption act similarly contains no requirement that a minor obtain parental consent prior to placing a child up for adoption, even though this decision clearly is fraught with intense emotional and societal consequences. See ch. 63, Fla.Stat. (1987).

Id. at 1195 (citation and footnote omitted)(emphasis added).

The supreme court recently reaffirmed the T.W. decision. See N. Fla. Women’s Health & Counseling Servs., Inc. v. State of Fla., 866 So.2d 612, 638-41 (Fla.2003). In North Florida, the supreme court found unconstitutional the Parental Notice of Abortion Act. See id. at 638-41. In so doing, the court quoted extensively from the T.W. opinion and the trial court’s decision holding the statute unconstitutional. See id. The court stated, similar to its statements in T.W., “[F]ew decisions are more private and properly protected from government intrusion than a woman’s decision whether to continue her pregnancy, and yet the Act’s notification requirement prohibits a pregnant minor from keeping this matter private.” Id. at 632 (footnote omitted). The court also noted that “the extent of reliance on T.W. unquestionably has been great.” Id. at 638. Further,

During the past fourteen years, Floridians have organized their personal and family relationships based on the constitutional right articulated in that decision, and a generation of Florida women has matured during that period and has had an opportunity to participate equally in the social and economic life of this State due in part to the ability to make personal decisions based on T.W.

Id. at 638. See also N. Fla., 640 (Anstead, J., specially concurring) (explaining that T.W. “concludes that women, including unwed minors, are vested with the right, under Florida’s express constitutional right to privacy, to determine by themselves, and as a private matter, whether to terminate a pregnancy” and “[t]hat is the prevailing law”); Jones v. State, 619 So.2d 418, 420 (Fla. 5th DCA 1993) (explaining that “[t]he supreme court has ruled that a minor (of any age if such minor can become pregnant) has the constitutional right to an abortion without the parents knowledge or consent”), aff'd, 640 So.2d 1084 (Fla.1994).

AFFIRMED.

KAHN, WEBSTER and VAN NORTWICK, JJ„ CONCUR.


text:
    Gregory B. MASSEY, Petitioner, v. James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Respondent.
    No. 3D03-3367.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    Rehearing and Rehearing En Banc Denied June 9, 2004.
    Gregory B. Massey, in proper person.
    Judy Bone, Tallahassee, for respondent.
    Before LEVY, GERSTEN, and WELLS, JJ.
   PER CURIAM.

The defendant’s petition for writ of ha-beas corpus claiming improper calculation of gain time is denied. See § 944.275(4)(b)3, Fla. Stat. (1995)(enacted by chapter 95-294, § 2, Laws of Florida and providing that “[f]or sentences imposed for offenses committed on or after October 1,1995, the department may grant up to 10 days per month of incentive gain-time . Comer v. Moore, 817 So.2d 784 (Fla.2002)(concluding that even though chapter 95-184, Laws of Florida — which included some gain time provisions — was unconstitutional, chapter 95-294, Laws of Florida — which provided for reduced gain time for all offenders — is constitutional).


author: VILLANTI, Judge.

text:
    Rubie H. ROBBINS, Trustee of the Rubie H. Robbins Trust dated June 29, 1990, Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 2D03-1375.
    District Court of Appeal of Florida, Second District.
    March 24, 2004.
    Rehearing Denied May 18, 2004.
    Lauriane Ciccarelli of Moran & Tileston, P.A., Tampa, for Appellant.
    Pamela S. Leslie, General Counsel, and Gregory G. Costas, Assistant General Counsel, Tallahassee, for Appellee.
   VILLANTI, Judge.

In this eminent domain proceeding, Ru-bie Robbins, as Trustee of the Rubie H. Robbins Trust dated June 29, 1990, appeals from the trial court’s order denying her motion for attorney’s fees incurred during posttrial proceedings to recover the cost of her experts pursuant to section 73.091(1), Florida Statutes (2001). For the reasons expressed in our recent opinion in Enterprising Professional Investment Corp. v. Department of Transportation, No. 2D02-5665, — So.2d -, 2004 WL 401573 (Fla. 2d DCA Mar.5, 2004), we reverse the denial of her motion for attorney’s fees and remand for further proceedings consistent with our opinion in Enterprising Professional Investment Corp.

Reversed and remanded.

FULMER and SILBERMAN, JJ., Concur.


author: GEIGER, DWIGHT L., Associate Judge.

text:
    ELITE PROTECTION SERVICES, INC., and Lois Hamil, Appellants, v. FLORIDA WORKERS’ COMPENSATION INSURANCE GUARANTY ASSOCIATION, INC., Appellee.
    Nos. 4D02-3469, 4D02-3770, 4D02-3841.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Rehearing Denied June 24, 2004.

      Andrew K. Fein of Bloch, Minerley & Fein, P.L., Boca' Raton, for appellants Elite Protection Services, Inc., and Lois Hamil.
    F. Gregory Barnhart of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, for appellant Paul Bent.
    Leonel Plasencia, West Palm Beach, for appellant William Smith.
    Richard J. Lydecker, Deborah A. Lee, Peter Hoogerwoerd, and Danielle French of Lydecker & Associates, P.A., Miami, for appellee.
   GEIGER, DWIGHT L., Associate Judge.

This is an appeal from a final declaratory judgment of the Fifteenth Judicial Circuit which was entered after the court granted a motion for summary judgment in favor of Appellee, Florida Workers Compensation Guaranty Association, Inc. (FWCIGA). Appellants contend that the trial court erred in concluding as a matter of law that FWCIGA had no duty to either defend a tort action or indemnify Appellant Elite Protection Services, Inc. or its employees in a tort action. The parties agreed that there are no disputed issues of fact and that the trial court had only to decide the FWCIGA’s statutory obligations under an employer’s liability policy and whether FWCIGA had a duty to defend under the terms of that liability policy. For the reasons below, the judgment of the trial court is affirmed.

Elite had been insured by Associated Business & Commercial Insurance Corporation (ABC) in a policy which provided both workers’ compensation coverage and employer’s liability insurance. ABC paid Appellants Paul Bent and William Smith full workers’ compensation benefits, including medical care and lost wages payments for injuries sustained during the course of their employment with Elite. ABC was thereafter declared insolvent. Pursuant to section 631.902, Florida Statutes (1997), FWCIGA assumed covered claims for the workers’ compensation obligations of ABC, but refused to defend or indemnify the policy holder Elite in a personal injury action filed against Elite by Bent and Smith. The instant lawsuit for declaratory judgment was filed to determine whether there was a duty by FWCI-GA to defend or indemnify Elite in a personal injury action.

The trial court was eminently correct in deciding that FWCIGA’s duty is limited to assuming the workers’ compensation obligations of insolvent insurance carriers even in a situation such as this one where the contract for insurance also includes coverage for tort claims. Section 631.902, Florida Statutes, provides that the purposes of FWCIGA are to “provide a mechanism for the payment of covered claims under Chapter 440 ... and provide for the prompt payment ... of workers’ compensation claims incurred by insolvent insurers.” Chapter 440 exclusively regulates workers’ compensation claims.

One portion of the order granting the summary judgment requires our additional comment. In paragraph 22 of the July 29, 2002 order granting summary judgment, the trial court stated:

The FWCIGA contends that it is not statutorily authorized to provide for the payment of non-workers’ compensation claims, such as in the case at bar, an employer’s liability policy. It stands to note at the outset, that under Florida’s statutory scheme of protecting the claimant’s of insolvent insurance companies, there exist only two statutory entities, the FWCIGA and the FIGA (Florida’s Insurance Guaranty Association). Thus, our search for the proper entity that provides coverage to the employer’s liability policy in the case at bar is at the outset limited to two choices — the FWCIGA or the FIGA.

We note this because Florida Insurance Guaranty Association was not a party to the instant suit for declaratory judgment and this opinion specifically does not adjudicate any potential obligations of FIGA.

AFFIRMED.

STEVENSON and SHAHOOD, JJ., concur.


author: SAWAYA, C.J.

text:
    Jonathan SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2659.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.
    Rehearing Denied June 15, 2004.

      Francis V. Iennaco of LeBlane & Ienna-co, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, C.J.

Jonathan Santiago appeals his conviction for the offense of third-degree murder. Santiago contends that the trial court erred in denying his motion for a new trial because the evidence was insufficient to support a conviction for that offense. We will first discuss the factual background of the instant case, explain why the evidence presented was insufficient to prove the crime of third-degree murder, and determine whether a new trial is the appropriate relief for Santiago.

Factual Background

The trial began with the State setting the background of the murder of the victim, Paul Johnson, a heroin user who used stolen property to purchase his drugs from a man named Johnny Polanco. The night of the murder, Paul’s girlfriend was spending the evening with Paul. The girlfriend testified that a knock on the door prompted Paul to ask who was there, look through the peep hole, and eventually open the door and step out. After conversing with a person or persons for several minutes, Paul reentered the apartment, retrieved a cordless phone and went back out the door. Within a second or two, the girlfriend heard a gunshot and heard Paul exclaim that he had been shot.

Unfortunately, because the girlfriend did not know who shot Paul, the State presented as its key witness Polanco, who had been given immunity in exchange for his testimony. The truth according to Po-lanco was that on the night of the murder, he, Santiago, and two other men discussed the possibility of robbing Paul. After providing them with two guns, Polanco escorted the three men to the apartment complex where Paul lived. Because he was scared, Polanco lagged behind as his minions made their way to Paul’s apartment. Polanco heard a shot and ran back to the car where the others joined him.

Polanco further testified that once he and the others were reunited in the car, one of the men exclaimed that Santiago had shot Paul, whereupon Santiago told him to “shut up.” The guns were discarded in a lake, and one of them was subsequently recovered where Polanco told the police to look. Polanco also testified that after he agreed to cooperate, the police wired him and sent him to confront Santiago. This attempt at obtaining evidence of Santiago’s guilt was unsuccessful, however, because Santiago denied shooting Paul.

Santiago’s testimony at trial differed from Polanco’s. According to Santiago, he was at Polanco’s apartment the night of the shooting, but he denied that he and the others planned to commit a robbery. Instead, he testified, their purpose in driving to the apartment complex where Paul lived was to buy marijuana from someone Po-lanco knew who lived there. That someone, however, was not Paul. While he was at the complex, Polanco decided to check on a customer who owed him money. That customer turned out to be Paul. Santiago also explained that he did not know Paul. All four men went to Paul’s apartment, but Paul would not let them inside. Polanco was talking to Paul at the doorway when Santiago heard a gunshot. The men then ran to the car.

Santiago was arrested and charged with first-degree murder and attempted robbery with a firearm. The jury returned its verdict finding Santiago not guilty of those offenses and not guilty of the following lesser included offenses: second-degree murder with a firearm; second-degree murder; manslaughter with a firearm; manslaughter; and third-degree murder with a firearm. However, the jury did find Santiago guilty of third-degree felony murder, but specifically found that he did not actually possess a firearm during the commission of the crime. We will determine whether the conviction for third-degree murder should be reversed based on insufficiency of the evidence, as Santiago argues in his motion for a new trial.

The Evidence Was Insufficient To Prove Third-Degree Murder

Third-degree murder is “[t]he unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any” enumerated felony in section 782.04(4)(a)-(r), Florida Statutes. § 782.04(4), Fla. Stat. (2002); Tillman v. State, 842 So.2d 922, 926 (Fla. 2d DCA 2008) (“Third-degree murder is an unlawful killing that occurs during the perpetration of, or the attempt to perpetrate, a felony other than those felonies listed in section 782.04(4), Florida Statutes (1997).”); State v. Williams, 776 So.2d 1066 (Fla. 4th DCA 2001); Sims v. State, 712 So.2d 786, 786 (Fla. 2d DCA 1998) (“Third-degree murder is the unpremeditated, unla'virful killing of another by a person engaged in the commission of a felony other than certain specifically enumerated felonies.”). Section 782.04 is referred to as the felony murder statute, see Williams, and third-degree murder under the statute is often referred to as third-degree felony murder. See Pope v. State, 679 So.2d 710, 715 n. 6 (Fla.1996), cert. denied, 519 U.S. 1123, 117 S.Ct. 975, 136 L.Ed.2d 858 (1997); Baker v. State, 793 So.2d 69 (Fla. 4th DCA 2001); Williams.

The primary purpose of the felony murder statute is to protect the public from the dangers associated with the commission of felony offenses. Parker v. State, 641 So.2d 369 (Fla.1994), cert. denied, 513 U.S. 1131, 115 S.Ct. 944, 130 L.Ed.2d 888 (1995). This purpose is accomplished by imposing appropriate punishment on those who commit felony offenses that cause the death of another, thus deterring the commission of serious crimes in the future. We note, parenthetically, the suggestion that has been made that placing too much emphasis on the deterrent aspect may present an overly generous view of the ability or willingness of felons to actually engage in deliberative thought, to any meaningful degree, regarding the consequences of their actions. Williams. The punitive aspect of the statute is found in the provision that a person may be held responsible for the death of another even though he did not form the intent to kill if he was “engaged in the perpetration of ... any felony....” § 782.04(4), Fla. Stat. (2002).

The courts have interpreted this statutory provision in light of the purpose of the felony murder statute to protect society by imposing just punishment and, perhaps to some degree, deter future crime by requiring that there be a causal connection between the felony that was committed and the killing of the victim. House v. State, 831 So.2d 1230 (Fla. 2d DCA 2002); Allen v. State, 690 So.2d 1332, 1334 (Fla. 2d DCA 1997). As the court explained in Allen, “In any felony murder conviction the element of causation, i.e., that the homicide was committed in the perpetration of the felony, must be established.” 690 So.2d at 1334 (citing Mahaun v. State, 377 So.2d 1158 (Fla.1979)). “Stated another way, the State must prove that there was no break in the chain of circumstances beginning with the felony and ending with the murder.” House, 831 So.2d at 1232 (citing Parker). If there is a break in the chain of events between the felony and the killing, the felony murder rule does not apply. See House; Lester v. State, 737 So.2d 1149, 1151 (Fla. 2d DCA 1999); Allen.

Santiago contends that the verdict rendered by the jury clearly shows that the jury rejected Polanco’s testimony and accepted Santiago’s testimony that the men were buying cannabis from a third party. Santiago argues that he could not be guilty of third-degree murder because the State failed to present sufficient evidence to establish a causal connection between the intent to purchase cannabis and the shooting of Paul. The State contends that Polan-co’s testimony that he was a cannabis customer of Paul supplied the nexus between the attempt to purchase the cannabis and the murder.

We believe that the State has taken an inaccurate view of the testimony. Polan-co’s original story to the police; or one of the original stories, was that he went to Paul’s apartment with the other men to buy cannabis from Paul. But Polanco admitted that this was a lie after he made his deal for immunity with the police and after he became aware of the self-serving importance to tell the truth. Moreover, the jury specifically found that Santiago had not carried a firearm during the crime and also found him not guilty of the robbery charge. Santiago argues that this left the jury with his testimony, which failed to establish a causal connection between the intent to purchase cannabis from an unnamed third party and Paul’s murder.

The record clearly shows that the State failed to present any evidence of an actual drug purchase or of an attempted drug purchase. At most, the State presented evidence of an intent to purchase cannabis, but there must be more. In addition to the specific intent to commit a crime, the State must also show that the defendant committed some actual overt act toward actually committing the crime that was more than mere preparation. State v. Duke, 709 So.2d 580 (Fla. 5th DCA 1998); Morehead v. State, 556 So.2d 523 (Fla. 5th DCA 1990). “The overt act must reach far enough toward accomplishing the desired result to amount to commencement of the consummation of the crime.” Morehead, 556 So.2d at 525 (footnote omitted) (citing State v. Coker, 452 So.2d 1135 (Fla. 2d DCA 1984)).

In Duke, for example, the defendant met a person who he thought was a twelve-year-old girl in a chat room on the Internet when, in reality, the defendant was communicating with a law enforcement officer. The officer eventually set up a meeting with the defendant so they could get together and engage in sex. As arranged, the defendant drove to the designated spot and flashed his lights as a signal to the girl. Upon flashing his lights, the defendant was arrested and charged with attempted sexual battery. This court held that the defendant’s conduct, the planning of the act and proceeding to the designated location, was not sufficient to reach the level of an overt act leading to the commission of sexual battery. Therefore, this court reversed the defendant’s conviction.

Santiago argues that in the instant case, his acts did not extend as far as those in Duke because, although he went to the apartment complex where he intended to buy drugs, he did not arrive at the exact apartment where the purchase was to occur. We agree and conclude that Santiago’s conviction must be reversed. Now we must proceed to determine the appropriate remedy. Santiago’s motion requests a new trial with directions that a judgment of acquittal subsequently be entered on the ground that the evidence was insufficient to prove the crime for which he was convicted. Although we agree with Santiago that the evidence was insufficient to support a conviction for third-degree murder, we must determine whether that is a proper ground for a motion for new trial in light of our concern that a retrial may violate double jeopardy principles.

Insufficiency Of The Evidence Is Not A Proper Ground For A Motion For New Trial

Historically, the courts of this state held that a motion for new trial was a necessary prerequisite to review on appeal the sufficiency of the evidence to support a conviction. See State v. Owens, 233 So.2d 389 (Fla.1970) (holding that a motion for new trial based on alleged insufficiency of the evidence must be filed as a prerequisite to review of the sufficiency of evidence on appeal in criminal cases); see also State v. Wright, 224 So.2d 300 (Fla.1969). Essentially these cases recognized that this issue was typically brought to the trial court’s attention via a motion for directed verdict. In order to preserve that issue for appellate review, these cases held that it must be raised in a motion for new trial. In Mancini v. State, 273 So.2d 371, 373 (Fla.1973), the court receded in part from Owens and Wright when it held that the issue need not be raised in a motion for new trial if it was first raised in a motion for directed verdict in the trial proceedings. Hence, it was no longer necessary to preserve the issue of the sufficiency of the evidence via motion for new trial as long as it was properly raised in a motion for directed verdict. Subsequently, in Nogar v. State, 277 So.2d 257 (Fla.1973), the court further explained that the issue could be raised in either a motion for directed verdict or motion for new trial. Based on this historical view, Florida courts have held that when the issue on a motion for new trial is sufficiency of the evidence, a trial judge abuses his or her discretion in granting a new trial if the state presented sufficient evidence to support the conviction. See State v. Coles, 91 So.2d 200 (Fla.1956); State v. McMahon, 485 So.2d 884 (Fla. 2d DCA), review denied, 492 So.2d 1333 (Fla.1986); Gonzalez v. State, 449 So.2d 882 (Fla. 3d DCA), pet. for review denied, 458 So.2d 274 (Fla.1984); State v. Haliburton, 385 So.2d 11 (Fla. 4th DCA 1980).

Decisions of more recent vintage indicate that an appropriate ground for a motion for a new trial in a criminal case is the sufficiency of the evidence. Some of these decisions seem to rely on the historical role that a motion for new trial played in preserving the issue of the sufficiency of the evidence for appellate review. Other decisions rely on Florida Rule of Criminal Procedure 3.600(a)(2), which provides that a new trial may be granted if “[t]he verdict is contrary to law or the weight of the evidence.” For example, in Thomas v. State, 574 So.2d 160 (Fla. 4th DCA 1990), the court indicated that the provision in the rule that a new trial may be granted if the “verdict is contrary to law” means that the insufficiency of the evidence is a proper basis for that relief.

This court and others have recognized clear distinctions between the “sufficiency of the evidence” and the “weight of the evidence” standards. Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); McArthur v. Nourse, 369 So.2d 578 (Fla.1979); State v. Brockman, 827 So.2d 299 (Fla. 1st DCA 2002); Geibel v. State, 817 So.2d 1042 (Fla. 2d DCA 2002); Moore v. State, 800 So.2d 747 (Fla. 5th DCA 2001); see also Guebara v. State, 856 So.2d 1087 (Fla. 5th DCA 2003). The “sufficiency of the evidence” standard determines whether the evidence presented is legally adequate to permit a verdict and is typically utilized to decide a motion for directed verdict. “In the criminal law, a finding that the evidence is legally insufficient means that the prosecution has failed to prove the defendant’s guilt beyond a reasonable doubt.” Tibbs, 397 So.2d at 1123. Sufficiency of the evidence is generally an issue of law that should be decided pursuant to the de novo standard of review. See Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001); State v. Hawkins, 790 So.2d 492 (Fla. 5th DCA 2001). The “weight of the evidence” standard determines whether a greater amount of credible evidence supports one side of an issue or the other. State v. Hart, 632 So.2d 134, 135 (Fla. 4th DCA 1994). The standard of review that applies to this issue is abuse of discretion. See Stephens v. State, 787 So.2d 747, 754 (Fla.) (“A trial court’s denial of a motion for a new trial is reviewed under an abuse of discretion standard.”), cert. denied, 534 U.S. 1025, 122 S.Ct. 556, 151 L.Ed.2d 431 (2001).

Prior to the United States Supreme Court’s decision in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), insufficiency of the evidence may have been a proper ground for a motion for new trial in a criminal case and this may have been a logical interpretation of rule 3.600(a)(2). However, in Burks, the Court held that if it is determined either by the trial court or appellate court that the evidence is insufficient to sustain a conviction, the proper remedy is acquittal and not a new trial. The Florida courts have applied Burks to grant acquittals in cases where a finding was made that the evidence was insufficient to support a conviction. Indeed, in Tibbs, the Florida Supreme Court noted the distinction between the “sufficiency of the evidence” and the “weight of the evidence” standards in the criminal rules of procedure;

At the trial level, the weight-sufficiency distinction is apparent in our Rules of Criminal Procedure. We noted in McArthur v. Nourse, 369 So.2d 578 (Fla.1979) that:
[a] critical distinction has existed at least since 1967, when rules 3.380 (formerly 3.660) and 3.600 of the Florida Rules of Criminal Procedure were adopted. Rule 3.380(a) provides that a motion for judgment of acquittal should be granted if, at the close of the evidence, “the court is of the opinion that the evidence is insufficient to warrant a conviction.” In contrast, rule 3.600(a)(2) provides that a motion for new trial shall be granted if the jury verdict is “contrary to law or the weight of the evidence.”
Id. at 580 (footnote omitted) (emphases added). Rule 3.600(a)(2) thus enables the trial judge 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.

397 So.2d at 1123 n. 9 (citation omitted).

In light of the clear distinctions between the “sufficiency of the evidence” and the “weight of the evidence” standards, and based on the decision in Burks and the decisions of the Florida courts that have properly applied the holding of that case, we conclude that “sufficiency of the evidence” is not a proper ground for a motion for new trial in a criminal case. The issue of the sufficiency of the evidence should be raised in the context of a motion for a directed verdict, not a motion for new trial. In order to obtain effective appellate review of orders granting or denying motions for new trial and for directed verdict, litigants should be careful in framing the issues presented to this court for resolution and be especially careful to request the relief to which they are actually entitled.

Here, Santiago has raised the issue that the trial court erred in denying his motion for a new trial based on the insufficiency of the evidence. In essence, Santiago is asking for a new trial, which is an inappropriate remedy given our conclusion that the evidence is indeed insufficient to sustain Santiago’s conviction in the instant case. We note, however, that even though Santiago raised the wrong issue, he did appeal his judgment and sentence and the State did argue the sufficiency of the evidence in its brief without raising any argument regarding Santiago’s request for an inappropriate remedy. Based on the record before us, we believe that the State has had a fair and adequate opportunity to argue the sufficiency of the evidence in these proceedings. Hence, we revert to the tried and true rules of appellate procedure, which allow us in situations like this to grant the relief that is just and proper. See Fla. R.App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought....”); Fla. R.App. P. 9.140(i) (“In the interest of justice, the court may grant any relief to which any party is entitled.”).

Conclusion

We conclude that the evidence is insufficient to support Santiago’s conviction. Therefore, Santiago is entitled to discharge, and we grant him that relief. Accordingly, Santiago’s conviction and sentence are reversed, and this matter is remanded to the trial court with instructions to discharge Santiago.

REVERSED and REMANDED with instructions.

PALMER and TORPY, JJ., concur.

      . Polanco admitted that he had told several stories to the police, one of which was that he and his associates were going to Paul's house to purchase marijuana. But once Polanco made his deal with the State for immunity, he had to be honest so he admitted on the stand that this particular story was not the truth.

      . In Mahaun, the court explained third-degree felony murder as follows:
      Third-degree murder, as set forth in section 782.04(4), Florida Statutes (1977), is defined as an unlawful killing committed by a person engaged in the perpetration of any felony other than those identified as the underlying felony in second-degree murder when there is no premeditated design to effect the death of the victim. There -is no alternative means to find a person guilty of third-degree murder other than by establishing that there was an appropriate underlying' felony and that a homicide occurred in its perpetration.
      377 So.2d at 1160.

      . See State v. Andrews, 820 So.2d 1016, 1021 (Fla. 4th DCA 2002) (" 'In reviewing a motion for a new trial, the trial court must consider both the weight and sufficiency of the evidence.' ”) (quoting State v. Hart, 632 So.2d 134 (Fla. 4th DCA 1994)); State v. May, 703 So.2d 1097, 1098 (Fla. 2d DCA 1997) ("A new trial motion is made pursuant to rule 3.600 and may be based on two grounds: (i) the legal sufficiency of the evidence or (ii) the weight of the evidence. Fla. R.Crim. P. 3.600(a)(2).''); Thomas v. State, 574 So.2d 160, 160 (Fla. 4th DCA 1990) (“Accordingly, we relinquish jurisdiction to the trial court for a period of forty five (45) days with instructions to reconsider the motion for new trial on the basis of both the weight and sufficiency of the evidence.”) (citing Uprevert v. State, 507 So.2d 162 (Fla. 3d DCA 1987); Jordan v. State, 470 So.2d 801 (Fla. 4th DCA 1985)). In Hart, for example, the court stated:
      In reviewing a motion for a new trial, the trial court must consider both the weight and sufficiency of evidence. Thomas v. State, 574 So.2d 160 (Fla. 4th DCA 1990) (On appeal after the relinquishment of jurisdiction to the trial court, this court affirmed the trial court's order denying defendant’s motion for new trial. Thomas v. State, 574 So.2d 259 (Fla. 4th DCA 1991).); Jordan v. State, 470 So.2d 801 (Fla. 4th DCA 1985); Uprevert, 507 So.2d at 163. “Sufficiency of evidence” is a test of whether the evidence presented is legally adequate to justify the verdict. Tibbs, 397 So.2d at 1123.
      632 So.2d at 135 (footnote omitted).

      . As explained in Geibel:

      In deciding a motion for new trial pursuant to Florida Rule of Criminal Procedure 3.600(b) [sic] on the ground that the verdict is contrary to the weight of the evidence, the trial court acts as a “safety valve” by granting a new trial 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. Moore, 800 So.2d at 749. Thus, this rule "enables the trial judge to weigh the evidence and to determine the credibility of witnesses so as to act, in effect, as an additional juror.” Uprevert v. State, 507 So.2d 162, 163 (Fla. 3d DCA 1987) (quoting Tibbs v. State, 397 So.2d 1120, 1123 n. 9 (Fla.1981)).
      817 So.2d at 1044 (footnote omitted).

      . In Interest of A.P., 636 So.2d 790 (Fla. 4th DCA 1994); Webster v. State, 549 So.2d 784, 784-85 (Fla. 4th DCA 1989) ("[I]nasmuch as this court reversed appellant's conviction of second-degree felony murder of the driver of the getaway car, Lawrence Hargrett, because of an insufficiency of the evidence, appellant cannot be re-tried upon the same charge of second-degree felony murder because of double jeopardy considerations.”) (citations omitted); see also Smith v. State, 379 So.2d 996 (Fla. 5th DCA), cert. denied, 386 So.2d 642 (Fla.1980). In A.P., for example, the defendant filed a motion for new trial and a motion for arrest of judgment. The trial court denied the motion for arrest of judgment but granted the motion for new trial finding that there was insufficient evidence and the state failed to prove the offense. On appeal, the appellate court granted a writ of prohibition because a new trial would violate the defendant's double jeopardy rights. The court held that the correct ruling would be to discharge the defendant. The court, referring to its decision in Coyle v. State, 493 So.2d 550 (Fla. 4th DCA 1986), wrote;
      This court went on to state that the Double Jeopardy Clause of the United States Constitution compelled a remand to the trial court with instructions to discharge the appellant because the state had failed to present sufficient evidence at trial that the vehicle found in appellant's possession was the vehicle taken from the victim of the theft. Id. at 551, citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Kimbler v. State, 360 So.2d 1270 (Fla. 1st DCA 1978).
      636 So.2d at 790-91.


author: PER CURIAM. COPE, J.

text:
    Ricardo Alfredo VAZQUEZ, Appellant, v. CITY OF HIALEAH GARDENS, Appellee.
    No. 3D02-2117.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.
    Rehearing Denied June 9, 2004.
    Arthur Joel Berger, Miami, for appellant.
    Carlton Fields, and Sylvia H. Walbolt, St. Petersburg, James R. Wiley, Tampa, and Cristina Alonso, Miami, for appellee.
    Before COPE, LEVY, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Webb v. Florida Health Care Mgmt. Corp., 804 So.2d 422, 424 (Fla. 4th DCA 2001) (explaining that “[i]n order to prevail on a constructive discharge claim, an employee must show, under an objective standard, that the employer made working conditions so difficult that a reasonable person would feel compelled to resign.”).

LEVY and RAMIREZ, JJ., concur.

COPE, J.

(concurring).

For summary judgment purposes I accept the proposition that the changes in the plaintiff-appellant’s hours and working conditions, and other limitations imposed by the then-mayor, made working conditions so difficult that a reasonable person would resign. The plaintiffs testimony, however, was that the then-mayor wanted to force the plaintiff out of his position so she could give it to her then-boyfriend. This negates the claim under 42 U.S.C. Section 1983 that these actions were undertaken on account of discrimination on the basis of national origin.


author: STONE, J.

text:
    B. Martin ATKINS, in his derivative capacity as a shareholder on behalf of Topp Comm, Inc., a Florida Corporation, Appellant, v. TOPP COMM, INC., Topp Telecom, Inc. n/k/a Tracfone Wireless, Inc., Greenberg Traurig, P.A., David Topp, and Rebecca Orand, Appellees.
    No. 4D03-1489.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Rehearing Denied June 22, 2004.

      J. Ken Johnson and Andres C. Pereira of Fleming & Associates, LLP, Houston, Texas; Mike O’Brien of Mike O’Brien, P.C., Houston, Texas; Donald J. Hayden and Jonas C. Packer of Baker & McKenzie, Miami, and E. Cole Fitzgerald, III and Gregory D. Cook of Fitzgerald, Hawkins, Mayans & Cook, P.A., West Palm Beach, for appellant.
    David P. Ackerman and Carla L. Brown Harward of Ackerman, Link & Sartory, P.A., West Palm Beach, for Appellee-Topp Comm, Inc.
    L. Louis Mrachek, Alan B. Rose, and Jennilynn E. Lawrence of Page, Mrachek, Fitzgerald & Rose, P.A., West Palm Beach, for Appellees-Greenberg Traurig, P.A. and Rebecca Orand.
    Alan D. Lash and Lorelei J. Van Wey of Lash & Goldberg LLP, Miami, for Appel-lee-David Topp.
   STONE, J.

Martin Atkins brought this shareholder’s derivative suit on behalf of Topp Comm, Inc. against Appellees, Topp, Greenberg Traurig, and Orand, in addition to others. We affirm an order finding that it was not in Topp Comm’s best interest to pursue the claim and dismissing the action as to the three Appellees.

The dismissal is based on the trial court’s conclusion that the independent investigator, a retired circuit court judge agreed to by the parties, acted reasonably and with good faith in conducting his investigation. The independent investigator examined the merits of the proposed claims and concluded that this derivative suit was not in Topp Comm’s best interest. The record reflects that the independent investigator conducted numerous witness interviews, reviewed relevant documents, sought input from the attorneys for both sides, kept both sides advised as the investigation progressed, obtained the advice of independent experienced counsel, and presented a lengthy report to the court.

One of the issues raised on appeal is whether the trial court was required to engage in a “second-step analysis,” as did the court in Zapata Corp. v. Maldonado, 430 A.2d 779 (Del.1981), and abused its discretion in adopting the independent investigator’s findings. We conclude that trial courts in this state are not required to evaluate the reasonableness of an independent investigator’s final recommendation, pursuant to the second-step analysis in Zapata.

In Zapata, the court held that, when ruling on a motion to dismiss, a court should inquire into the independence and good faith of the special investigative committee, as well as into whether the committee conducted a reasonable analysis in support of its recommendations. Id. at 788. In an effort to balance the interests of a corporation against those of a special investigative committee, the Zapata court further provided the trial courts with the discretion to then “apply its own business judgment” in order to determine whether the committee recommendation was supported by the evidence. Id. at 789.

In DeMoya v. Fernandez, 559 So.2d 644, 645 (Fla. 4th DCA 1990), a case decided prior to the enactment of section 607.07401(3), Florida Statutes, this court recognized the holding in Zapata permitted a special litigation committee to make a recommendation as to whether the derivative suit was in the best interest of a company. We further explained that, pursuant to Zapata, the trial court must determine whether an independent investigative committee acted with independence, good faith, and reasonableness. Id. Because the DeMoya court found that the special investigative committee had not engaged in a reasonable investigation, this court did not address whether Florida law required courts to apply the second-step in Zapata and exercise its own independent business judgment before accepting the final recommendation of the committee. Id. at 645-46; see Klein v. FPL Group, Inc., 2003 WL 22768424 (S.D.Fla. Sept.26, 2003); see also McDonough v. Americom, Int’l Corp., 905 F.Supp. 1016 (M.D.Fla.1995).

Klein is the most recent opinion to discuss whether a trial court must exercise its own business judgment pursuant to Zapata. In Klein, the federal district court recognized that the plain language of section 607.07401(3), Florida Statutes, requires the corporation to prove a special investigative committee’s independence, good faith, and reasonable investigation. Klein, 2003 WL 22768424 at *8. The court declined to make a determinative ruling as to the application of Zapata, instead stating that “even if this Court retains discretion to apply its ‘independent business judgment,’ despite the omission of this step from [section 607.07401(3), Florida Statutes], it should apply that judgment based on the record created with respect to the first step of the determination.” Id.

The plain language of section 607.07401(3), Florida Statutes, does not require Zapata’s second-step analysis. Had the legislature intended to mandate such an analysis by the trial court, it would have likely specified so, particularly after this court expressed reservations about applying Zapata in DeMoya. Further, Zapata does not mandate a second-step finding; it plainly states that “the Court may proceed, in its discretion, to the [second] step.” Zapata, 430 A.2d at 789 (emphasis added). Therefore, even under Zapata, the decision whether to apply the second step is a discretionary one, applicable only in rare circumstances. Circumstances where the second step analysis would be more appropriate are those times when the court is concerned about the independence, neutrality, or good faith of the independent investigator or investigative committee. In this case, however, the investigation was conducted by a retired judge, accepted by both sides, and with no ties to either litigant. Further, here, assuming without deciding that section 607.07401(3), Florida Statutes, required the second-step analysis, the trial court recognized the reasonableness of the independent investigator’s final recommendation.

As to all other issues raised, we also find no reversible error or abuse of discretion.

GROSS and HAZOURI, JJ., concur.

      . Section 607.07401(3) provides:
      The court may dismiss a derivative proceeding if, on motion by the corporation, the court finds that [the independent investigative committee] has made a determination in good faith after conducting a reasonable investigation ... that the maintenance of the derivative suit is not in the best interests of the corporation.


text:
    Clarence E. RHYNES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0740.
    District Court of Appeal of Florida, First District.
    April 13, 2004.
    Rehearing Denied May 21, 2004.
    Clarence E. Rhynes, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

ALLEN, PADOVANO and HAWKES, JJ., concur.


text:
    Aaron COLLINS, Carol Collins and Clifford Collins, Appellants, v. Edward DOUGLASS, as Successor Personal Representative of the Estate of Ian Douglass, Appellee.
    Nos. 4D02-3137, 4D02-3223.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Rehearing Denied June 25, 2004.

      Warren B. Kwavnick and John H. Richards of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., Fort Lauderdale, for appellants.
    Philip M. Burlington of Philip M. Burlington, P.A., and William J. McAfee of McAfee & Russo, P.A., West Palm Beach, for appellee.
   PER CURIAM.

This appeal and cross-appeal raise two significant questions. First, once a trial court denies a motion for new trial, does the court thereafter have the authority to sua sponte rehear the matter? Second, was a new trial warranted in this case on the ground that the future pain and suffering damages award was inadequate? We answer both questions in the negative and direct the trial court to reinstate the jury verdict and its initial order denying the motions for new trial or additur.

This appeal stems from a wrongful death suit where eleven-year-old Ian Douglass died in an automobile accident. The only issue the jury was asked to decide was damages for past and future pain and suffering for Ian’s non-custodial father, Edward Douglass. After the jury returned a verdict of $50,000 for past pain and suffering, and $100,000 for future pain and suffering, the plaintiff filed motions for new trial or, alternatively, additur. Following a hearing, the trial court denied the motions for new trial and additur.

On the next day, the trial judge sua sponte granted rehearing in the matter and, ultimately, held a second hearing. Following this second hearing, the trial court found that the future pain and suffering damages award was inadequate and granted the motion for additur (increasing the future emotional damage award by $250,000), or, in the alternative, a new trial. The defendants rejected the addi-tur.

On appeal, the defendants/appellants’ primary contention is that the trial court lacked authority to sua sponte rehear the matter and to enter the second order granting the motion for additur or, in the alternative, a new trial. This issue is governed by the decision in State Farm Mutual Automobile Insurance Co. v. Miller, 688 So.2d 935 (Fla. 4th DCA 1996). There, as here, the plaintiff believed the jury’s damage award was inadequate and sought a new trial. The trial court denied the motion. On that same day, however, this court issued an opinion contrary to the law applied by the lower court in the case. The plaintiff thus sought rehearing of the order denying her motion for new trial. The court granted the motion and ordered a new trial, prompting the defendant to appeal. This court reversed the second order granting the motion for new trial, finding that the motion was not authorized and that the lower court was without authority to consider the same. Id. at 935.

On motion for rehearing, the plaintiff suggested that this court’s decision was in error as a trial court retains the inherent authority to control its own interlocutory orders and no final judgment had yet been entered in the case. This court refused to find that this general principle of law gave the trial court the authority to rehear an initial order denying a motion for new trial or to vacate that initial order. Id. at 936-37. See also ACA Brandon, Inc. v. Hooy- man, 823 So.2d 874, 875 (Fla. 2d DCA 2002)(holding that “[o]nce the trial court denied the ... original motion for new trial, it had no authority to rehear the matter,” and remanding for entry of final judgment).

Although Miller involved a motion for rehearing and in this case the court sua sponte granted rehearing, the result is the same. A similar issue was addressed in Abram v. Wolicki, 864 So.2d 18 (Fla. 4th DCA 2003). There, we held that since the trial court was without authority to grant a motion for rehearing following an initial denial, the court also could not sua sponte grant such relief. In light of Miller and Abram, we conclude that, here, following the initial denial of the motions for new trial or additur, the trial court was without authority to rehear the matter.

The only question that remains, then, is whether the initial denial of the motion for new trial was an abuse of discretion as is alleged by the cross appellant. “A new trial may be ordered on the grounds that the verdict is excessive or inadequate when (1) the verdict shocks the judicial conscience or (2) the jury has been unduly influenced by passion or prejudice.” Brown v. Estate of Stuckey, 749 So.2d 490, 498 (Fla.1999). Section 768.74, Florida Statutes (2003), vests the trial judge with “discretionary authority” to review the award for inadequacy or excessiveness and lists several factors for consideration. Florida law affords juries wide latitude in the award of future pain and suffering damages, see, e.g., Hendry v. Zelaya, 841 So.2d 572, 575 (Fla. 3d DCA 2003), and the $150,000 award in the instant case, in view of the statutory criteria, is not so inadequate as to suggest that the trial court abused its discretion in denying the motion for new trial or additur.

Accordingly, we direct the trial court to reinstate the jury verdict and its initial order denying the motions for new trial or, in the alternative, additur.

REVERSED and REMANDED.

STEVENSON, SHAHOOD and MAY, JJ., concur.