author: PER CURIAM. ANSTEAD, C.J.,

text:
    Ray Lamar JOHNSTON, Appellant, v. STATE of Florida, Appellee.
    No. SC01-1914.
    Supreme Court of Florida.
    Oct. 16, 2003.

      James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Kimberly Nolen Hopkins, Assistant Attorney General, Tampa, FL, for Appel-lee.
   PER CURIAM.

Ray Lamar Johnston appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the conviction and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

On either February 6 or 7, 1997, Janice Nugent, a forty-seven-year-old divorced woman, was strangled to death in her Tampa home by Ray Lamar Johnston. Nugent’s body was discovered by her son-in law, John McCarthy, at about 11 p.m. on Friday, February 7, 1997. When McCarthy arrived at Nugent’s house, he noticed the side door to the house was ajar and keys were still in the door lock. Nugent’s car was still in the carport. McCarthy entered the house and discovered Nugent’s body, wrapped in a bed comforter and submerged in the bathtub. Nugent was wearing only panties and a brassiere.

The medical examiner, Dr. Julia Martin, testified that the time of Nugent’s death was between 1 a.m. on Thursday, February 6, and 1 a.m. on Friday, February 7. Dr. Martin determined that the cause of death was manual strangulation, and that Nugent was murdered before she was submerged in the bathtub. There was extensive bruising to Nugent’s neck and shoulder area. Dr. Martin concluded that the strangulation in this case was not by constant, continuous compression, but rather was “more of a manual throttling ... meaning it was more pressure, release, pressure, release. There was some fighting activity.” Defensive bruising on Nu-gent’s arms and hands and defensive fingernail injuries on her nose indicated that Nugent struggled with her assailant and attempted to pull the assailant’s hands off her face.

Nugent sustained three to five blunt impact “pattern type injuries” on her buttocks and hips. Dr. Martin testified that within a reasonable medical probability, one or more of the patterned injuries on Nugent’s buttocks were made by a belt. The other pattern type injuries could have been made by a belt or some other implement, possibly a vacuum cleaner hose. The belt that caused the injuries was never recovered.

Kelli McCarthy, Nugent’s daughter, testified that Nugent retained all of her used answering machine tapes and stored them in a bureau drawer in her bedroom. The answering machine tapes and a portable phone with caller ID were not found. There were no signs of forced entry and no signs of a struggle in any room other than the master bedroom. In the master bedroom a lamp on a bedside table had been broken and partially overturned. Nugent’s massage table was open in the living room and jars of cocoa butter and massage oil were found on a nearby piece of furniture. McCarthy testified that Nu-gent was a massage therapist and would bring the table into the living room to give massages. McCarthy described Nugent as a creature of habit and a “neat freak” and testified that Nugent would mop her kitchen floor every week. It would be very uncharacteristic of her to leave a cup unwashed for three or four weeks. She also testified that Nugent habitually bathed twice a day. There was only one bathtub in the house.

The last person to see Nugent alive, other than Johnston, was Ron Pliego. Pliego arrived at Nugent’s house on Wednesday, February 5,1997, around midnight and left at around 1 a.m. on Thursday morning. Pliego did not eat or drink anything while at Nugent’s house and had some form of sexual encounter with Nu-gent. Pliego could not remember whether the massage table was in Nugent’s living room when he left. Pliego was eliminated as a suspect in the Nugent murder after he provided police with his fingerprints and DNA.

Nugent, Johnston, and Frances Aberle, an acquaintance of Nugent who had dated Johnston, were regulars at a bar named “Malio’s.” A short time before the murder, Aberle told Johnston that she would no longer go to Malio’s with him because she was afraid Nugent would retaliate against her for being with Johnston. Several days after the murder, Aberle and Johnston spoke about the murder and Aberle said, “I just can’t understand someone doing that. Why? No matter what somebody did, why somebody would do that.” Ray agreed with her and then said, “Well, now there’s no reason you can’t go to Malio’s with me.”

Johnston’s fingerprints were found on the bottom of a plastic cup under the kitchen table and on the cold water knob of the bathtub, near Nugent’s body. Shoe tracks consistent with shoes recovered from a search of Johnston’s apartment were found on Nugent’s kitchen floor. The State could not prove that the shoe tracks came from the exact shoes owned by Johnston, but did establish that the tracks were consistent with the tracks made by Johnston’s shoes. DNA evidence matching Johnston’s DNA' profile was found on a bed sheet in Nugent’s master bedroom. The odds of another person matching Johnston’s DNA profile are one in 279 trillion. The mixture stain from which the DNA evidence was found was consistent with blood, saliva, or sweat, but it was not consistent with semen. No evidence of sexual battery was introduced at trial.

Detectives Noblitt and Stanton interviewed Johnston three times before the Nugent trial. In the first interview, Johnston told the detectives that he knew Nu-gent, and that he met her at Malio’s. He had danced with her a few times, and they went out on one dinner date several weeks before Valentine’s Day. After the date, they went back to Nugent’s house. Nu-gent took him through her kitchen to a locked room at the rear of the house. Nugent began to act strangely and Johnston left the house. Johnston said he never went out with Janice again; he was in the house for no more than half an hour that night; he and Janice did not have sex; and they did not have a fight. Johnston denied killing Nugent.

The second interview took place six days later. By that time, the detectives had received information that Johnston’s fingerprint was found on the shower knob in Nugent’s bathroom. Detective Noblitt asked Johnston to go back over the events of his dinner date with Nugent, and Johnston reiterated the story he gave in the first interview. Noblitt then said, “Your fingerprint is in a place very near where Ms. Nugent’s body is.” Noblitt did not indicate exactly where the fingerprint was found. Johnston said he was only in Nu-gent’s house once and only went in the rooms he had previously mentioned; then Johnston stopped and said “Wait a minute, I may have gone in the computer room.” Noblitt countered, “That won’t explain the fingerprint,” and told Johnston he did not believe he was telling him the truth. Nob-litt asked Johnston if he knew where the body was found. At first Johnston said no, then he said, “Oh, I think it was found in the bathroom.” Asked how he knew that, Johnston said he had read it in the newspaper. A short time later, Johnston mentioned to the detectives that he has occasional blackouts and seizures. Johnston told the detectives, “Sometimes I get to doing something and doing it and doing it and when it’s over I can’t remember what I’ve done.” Detective Stanton asked Johnston, “Is that what happened with you and Janice?” and Johnston said, “No, I did not kill Janice.”

Detective Noblitt insisted that “[s]ome-thing happened. Your fingerprints are in a place where I know you were there the night she was killed.” Johnston stopped for a second and said, “I went to the bathroom.” Noblitt took that as meaning that he went in to urinate, and he insisted to Johnston that he did not believe him and the fingerprint did not get there that way. Johnston thought about it for a few minutes and then said, “Okay, I’m going to tell you the truth.” He then told the detectives that after he and Nugent returned to her house, they had a conversation about ghosts, which Nugent believed lived in her house. Nugent offered him a massage and Johnston accepted. Johnston took off his clothes and got on the massage table. Nugent heated some massage oil, and when she poured it on him it burned his buttocks and the back of his legs. He jumped up and ran into the shower, washed himself off, and fled Nu-gent’s house in his underwear. Johnston told Noblitt that he was scared and that is why he did not mention these facts during the first interview.

The third interview with Johnston took place on September 2, 1997. By that time, the detectives had received DNA test results indicating that Johnston’s bodily fluid was found on a sheet in Nugent’s master bedroom. The detectives advised Johnston of his constitutional rights, as they had done in the previous interviews, and told him they wanted to talk more about Nugent’s homicide. Noblitt testified:

I told him that we executed our search warrant; told him we had only taken a few things; that most of his property was still there, and had some small talk about who was going to pick up whatever remaining property he had. And Mr. Johnston sat there and looked at myself and Detective Stanton and said, “I think I have a problem.”

Johnston then told the detectives that he had another person named Dwight living inside of him. Johnston said that Dwight was “very mean” and “I got to be cautious.” Noblitt testified that Johnston “sat and put his fists together and clinched his fists real tight with his knuckles almost turning white and leaned back in his chair and kind of closed his eyes ... and he said “You’ve got to see him man.’ ” During the same interview Johnston denied that “Dwight” killed Nugent.

The State filed a motion to rely upon Williams rule evidence of Johnston’s pri- or first-degree murder conviction. After two hearings on the subject, the trial court granted the State’s motion to rely upon Williams rule evidence and issued a ten-page order detailing the analysis the court conducted in reviewing the motion. The State presented evidence that on March 13, 2000, Johnston was convicted of the first-degree murder of Leanne Coryell. Coryell was murdered on August 19, 1997, six months after the Nugent murder. Johnston confessed to the Coryell murder during the penalty phase of the Coryell trial, after the jury had convicted him of the murder.

Coryell was a thirty-year-old, physically fit, blond-haired, attractive woman. She was forcibly abducted from her apartment by Johnston and taken to a nearby park. Her body was found nude and partially submerged in a pond. Coryell’s clothing was scattered on the ground in the vicinity of the pond, and her car was found nearby in a church parking lot. The cause of her death was strangulation, most likely manual strangulation. However, the possibility that a ligature was used could not be ruled out by the medical examiner. Coryell was most likely already dead when her body was dragged and placed into the water. There was evidence of a sexual battery.

Johnston and Coryell resided in different buildings of the same apartment complex. Certain property, including an ATM card, was taken from Coryell, and money was later withdrawn from her bank account using that card. There were pattern injuries on Coryell’s buttocks that were consistent with Coryell having been beaten with a belt. The pattern injuries matched the pattern of Coryell’s belt found at the scene.

During the Nugent trial, the State read into the record parts of Johnston’s confession to the Coryell murder. In this confession, Johnston admitted killing Coryell, but said he did not rape or sexually assault her. Johnston said that after she was already dead he attempted to cover himself by making it appear as if Coryell had been assaulted. In furtherance of this objective, he removed Coryell’s clothes and scattered them, kicked her in the crotch area, struck her with her belt, and dragged her into the pond. Johnston admitted that he knew chlorinated water, and even water itself, would remove trace evidence, and acknowledged that he took steps to cover up what he had done.

During his confession to the Coryell murder, Johnston referred to “Dwight,” the entity which purportedly lived inside him. A psychologist had testified earlier in the Coryell penalty phase that Johnston expressed a fear that another personality within him named “Dwight” had possibly committed the Coryell murder. However, Johnston admitted in his confession that “Dwight” was not responsible for the Cor-yell murder.

The trial court in the Nugent case noted that the Williams rule evidence of the Coryell murder was presented for sixty-two minutes at trial.

On October 6, 2000, the jury found Johnston guilty of the first-degree murder of Janice Nugent. The trial court conducted the penalty phase of Johnston’s trial, during which both the State and Johnston presented evidence. The jury recommended by a seven-to-five vote that Johnston be sentenced to death. Johnston presented a motion for mistrial as to the penalty phase, and the trial court granted this motion. A new penalty phase was conducted.

The jury in the second penalty phase recommended by an eleven-to-one vote that Johnston be sentenced to death. The trial court followed the jury’s recommendation and imposed a death sentence, finding and weighing two aggravating factors, one statutory mitigating factor, and twenty-six nonstatutory mitigating factors. On direct appeal, Johnston raises five issues.

I. IMPLIED ADMISSION

Johnston argues that the trial court abused its discretion and committed harmful error by allowing the State to introduce, as implied admissions, statements made by Johnston during custodial interrogation concerning a person living within him named “Dwight.” Johnston argues that the statements were irrelevant to prove the charged offense and showed only criminal or violent propensity, bad character, and possible lunacy.

A. APPLICABLE LAW

A trial judge’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. See Carpenter v. State, 785 So.2d 1182 (Fla.2001) (citing Blanco v. State, 452 So.2d 520, 523 (Fla.1984)). The trial court’s discretion is limited by the rules of evidence. See Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001).

In order to be admissible, an admission by a party opponent must be relevant, i.e., it must have some logical bearing on an issue of material fact. See Swafford v. State, 533 So.2d 270, 274 (Fla.1988). In the context of a criminal trial, an admission by the defendant is admissible if it tends in some way, when taken together with other facts, to establish guilt. Id. The evidence must “be relevant to a material issue other than propensity or bad character.” Drake v. State, 441 So.2d 1079, 1082 (Fla.1983).

In Swafford, this Court considered the admissibility of a defendant’s statements in a trial for first-degree murder and sexual battery. Swafford was on trial for the abduction, rape, and murder of a gas station attendant. The victim had been shot nine times, twice in the head. Id. at 272. A witness for the State testified that two months after the murder Swafford suggested getting a girl and said, “[W]e’ll do anything we want to and I’ll shoot her.” Id. at 273. Swafford and the witness drove to a department store parking lot that same night. Id. The witness asked Swafford whether he would not be “bothered” after abducting, raping and murdering a victim selected in a parking lot. Id. Swafford responded, “[Y]ou just get used to it.” Id. This Court said:

Swafford’s statement that “you just get used to it,” when viewed in the context of his having just said that they could get a girl, do anything they wanted to with her and shoot her twice in the head so there wouldn’t be any witnesses, was evidence which tended to prove that he had committed just such a crime in Day-tona Beach only two months before.

Id. at 273-74.

Likewise, in Johnson v. State, 438 So.2d 774, 779 (Fla.1983), this Court held that the defendant’s statement that he would “not mind shooting people to obtain money” was admissible. The same evening that Johnson made the statement, a deputy sheriff and a taxicab driver were shot and the taxicab driver was robbed.

B. APPLICATION OF LAW

After a proffer of testimony concerning the “Dwight” statements, the trial court overruled the defense’s objection and admitted the “Dwight” statements as implied admissions in reliance on this Court’s reasoning in Swafford. The “Dwight” statements were made by Johnston to Detectives Noblitt and Stanton during their third interview with Johnston, after the detectives advised Johnston that they had recovered his fingerprints close to Nu-gent’s body and had executed a search warrant on his apartment. At that time Johnston said to the detectives, “I think I have a problem.” Johnston told the detectives that he had another person named Dwight living inside of him and said that Dwight was “very mean” and “I got to be cautious.” Detective Noblitt testified that Johnston “sat and put his fists together and clenched his fists real tight with his knuckles almost turning white and leaned back in his chair and kind of closed his eyes ... and he said You’ve got to see him, man.’ ” During the same interview Johnston denied that Dwight killed Nu-gent.

At the time the statements were made, Johnston was in jail awaiting trial for the Coryell murder. He was fully aware of the purpose of the interview, had been advised of his constitutional rights, had been told that his fingerprints were found very close to the victim, and had been told that a search warrant had been executed on his apartment. Additionally, Williams rule evidence established that Johnston blamed Dwight for the Coryell murder. Although Johnston did not expressly blame Dwight for the Nugent murder, the fact that Johnston spoke of Dwight while being questioned on his involvement in the Nugent murder is significant.

Pursuant to the holding in Swafford, the question for this Court is whether the “Dwight” statements constitute evidence tending to prove that Johnston committed the Nugent murder. See Swafford, 533 So.2d at 273. A review of the record shows that the statements, taken in the context in which they were made and in light of the statements made during the Coryell murder, constitute evidence tending to show that Johnston was involved in the Nugent murder. The statements are relevant to show more than just propensity or bad character. We therefore hold that the admission of the “Dwight” statements was not an abuse of discretion.

II. WILLIAMS RULE EVIDENCE

Johnston argues that the trial court committed harmful error by allowing the State to introduce Williams rule evidence pertaining to the Coryell murder because the dissimilarities between the Nugent and Coryell murders are pervasive.

A. APPLICABLE LAW

Under the Williams rule, similar fact evidence is generally admissible, even though it reveals the commission of another crime, as long as the evidence is relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See Williams v. State, 110 So.2d 654 (Fla.1959). In Drake v. State, 400 So.2d 1217 (Fla.1981), this Court stated:

The mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared. A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations. Given sufficient similarity, in order for the similar facts to be relevant the points of similarity must have some special character or be so unusual as to point to the defendant.

Id. at 1219.

We held in Drake, 400 So.2d at 1219, Peek v. State, 488 So.2d 52 (Fla.1986), and Thompson v. State, 494 So.2d 203 (Fla. 1986), that prior sexual crimes of the defendants in those cases were inadmissible in their murder prosecutions because the collateral crimes were insufficiently similar. See Chandler v. State, 702 So.2d 186, 192 (Fla.1997). However, the only similarity between the crimes in Drake was that both victims’ hands had been tied behind their backs and both victims had left a bar with the defendant. Drake, 400 So.2d at 1219. In Peek, the principal similarities were that the crimes occurred within two months of each other in the same town, both women were white females, and both women were raped. See Peek, 488 So.2d at 55. In Thompson, the primary similarities were that both victims were approximately the same age and build, both crimes occurred near a particular church parking lot, and the defendant was having domestic problems on both occasions. See Thompson, 494 So.2d at 204. In each of these cases, the court disallowed Williams rule evidence based on the few similarities and the many significant dissimilarities.

Conversely, this Court admitted Williams rule evidence in Crump v. State, 622 So.2d 963 (Fla.1993). In Crump, the police found the nude body of a prostitute (Clark) in an open area adjacent to a Tampa cemetery. An initial examination of the body showed that Clark had been manually strangled and had ligature marks on her wrists consistent with being bound. Ten months later, the police found the nude body of another prostitute (Smith) in an open field adjacent to a different Tampa cemetery. Smith also had been manually strangled and had ligature marks on her wrists consistent with having been bound. Crump was convicted of the Smith murder, and the State attempted to introduce the Smith murder as Williams rule evidence in the Clark trial. This Court stated:

This Court has upheld the use of collateral crime evidence when the common features considered in conjunction with each other establish a sufficiently unusual pattern of criminal activity. See Chandler v. State, 442 So.2d 171, 173 (Fla.1983). Although the common features between Smith’s murder and Clark’s murder may not be unusual when considered individually, taken together these features establish a sufficiently unusual pattern of criminal activity. The common features of the two crimes include: both victims were African-American women with a similar physical build and age (Clark was twenty-eight years old, five feet, two inches and weighed 117 pounds; Smith was thirty-four years old, five feet, five inches tall and weighed 120 pounds); Crump admitted to giving a ride to each victim in his truck in the same area, off Columbus Boulevard in Tampa; Crump admitted to the police that he argued with each victim while giving the victims a ride in his truck; both victims’ bodies showed evidence of ligature marks on the wrists; both victims died from manual strangulation; both victims’ bodies were found nude and uncovered in an area adjacent to cemeteries within the distance of a mile from each other; and the victims were murdered at different sites from where the bodies were discovered. The cumulative effect of the numerous similarities between the two crimes establishes an unusual modus op-erandi which identifies Crump as Clark’s murderer. Thus, we find no error in the admission of the Williams rule evidence.

Crump, 622 So.2d at 968.

B. APPLICATION OF LAW

The question before this Court is whether there are identifiable points of similarity which pervade the factual situations in the Coryell and Nugent murders. If identifiable points of similarity are evident, this Court must then determine whether the dissimilarities between the factual situations are insubstantial. See Gore v. State, 599 So.2d 978, 983-84 (Fla.1992).

After a hearing on the State’s pretrial motion to rely upon Williams rule evidence, the trial court prepared a detailed, written pretrial order on the issue. In its order, the trial court found the following similarities between the Coryell murder and the Nugent murder:

a. Both bodies were submerged in shallow water after death.... Coryell was dumped in a pond, face down, while Nugent was dumped in a bathtub of running water.... However, during the penalty phase of the Coryell murder case [Johnston] testified. [Johnston] testified that he originally wanted to take [Coryell’s] body up to the victim’s apartment, but was scared that she had some type of alarm system. Additionally, [Johnston] testified that he submerged [Coryell’s] body in the pond because he thought the water would destroy evidence.... [T]he use of water in both instances ... with the ... stated belief that water would destroy evidence makes the similarities between the two cases profound....
b. Both victims were single white females with blonde hair and medium build.
c. The location of the residences of both victims were known to [Johnston],
d. [Johnston] knew both victims pri- or to the murders. [Johnston] dated and/or had a social acquaintance with Nugent. But [Johnston] only lived in the same complex as Coryell and had only greeted Coryell.
e.... Both victims were strangled to death in a violent manner and with the use of great force which left multiple areas of dark, widespread contusions on the victims’ neck.
f... .Both victims were left with distinct patterned bruises on their buttocks. In the Coryell case the medical examiner identified the cause of the bruising as [the victim’s] belt. In the Nugent case the medical examiner will testify that the bruises were consistent with the use of a belt.
g.... Both victims had multiple blows from a fist to the head and upper body.

As the trial court noted in its order admitting the Williams rule evidence, there are a number of similarities between the Cor-yell and Nugent murders. In addition to the similarities set forth above, evidence in each case established that both victims were already dead when they were submerged in the water, and both victims were, at least partially, strangled from behind.

The similar belt pattern injuries on the buttocks of both victims are possibly the most unique similarities between the Nu-gent and Coryell murders. Johnston alleges that the State failed to show that these injuries were similar. However, Dr. Martin, the medical examiner in the Nu-gent case, testified that within a reasonable medical probability, one or more of the patterned injuries on Nugent’s buttocks came from a belt. Likewise, the medical examiner in the Coryell case testified that Coryell was beaten on the buttocks with a belt. During the penalty phase of the Coryell case, Johnston confessed to beating Coryell’s buttocks with a belt.

The trial court noted the following dissimilarities between the two murders:

1. Johnston only knew Coryell by sight as a neighbor who he greeted on occasion, while he actually socialized with Nugent.
2. Coryell was kidnaped and apparently abducted in her own automobile from her apartment complex and then sexually battered in a wooded area adjacent to a church. Nugent was found dead in her own home and there was no evidence of kidnaping or sexual battery, nor were there any signs of forced entry into the home.
3. Coryell was thirty years of age; Nugent was forty-seven.
4. Nugent was found in bra and panties, while Coryell was found nude.

The first dissimilarity is insubstantial and likely the result of a difference in the opportunity with which Johnston was presented, rather than a difference in modus operandi. See Gore, 599 So.2d at 984 (citing Chandler v. State, 442 So.2d 171, 173 (Fla.1983)). The second and fourth dissimilarities are explained by Johnston in his confession during the Coryell penalty phase. Johnston testified that he would have taken Coryell’s body to her apartment but was afraid she had an alarm system. Johnston further testified that he did not sexually assault Coryell but wanted to make it appear as if she had been sexually assaulted. Johnston claims to have removed Coryell’s clothing in furtherance of this objective. The third dissimilarity is insubstantial in light of the fact that testimony established that both victims were blond, physically fit, attractive women. As this Court stated in Chandler, “We recognize that the crimes are not exactly the same. However, that fact alone does not preclude admission of collateral crime evidence and, indeed, would erect an almost impossible standard of admissibility.” Chandler, 702 So.2d at 194.

In this case, there are unusual and pervasive similarities between the Coryell and Nugent murders. The dissimilarities between the two murders are insubstantial and are partially explained by Johnston’s own confession in the Coryell case. Because there are pervasive similarities and insubstantial dissimilarities between the Coryell and Nugent murders, we hold that the trial court did not abuse its discretion by finding that the Coryell murder was admissible as Williams rule evidence.

III. SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE TO PROVE IDENTITY

Johnston argues that the circumstantial evidence presented by the State was insufficient to prove identity. The question for this Court is whether the State presented competent, substantial evidence from which the jury could find that all reasonable hypotheses of innocence were excluded.

A. APPLICABLE LAW

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002), cert. denied, — U.S.-, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003). Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. See Pagan, 830 So.2d at 803 (citing Donaldson v. State, 722 So.2d 177 (Fla.1998); Terry v. State, 668 So.2d 954, 964 (Fla.1996)). There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. See Banks v. State, 732 So.2d 1065 (Fla.1999). “A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Orme v. State, 677 So.2d 258, 262 (Fla.1996).

“The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse.” Darling v. State, 808 So.2d 145, 155 (Fla.) (quoting State v. Law, 559 So.2d 187, 188 (Fla.1989)), cert. denied, 537 U.S. 848, 123 S.Ct. 190, 154 L.Ed.2d 78 (2002). In meeting its burden, the State is not required to “rebut conclusively, every possible variation of events” which could be inferred from the evidence, but must introduce competent evidence which is inconsistent with the defendant’s theory of events. Darling, 808 So.2d at 156 (quoting Law, 559 So.2d at 189). Once the State meets this threshold burden, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. Id.

B. APPLICATION OF LAW

The evidence against Johnston can be summarized generally as follows:

1. DNA on master bedroom bed sheet, from a bodily fluid which is consistent with blood, sweat, saliva or mucus, but not semen.
2. Fingerprint on bathtub cold water knob, in close proximity to the body.
3. Fingerprint on a plastic cup under the kitchen table.
4. Two partial shoe tracks which are consistent with Johnston’s shoes, but cannot positively be identified as made by Johnston’s shoes.
5. Testimony by Kelli McCarthy (Nugent’s daughter) concerning Nu-gent’s frequent bathing and house cleaning habits.
6. Williams rule evidence of the similar fact murder of Leanne Coryell.
7. Incriminating statements made by Johnston concerning “Dwight,” the alter ego living inside him, during an interview with detectives investigating the Nugent murder.

8.Inconsistent statements made by Johnston concerning the events that transpired when he was in the victim’s home.

Johnston argues that the evidence against him is not sufficient for a jury to find that there was no reasonable hypothesis of innocence. As support for this argument, Johnston cites a number of district court of appeal cases, including Shores v. State, 756 So.2d 114 (Fla. 4th DCA 2000), where fingerprint evidence alone was insufficient to sustain a conviction. Johnston also cites a case from this Court, Jaramillo v. State, 417 So.2d 257 (Fla.1982), as support for his argument. The facts in Jaramillo and in Shores indicate that the only evidence linking the defendants to the crimes in those cases was fingerprint evidence. In those cases the defendants presented reasonable explanations for the presence of their fingerprints at the crime scenes.

In this case, the defense argued that Johnston’s DNA was transferred to Nu-gent’s master bedroom bed sheet several weeks before the murder. The State countered this argument with Johnston’s statements to law enforcement officers, in which he denied ever entering Nugent’s master bedroom. The defense argued that the bathroom fingerprint was left by Johnston several weeks before the murder when he ran into the shower after Nugent burned him with massage oil. The State countered this argument by showing that Johnston did not convey this version of events to the police until Detective Noblitt told him the location of the fingerprint. The defense maintained that the shoe tracks in Nugent’s kitchen were not from Johnston’s shoes. The State countered this argument by introducing evidence that the shoe impressions were consistent with Johnston’s shoes, but could not be conclusively identified as Johnston’s shoes because of a lack of identifying characteristics. Clearly, the State introduced evidence inconsistent with Johnston’s theory of events.

This Court does not have to determine that every reasonable hypothesis of innocence was excluded in this case. The sole determination we must make is whether there was competent, substantial evidence for the jury to make such a determination. See Darling, 808 So.2d at 156 (citing Law, 559 So.2d at 188-89). The DNA evidence, fingerprint evidence, shoe track evidence, “Dwight” statements and Williams rule evidence of the Coryell murder conviction constitute competent, substantial evidence from which a jury could have concluded that there was no reasonable hypothesis of innocence. Accordingly, we reject Johnston’s argument.

IV. SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE TO PROVE PREMEDITATION

Johnston argues that the circumstantial evidence presented by the State in this case was insufficient to prove premeditation. The question before us is whether the State presented competent, substantial evidence from which the jury could find that all reasonable hypotheses of innocence were excluded.

A. APPLICABLE LAW

Premeditation is defined as “a fully-formed conscious purpose to kill, which exists in the mind of the perpetrator for a sufficient length of time to permit of reflection, and in pursuance of which an act of killing ensues.” Blackwood v. State, 777 So.2d 399, 406 (Fla.2000) (quoting Sired v. State, 399 So.2d 964, 967 (Fla.1981)). Premeditation may be “formed in a moment and need only exist ‘for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.’ ” Blackwood, 111 So.2d at 406 (quoting DeAngelo v. State, 616 So.2d 440, 441 (Fla.1993)). The State may establish premeditation through circumstantial evidence. See Hoefert v. State, 617 So.2d 1046 (Fla.1993). However, the evidence relied upon by the State must be inconsistent with every other reasonable inference. Id.

Evidence from which premeditation may be inferred includes such matters as “the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.” Green v. State, 715 So.2d 940, 943 (Fla.1998) (quoting Holton v. State, 573 So.2d 284, 289 (Fla.1990)).

In Holton, this Court held that the circumstantial evidence presented by the State was sufficient to support a jury finding of premeditation and a verdict of first-degree murder. Holton, 573 So.2d at 289. The victim in Holton was found with a ligature securely tied around her neck. Id. The medical examiner determined that death was caused by strangulation. Id. Scratch marks on the defendant’s chest indicated the victim had struggled during the attack. Id. The victim’s house had been burned, presumably to conceal the crime. Id. This Court held that the evidence was sufficient to prove premeditation. “Because the circumstantial evidence standard does not require the jury to believe the defense version of facts on which the state has produced conflicting evidence, the jury properly could have concluded that Holton’s version of the facts was untrue.” Id. at 290 (citation omitted).

B. APPLICATION OF LAW

The official cause of Nugent’s death was asphyxiation by manual strangulation. Dr. Martin, the medical examiner, opined that the strangulation in this case was not a constant, continuous compression, but was “more of a manual throttling ... meaning it was more pressure, release, pressure, release.” Dr. Martin testified that Nugent would have been conscious for a good portion of the attack. Defensive bruising on Nugent’s arms and hands and defensive fingernail injuries on her nose showed that Nugent struggled with her assailant and attempted to pull the assailant’s hands off her face. In light of this Court’s holding in Holton, Dr. Martin’s testimony was sufficient to establish premeditation. The circumstantial evidence standard does not require the jury to believe the defense’s version of the facts when the State has produced conflicting evidence. Thus, the jury properly concluded that Johnston’s hypothesis of innocence was rebutted by competent, substantial evidence. See Woods v. State, 733 So.2d 980, 986 (Fla.1999); Crump, 622 So.2d at 971. Based upon the manner of Nugent’s death and her antemortem injuries, we find that the State presented suffi-dent evidence for a jury to conclude that the murder was premeditated.

V. CONSTITUTIONALITY OF FLORIDA’S CAPITAL SENTENCING SCHEME

In his final claim, Johnston asserts that Florida’s capital sentencing scheme violates the United States Constitution under the holdings of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This Court has recently addressed this argument and denied relief. See Jones v. State, 845 So.2d 55 (Fla.2003). Additionally, one of the aggravating circumstances the judge considered was Johnston’s previous first-degree murder conviction. This prior violent felony conviction alone satisfies constitutional mandates because the conviction was heard by a jury and determined beyond a reasonable doubt. See Doorbal v. State, 837 So.2d 940, 963 (Fla.), cert. denied, — U.S.-, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003). Accordingly, Johnston is not entitled to relief on this claim.

VI. PROPORTIONALITY REVIEW

Finally, although Johnston does not challenge the proportionality of his death sentence, this Court must still ensure that the sentence is proportional. Rimmer v. State, 825 So.2d 304, 331 (Fla.) (“Although appellant does not argue the proportionality of the death sentence in this case, this Court must nevertheless conduct a proportionality review.”), cert. denied, 537 U.S. 1034, 123 S.Ct. 567, 154 L.Ed.2d 453 (2002). This review “is not a comparison between the number of aggravating and mitigating circumstances; rather, it is a thoughtful, deliberate proportionality review to consider the totality of the circumstances in a case, and to compare it with other capital cases.” Beasley v. State, 774 So.2d 649, 673 (Fla.2000) (internal quotation marks omitted).

The jury in this case recommended the death penalty by a vote of eleven to one. The trial court found such a punishment was appropriate after considering all the evidence and properly weighing the aggravators against the miti-gators. Specifically, the court found two aggravating factors, one statutory miti-gator, and twenty-six nonstatutory miti-gators.

Upon review, we find that the circumstances of this case are similar to other cases in which we have upheld the death penalty. See Johnston v. State, 841 So.2d 349 (Fla.2002) (holding the death sentence proportional for sexual battery, beating, and strangulation of victim where aggrava-tors included prior violent felony conviction and HAC); Orme v. State, 677 So.2d 258, 263 (Fla.1996) (holding the death sentence proportional for the sexual battery, beating, and strangulation of victim where aggravators included HAC, pecuniary gain, and sexual battery); Schwab v. State, 636 So.2d 3, 7 (Fla.1994) (holding the death sentence proportional for kidnaping, murder, and sexual battery of a boy where prior conviction of violent felony, murder in the course of a felony, and HAC were proven). Comparing the circumstances in this case to the cases cited above and other capital cases, we conclude that death is proportionate.

CONCLUSION

We affirm Johnston’s first-degree murder conviction and death sentence.

It is so ordered.

WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

ANSTEAD, C.J.,

concurring in part and dissenting in part.

I agree completely with the majority opinion’s discussion and resolution of all issues except for its discussion of the U.S. Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . Dr. Martin reached this conclusion based on the multiple deep bruising and fingertip contusions to the neck and the lack of pete-chial hemorrhages in and around the eyes. Petechial hemorrhages are sometimes seen in cases of strangulation where continuous pressure was applied.

      . Pliego could not remember whether the encounter involved vaginal or oral intercourse.

      . Testimony from other witnesses established that Johnston was in Nugent's house sometime before January 15, 1997.

      . Williams v. State, 110 So.2d 654 (Fla.1959); § 90.404, Fla. Stat. (Supp.1996).

      . The aggravating factors were: (1) defendant was previously convicted of a felony involving the use or threat of violence to the person, § 921.141 (5)(b), Fla. Stat. (Supp.1996), and (2) the capital felony was especially heinous, atrocious, or cruel (HAC). § 921.141(5)(h), Fla. Stat.

      . The only statutory mitigating factor was that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. § 921.141 (6)(£), Fla. Stat.

      . The nonstatutory mitigating factors were: (1) defendant has a long history of mental illness; (2) defendant suffers from a dissociative disorder; (3) defendant suffers from seizure disorder and blackouts; (4) defendant did not plan to commit the offense in advance; (5) defendant's acts are closer to that of a man-child than that of a hard-blooded killer; (6) defendant is haunted by poor impulse control; (7) defendant is capable of strong, loving relationships; (8) defendant excels in a prison environment; (9) defendant could work and contribute while in prison; (10) defendant has extraordinary musical skills; (11) defendant obtained additional education while he was in prison; (12) defendant served in the U.S. Air Force and was honorably discharged; (13) defendant received a certificate of recognition from the Secretary of Defense for services rendered; (14) defendant excelled and was recommended for early termination while on parole; (15) defendant was a productive member of society after his release from prison; (16) defendant turned himself in to the police; (17) defendant demonstrated appropriate courtroom behavior during trial; (18) defendant has tried to conform his behavior to normal time after time; (19) defendant has a special bond with children; (20) defendant has the support of his mother, brother, and sister; (21) defendant has been a good son, brother, and uncle; (22) defendant has a mother, sister, three brothers, three nieces, and two nephews who love him very much; (23) defendant maintained a Florida driver's license; (24) defendant maintained credit cards and a bank account; (25) defendant can be sentenced to multiple consecutive life sentences and will die in prison; (26) the totality of the circumstances does not set this murder apart from tire norm of other murders.

      . This is significant because Johnston maintained that he left the fingerprints, DNA, and possibly the shoe tracks when he was in Nu-gent's house approximately three weeks before the murder. The State relied on McCarthy's testimony to show that Johnston's fingerprints, DNA, and shoe tracks would not have remained undisturbed in Nu-gent’s house for three weeks.

      . See supra note 5.

      . See supra note 6.

        .See supra note 7.


source: Caselaw Access Project

author: BELL, J. ANSTEAD, C.J.,

license: Public Domain

text:
    BELLSOUTH TELECOMMUNICATIONS, INC., Petitioner, v. Linda MEEKS, etc., Respondent.
    No. SC02-1033.
    Supreme Court of Florida.
    Oct. 16, 2003.
    John R. Hargrove of Heinrich, Gordon, Hargrove, Weihe & James, P.A., Fort Lauderdale, FL, for Petitioner.
    Robert P. Avolio and Tracy L. Markham of Avolio & Hanlon, P.C., St. Augustine, FL, for Respondent.
   BELL, J.

We have for review Meeks v. Florida Power & Light Co., 816 So.2d 1125 (Fla. 5th DCA 2002), in which the Fifth District Court of Appeal certified the following question as one of great public importance:

ARE THE DAMAGES RECOVERABLE BY A MINOR CHILD PURSUANT TO SECTION 768.21(3), FLORIDA STATUTES, LIMITED TO THE PERIOD OF MINORITY?

Id. at 1133. We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution. For the reasons stated below, we answer the certified question in the negative. We approve the district court’s decision that the damages recoverable by a minor child under section 768.21(3), Florida Statutes (2002), should be calculated based on the joint life expectancies of the minor child and the deceased parent.

BACKGROUND

The claim in this case arises from the wrongful death of Herbert Meeks, and relates to the damages recoverable by his son, Kevin Meeks. Kevin was twenty-four at the time of his father’s death, a minor under the statute. Herbert Meeks was electrocuted by downed Florida Power & Light (FP & L) electric wires suspended from a fallen pole allegedly owned by Bell-South. At the time of his death, Meeks was driving on a rural road. The pole had rotted at its base and fallen across the road. Meeks got out of his truck, approached the pole, and was killed.

The parties dispute whether BellSouth or FP & L was responsible for maintaining and inspecting the pole. BellSouth’s predecessor installed the pole in 1952. In 1997, when the accident occurred, the pole was tagged with a metal BellSouth tag and was identified on BellSouth plats as a Bell-South pole. However, before the 1997 accident, BellSouth had removed its wires from the pole and from all the other poles in that pole line. At the time of the accident that killed Meeks, only FP & L had wires running on the pole line that included the fallen pole.

FP & L’s use of BellSouth’s poles was governed by their Joint Use Agreement (JUA), a contract covering the joint use of poles. Under the JUA, each company had the right to use the other’s poles. The owner of a joint-use pole was responsible for maintaining the pole in a safe condition, and could charge the joint user a licensing fee. The JUA provided a formal procedure for a pole owner to abandon a pole, including a requisite thirty-day notice to the joint user. Under this procedure, a pole abandoned by its owner would become the property of the joint user, who would then be solely responsible for the pole’s condition.

With respect to the pole involved in Meeks’ death, when BellSouth removed its wires from the pole, BellSouth did not give formal written notice to FP & L of the abandonment, as the JUA required. However, the JUA expressly provided that the parties could modify its terms through their course of conduct, i.e., the parties could adopt working practices that were different from the express contractual terms. Neither party followed the formal abandonment procedures the JUA prescribed. Nonetheless, despite BellSouth’s claim that it informally abandoned the pole to FP & L, FP & L denies having assumed ownership or responsibility. BellSouth continued to collect a licensing fee from FP & L for the pole, up to the time of the accident that killed Meeks.

Meeks was survived by his wife and by two children, a twenty-eight-year-old daughter and a twenty-four-year-old son. Where a decedent has a surviving spouse, Florida’s wrongful death statute permits a minor child, but not an adult child, to recover damages for loss of parental companionship and for mental pain and suffering. § 768.21(3), Fla. Stat. (2002). The statute defines a minor as a person under twenty-five years of age. Id. § 768.18(2). Meeks’ survivors filed suit against both FP & L and BellSouth. FP & L settled for $1,300,000. The trial court dismissed the claim of Meeks’ daughter for section 768.21(3) damages, because an adult child may not recover these damages under the statute. She does not dispute the dismissal.

BellSouth filed a motion for summary judgment, arguing the two issues it continues to argue on review in this Court. First, BellSouth argued that FP & L was solely responsible for maintaining and inspecting the pole, so that BellSouth owed no duty of care to Meeks. Second, Bell-South argued that any damages awarded under section 768.21(3) to Kevin Meeks should be calculated only for the time until Kevin reached twenty-five, the statutory age of majority.

The trial court granted summary judgment to BellSouth on both grounds. The Fifth District Court of Appeal reversed. The district court first concluded that material fact questions existed regarding whether BellSouth had effectively abandoned the utility pole to FP & L and that, therefore, the trial court had erred in granting summary judgment relieving BellSouth of its duty to maintain the pole in a safe condition. See Meeks v. Florida Power & Light Co., 816 So.2d 1125, 1129-30 (Fla. 5th DCA 2002). Next, the district court held that a minor child’s damages for lost parental companionship and for mental pain and suffering based on a parent’s death were not limited to the period of minority, but should be calculated based on the joint life expectancies of the minor child and the deceased parent. Id. at 1133. The district court certified the question of the correct measure of damages under section 768.21(3) as a question of great public importance.

DISCUSSION

1. Standard of Review

Statutory interpretation is a question of law subject to de novo review. State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla.2001). Our purpose in construing a statute is to give effect to the Legislature’s intent. State v. J.M., 824 So.2d 105, 109 (Fla.2002). In attempting to discern legislative intent, we first look to the actual language used in the statute. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000). If the statutory language is unclear, we apply rules of statutory construction and explore legislative history to determine legislative intent. Id.; Weber v. Dobbins, 616 So.2d 956, 958 (Fla.1993).

2. Controlling Statute

Section 768.21, Florida Statutes (2002), describes the damages recoverable in a wrongful death action, including the following:

(1) Each survivor may recover the value of lost support and services from the date of the decedent’s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value.... In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
(2) The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.
(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury....
(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury.

§ 768.21, Fla. Stat. (2002).

The dispute in this case centers on the measure of damages recoverable by a minor child under section 768.21(3). Section 768.21(3) provides no express guidance regarding the length of time for which a minor child may recover damages. Bell-South argues that the statute should be interpreted to limit a minor child’s recovery to the child’s period of minority. Bell-South points out that, where a decedent leaves a surviving spouse, only minor children can recover under subsection (3). Therefore, if there is a surviving spouse, BellSouth argues that a child’s recovery must be cut off when the child is no longer a minor. We agree with the district court that this is not a proper interpretation of the measure of damages to be awarded a minor child under section 768.21(3).

Contrary to BellSouth’s interpretation, Meeks argues that section 768.21(3) does not limit a minor child’s damages to the period of minority. Instead, Meeks points out that the statute gives a starting date “from the date of injury” for measuring damages, but provides no ending date for the calculation. Meeks argues that the statute should be interpreted to vest recovery rights in a child who is a minor on the date of injury, and to allow recovery through the child’s life. The district court found Meeks’ argument persuasive, and we agree.

3. Liberal Construction

As the district court accurately observed, our analysis is guided by the Legislature’s general intent that the remedial provisions of the wrongful death statute should be liberally, rather than strictly or narrowly, construed. While the general rule is that statutes in derogation of the common law are strictly construed, the general rule of strict construction does not, in Florida, apply to a remedial statute in derogation of the common law. With respect to the wrongful death statute, the Florida Legislature has stated:

It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.

§ 768.17, Fla. Stat. (2002) (emphasis added). With this rule of liberal construction in mind, we examine the specific provisions of section 768.21(3).

4. Parallel Provisions

To ascertain the meaning of a specific statutory section, the section should be read in the context of its surrounding sections. See Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000) (stating that “statutes must be read together to ascertain their meaning”); Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (stating that, “[w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another”). Section 768.21 contains four parallel provisions awarding wrongful death damages to survivors. To determine the appropriate measure of damages under section 768.21(3), we look to the three surrounding subsections. We conclude that harmony among all of these provisions is achieved by permitting a minor child to recover damages under subsection (3) based on the joint life expectancies of the child and deceased parent.

a.Section 768.21(1)

A generally accepted canon of construction provides that when the legislature includes a provision in one section of a statute but excludes it in another, courts will deem the difference intentional and will assign meaning to the omission. INS v. Cardoza-Fonseca, 480 U.S. 421, 432, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). In Florida’s wrongful death statute, the Legislature provided in section 768.21(1) for a discretionary limitation of a minor’s damages in light of the period of minority, but excluded this discretionary limitation from section 768.21(3). Section 768.21(1) gives minor children damages for lost parental support and services. Subsection (1) provides that a minor child’s recovery may be limited to the period of minority, in the factfinder’s discretion. See id. (stating that the period of minority is a factor that “may be considered” in computing the duration of future losses). Section 768.21(3) gives minor children damages for lost parental companionship and for mental pain and suffering. In contrast to subsection (1), subsection (3) contains no limitation of damages in light of the period of minority. If the Legislature had intended a minor’s damages under section 768.21(3) to be limited to the period of minority, this limitation could have been expressly added to subsection (3), either as an absolute limitation or as a discretionary factor as provided in subsection (1). Instead, the Legislature excluded the limitation from subsection (3). This indicates that the Legislature did not intend a minor child’s damages under section 768.21(3) to be limited to the period of minority.

b. Section 768.21(2)

A second parallel provision to section 768.21(3) is section 768.21(2), which grants a surviving spouse damages for the loss of the decedent’s companionship and for the surviving spouse’s pain and suffering. § 768.21(2), Fla. Stat. (2002). As noted by the district court below, the measure of damages under this section is not limited to any time period. When the damages provisions of section 768.21 were first enacted in 1972, subsection (3) precisely mirrored subsection (2), giving minor children the same damages as a surviving spouse. In 1990, the Legislature amended subsection (3) to add damages for adult children. However, the amendment limited an adult child’s damages under subsection (3) only to cases where there is no surviving spouse. BellSouth argues that this amendment should also apply to limit a minor child’s damages if there is a surviving spouse. We disagree. We find nothing in the language of section 768.21(3) or in the legislative history of the 1990 amendment to indicate that the Legislature intended the existence of a surviving spouse to affect the preexisting recovery rights of minor children.

c. Section 768.21(F)

Section 768.21(4), the final parallel provision to section 768.21(3), gives damages to parents for their pain and suffering based on the death of a minor child. Like the district court below, we are persuaded by the reasoning of the Second District Court of Appeal in calculating the appropriate measure of damages for bereaved parents under section 768.21(4). See Gross Builders, Inc. v. Powell, 441 So.2d 1142 (Fla. 2d DCA 1983). Gross Builders held that parents’ damages should not be measured based on the remaining minority years of the child, but should be calculated based on the life expectancies of the parents. Id. at 1143-44. The court reached this conclusion because the evidence in Gross Builders indicated the parents’ pain and suffering could be lifelong. Id. at 1144. Similarly, in this case Kevin Meeks’ pain and suffering could be lifelong. Thus, under Gross Builders’ rationale, Kevin’s damages should be calculated based on his life expectancy. However, because it would be expected that a child would lose his or her parents due to natural causes during the child’s lifetime, a child’s pain and suffering damages related to a parent’s premature death should be limited by the parent’s normal life expectancy. This is, in fact, the measure of damages indicated by the district court below.

In summary, our review of the four parallel subsections granting wrongful death damages to survivors indicates that a minor child’s recovery under section 768.21(3) should be measured by the joint life expectancy of the child and the deceased parent. Of particular significance, a comparison of subsection (3) to subsection (1) reveals the significant omission from subsection (3) of any limitation on a minor child’s damages with respect to the period of minority. As the Legislature included a discretionary limitation by the period of minority in subsection (1), the omission of the limitation from subsection (3) indicates an intent that subsection (3) damages should not be limited by the period of minority. Further, this interpretation of subsection (3) preserves the symmetry presumptively intended by the legislature among subsections (2), (3), and (4) — the three subsections awarding damages to survivors for lost companionship and for pain and suffering.

5. Standard Jury Instruction

Finally, we note that the interpretation we affirm today comports with the accepted judicial construction of damages under section 768.21(3), as reflected by the standard jury instructions published by this Court. Standard jury instructions are not binding precedent; however, the instructions are published under this Court’s authority and are presumed to be correct. Freeman v. State, 761 So.2d 1055, 1071 (Fla.2000). The standard jury instruction for section 768.21(3) indicates that damages are to be based on the life expectancies of the minor child and deceased parent. In re Standard Jury Instructions Civil Cases, 522 So.2d 364, 368 (Fla.1988) (instruction 6.6g). We find no case that has directly addressed the appropriate measure of damages under this section. In the absence of a definitive case, instruction 6.6g provides a useful indication of the prevailing judicial understanding regarding a surviving minor child’s damages in a wrongful death action. In the present case, we find no persuasive reason to depart from this understanding of the Legislature’s intended measure of damages under section 768.21(3).

We therefore hold that the damages recoverable by a minor child under section 768.21(3) are not limited to the period of minority, but should be calculated based on the joint life expectancies of the minor child and the deceased parent.

We decline to address BellSouth’s collateral argument that BellSouth had transferred its responsibility for the utility pole to Florida Power & Light before Herbert Meeks’ accident in 1997, because this issue is outside the scope of the certified question. See Major League Baseball v. Morsani, 790 So.2d 1071, 1080 n. 26 (Fla.2001) (stating that this Court generally declines to address a claim that is outside the scope of the certified question and that has not passed jurisdictional muster).

CONCLUSION

For the reasons stated above, we answer the certified question in the negative and approve the decision of the Fifth District Court of Appeal.

It is so ordered.

WELLS, PARIENTE, LEWIS and QUINCE, JJ., concur.

ANSTEAD, C.J., concurs specially with an opinion.

CANTERO, J., recused.

ANSTEAD, C.J.,

specially concurring.

While I concur in the majority’s determination that a minor child’s recovery of section 768.21(3) damages are not limited to the period of minority, I write briefly only to note that neither the statutory language nor the legislative history adequately answers all of the troubling questions raised by this case. Nevertheless, I particularly commend the thoroughness of Judge Sawaya’s opinion for the Fifth District which we approve today. When all is said and done, however, we are still left with a result that allows one adult child to recover for lifetime pain and suffering for the loss of a parent, while another adult child only a few years older is entitled to no recovery at all.

      . Section 768.21(3) gives damages for lost parental companionship and mental pain and suffering based on the wrongful death of a parent. A parallel provision, section 768.21(1), gives damages for lost support and services due to a parent’s death. Dependent adult children may recover these damages. Section 768.21(1) damages are not at issue in this appeal.

      . Section 768.21(1) gives these damages to "survivors." Survivors include minor children. § 768.18(1), Fla. Stat. (2002).

      . The standard instruction to be given to the jury in a wrongful death case regarding a surviving minor child’s damages is:
      The loss by (name all minor children) of parental companionship, instruction and guidance, and [his] [her] [their] mental pain and suffering as a result of the decedent's injury and death. In determining the duration of such losses, you may consider the [joint life expectancy of the decedent and [the surviving child] [each of the surviving children]] [life expectancy of [the surviving child] [each of the surviving children]] together with the other evidence in the case.

        In re Standard Jury Instructions Civil Cases, 522 So.2d 364, 368 (Fla.1988).


author: PER CURIAM.

text:
    Deandre BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-2315.
    Supreme Court of Florida.
    Nov. 13, 2003.
    Christopher N. Bellows and Amy R. Charley of Holland & Knight LLP, Miami, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Celia Terenzio, Bureau Chief, West Palm Beach, and Karen Finkle, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We granted review of Baker v. State, 793 So.2d 69 (Fla. 4th DCA 2001), based upon the district court’s certification of conflict with the opinion in Lester v. State, 737 So.2d 1149 (Fla. 2d DCA 1999). See art. V, § 3(b)(4), Fla. Const. However, after further consideration, we decline to exercise our discretion to review this matter. Accordingly, the petition for review is hereby dismissed.

It is so ordered.

WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

ANSTEAD, C.J., dissents.


author: ANSTEAD, C.J. WELLS, J.,

text:
    NAACP, INC., etc., et al., Petitioners, v. FLORIDA BOARD OF REGENTS, et al., Respondents.
    No. SC02-1878.
    Supreme Court of Florida.
    Nov. 13, 2003.
    Daniel H. Thompson of Berger Singer-man, Tallahassee, FL; and Mitchell W. Berger of Berger Singerman, Fort Laud-erdale, FL, for Petitioners.
    Daniel Woodring, Office of the General Counsel, Florida Dept, of Educ., Tallahassee, FL, for Respondents.

      Arthur J. England and Elliot B. Kula of Greenberg Trauri’g, P.A., Miami, FL; and Woody N. Peterson, Bradley D. Wine, Timothy D. Sparapani, and Eden M. Polat-nick of Dickstein Shapiro Morin & Oshin-sky LLP, Washington, DC, for AARP; Academy of Florida Trial Lawyers, Inc.; Alliance of Healthcare and Professional Employees, NUHHCE, AFSCME, AFL-CIO; American Civil Liberties Union of Florida; Eathjustice, Farmworker Association of Florida, Inc.; Federation of Physicians and Dentists/Alliance of Healthcare and Professional Employees, NUHHCE, AFSCME, AFL-CIO; Florida AFL-CIO; Florida Consumer Action Network, Inc.; Florida Education Association; Florida League of Conservation Voters, Inc.; Florida National Organization for Women, Inc.; Florida Public Employees Council 79, AFSCME, AFL-CIO; Florida Wildlife Federation; Florida Women’s Consortium; Floridians for Alternatives to the Death Penalty; International Brotherhood of Teamsters on Behalf of Its Florida Local Unions — 173 (Bradenton), 512 and 947 (Jacksonville), 390 and 769 (Miami), 385 (Orlando), and 79 (Tampa); 1000 Friends of Florida, Inc.; Save Our Suwannee, Inc.; The Sierra Club; and Trial Lawyers For Public Justice, Amici Curiae.
    David Lipman, Miami, FL; and Thomas J. Henderson, Michael L. Foreman, and Audrey J. Wiggins, Lawyers’ Committee for Civil Rights Under Law, Washington, DC, for The Lawyers’ Committee for Civil Rights Under Law, Mexican American Legal Defense and Educational Fund, National Asian Pacific American Legal Consortium, and National Abortion and Reproductive Rights Action League, Amici Curiae.
   ANSTEAD, C.J.

We have for review a decision of a district court of appeal on the question of a voluntary association’s standing to bring a rule challenge in Florida administrative proceedings. The district court certified the question to be of great public importance:

DO APPELLANTS/CROSS-APPEL-LEES HEREIN HAVE STANDING TO MAINTAIN CHALLENGES TO THE SUBJECT RULES?

NAACP, Inc. v. Florida Bd. of Regents, 822 So.2d 1, 14 (Fla. 1st DCA 2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons set forth below, we answer the certified question in the affirmative and quash the First District’s decision.

PROCEEDINGS TO DATE

The National Association for Advancement of Colored People, Inc. (hereinafter NAACP), and its members Mattie Garvin and Keith Garvin (Garvins), brought a rule challenge to the Board of Regents’ amendments to Florida Administrative Code Rules 6C-6.001 and 6C-6.002 concerning admissions to the State University System. The rule amendments concerned the elimination of certain affirmative action policies by Florida’s state universities. The association claimed that in addition to its traditional role as an advocacy group for minority rights, its membership included a large number of middle school, high school, and university students who would be affected by the change in policy. The petitioners brought the rule challenge pursuant to section 120.56(l)(a), Florida Statutes (1999), which states in pertinent part: “Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the, rule on the ground that the rule is an invalid exercise of delegated legislative authority.”

The Board of Regents and the Board of Education filed a motion to dismiss for lack of standing, arguing that the allegations of the petition were legally insufficient to demonstrate that any of the petitioners had standing, either individually or in a representative capacity, because they failed to specifically demonstrate how they, or any of NAACP’s members, would suffer an actual injury because of the amendments. The administrative law judge (ALJ), held a hearing on the motion to dismiss and denied the motion, finding that the petitioners had presented sufficient evidence to establish NAACP’s “associational standing ... to represent [its] members as persons substantially affected by the proposed amendments,” and that the Garvins were “substantially affected by the proposed amendments to [rjules 6C-6.001 and 6C-6.002.” NAACP, 822 So.2d at 3. The ALJ found that “significant numbers” of middle school, high school, and college students stand to be substantially affected by the rule amendments. Id. at 4.

The First District summarized the ALJ’s decision as follows:

Regarding the merits of the rule challenge, the ALJ held that the repeal of rule 6C-6.001(10)(e)6 (which provided that, “[w]here necessary to achieve established equal access enrollment goals, up to ten percent of the students may be admitted to a limited access program with different criteria”) was “an invalid exercise of delegated legislative authority”; but that all of the other challenged amendments were valid.

Id. at 3.

APPEAL

The NAACP appealed the ALJ’s decision to the First District, and the Florida Board of Regents and the State Board of Education cross-appealed. In rejecting the ALJ’s decision as to petitioners’ standing to bring a challenge to the admission rules, the First District stated:

We conclude that NAACP failed to present competent, substantial evidence to establish that any of its members would suffer “a real and sufficiently immediate injury in fact” because of implementation of any of the rule amendments challenged. As a result, it failed to demonstrate that any of its members would be “substantially affected” by implementation of any of the challenged amendments. Therefore, it failed to carry its burden of establishing “associational standing” pursuant to the test announced in Florida Home Builders, and we need not consider whether it met the other requirements, including establishing “that the alleged interest [was] arguably within the zone of interest to be protected or regulated.” We hold that NAACP lacked “assoeiational standing” to challenge the rule amendments. Accordingly, we must reverse the ALJ’s decision to the contrary.

Id. at 6. The First District reversed the ALJ’s final order and remanded the case with directions for the ALJ to dismiss the rule challenge for lack of standing. Id. at 8.

Judge Browning dissented and expressed the view that the majority opinion conflicted with numerous prior First District decisions on standing as well as this Court’s decision in Florida Home Builders Ass’n v. Department of Labor & Employment Security, 412 So.2d 351 (Fla.1982). Judge Browning summed up his dissenting position by stating:

[I]n my judgment, the crucial factor is how one weighs the impact of the proposed rules on African-Americans’ admission rights to the SUS, as compared to their rights under the repealed affirmative action programs. My “scales” indicate African-American students’ admission to the SUS under legally established affirmative action programs cannot be repealed by agency rules without giving those covered by such programs the right to challenge the repeal, because existing case law indicates they are “substantially affected” for rule challenge purposes. On the merits, Appellants might not be entitled to relief. However, they have the interest required as “substantially affected parties” to challenge the proposed rules’ validity.

Id. at 14 (Browning, J., dissenting). Upon rehearing, the First District certified to this Court the question of petitioners’ standing as one of great public importance. Id. at 14.

STANDING IN ADMINISTRATIVE PROCEEDINGS

In Florida Home Builders, the Florida Home Builders Association brought suit to challenge a rule adopted by the Bureau of Apprenticeship, Department of Labor and Employment Security. 412 So.2d at 352. The hearing officer found that the association had standing to bring the rule challenge under section 120.56, Florida Statutes (1979), but the First District reversed, finding that such an association was not a substantially affected party. Id. at 352 (citing Dep’t of Labor & Employment Sec. v. Florida Home Builders Ass’n, 392 So.2d 21, 22 (Fla. 1st DCA 1980)). However, as in the instant case, the First District certified a question of great public importance:

Whether, under section 120.56, Florida Statutes, a trade association, which is not itself affected by an agency rule but some or all of whose members are substantially affected by the rule, may seek an administrative determination of the invalidity of the rule as a[n][in]valid exercise of delegated legislative authority.

Id. at 352. Upon review, this Court answered the certified question in the affirmative, disapproving the First District’s decision and remanding the case for a review of the agency rule on the merits. Id. at 352, 354.

In our analysis of “assoeiational standing” in Florida Home Builders, we concluded that the First District’s interpretation was “an excessively narrow construction of section 120.56(1)” and that it restricted public access to the processes provided in the Florida Administrative Procedure Act. Id. at 352. In our analysis of the statutorily created “associational standing,” this Court explained that a key purpose of the legislation was to expand rather than restrict public participation in the administrative process:

We find the district court’s restriction on the standing of associations is an excessively narrow construction of section 120.56(1) and results in restricted public access to the administrative processes established in the Florida Administrative Procedure Act, chapter 120, Florida Statutes (1979). Expansion of public access to the activities of governmental agencies was one of the major legislative purposes of the new Administrative Procedure Act. [n.2] In our view, the refusal to allow this builders’ association, or any similarly situated association, the opportunity to represent the interests of its injured members in a rule challenge proceeding defeats this purpose by significantly limiting the public’s ability to contest the validity of agency rules. While it is true that the “substantially affected” members of the builders’ association could individually seek determinations of rule invalidity, the cost of instituting and maintaining a rule challenge proceeding may be prohibitive for small builders. Such a restriction would also needlessly tax the ability of the Division of Administrative Hearings to dispose of multiple challenges based upon identical or similar allegations of unlawful agency action.
[N.2], “The principal purpose for the adoption of a wholly-revised administrative procedure act for Florida is to remedy massive definitional, procedural and substantive deficiencies in existing law ... (v) by broadening public access to the precedents and activities of agencies.... ” Reporter’s Comments on Proposed Administrative Procedure Act for the State of Florida, March 9, 1974, at p. 3, reprinted in 3 A. England & L. Levin-son, Florida Administrative Practice Manual at 79 (1979).
Id. at 352-53 & n. 2.
After reviewing the legislative history and purpose of chapter 120, we have concluded that a trade or professional association should be able to institute a rule challenge under section 120.56 even though it is acting solely as the representative of its members. To meet the requirements of section 120.56(1), an association must demonstrate that a substantial number of its members, although not necessarily a majority, are “substantially affected” by the challenged rule. Further, the subject matter of the rule must be within the association’s general scope of interest and activity, and the relief requested must be of the type appropriate for a trade association to receive on behalf of its members.

Id. at 353-54 (emphasis supplied). We subsequently acknowledged that Florida Home Builders represents the standard for the breadth of standing in administrative rules challenge cases filed under section 120.56(1) in Palm Point Property Owners’ Ass’n of Charlotte County, Inc. v. Pisarski, 626 So.2d 195,197 (Fla.1993). In Palm Point, we discussed the ramifications of our holding in Florida Home Builders and again explained:

“Granting trade and professional associations standing to represent their members was necessary in order to further the legislative purpose of expanding the public’s ability to contest the validity of agency rules.” 626 So.2d at 197. As in Florida Home Builders, we conclude the First District has again construed section 120.56(1) too narrowly. See Florida Home Builders, 412 So.2d at 352.

We conclude the First District failed to properly apply our holding in Florida Home Builders, expanding the rule of standing, when it overruled the ALJ’s determination. The First District instead concluded that the NAACP “failed to demonstrate that any of its members would be ‘substantially affected’ by implementation of any of the challenged amendments.” 822 So.2d at 6 (emphasis supplied). Similarly, we disagree with the First District’s conclusion that the association had failed to assert any impact of the rule amendments different in kind than the amendments’ impact on all Florida citizens.

Rather, we agree with the analysis of Judge Browning wherein he explained:

Finally, the majority seeks to support its result by determining that “In short the amendments have not been shown to have an impact on NAACP’s members that is different from the impact of all citizens.” If this statement were true, the majority’s result would be correct. However, this is clearly not the case. Such a finding can be made only if the obvious impact on African-American students, as compared to nonminority students, under the proposed rules is misapprehended. Before enactment of the proposed rules, African-American students’ admission to the SUS was under affirmative action programs as members of a recognized minority who, in certain circumstances, would receive a “boost” not available to non-minority students. A white male student and other non-minority students were not entitled to a similar advantage. The proposed rules effect a complete change and make African-American students subject to the identical admission standards as non-minority students. Thus, contrary to the majority’s contention, the effect of the proposed rules on African-American students plainly differs from its effect on non-minority students, and this, without question, provides standing to the NAACP.
... The proposed rules drastically change the admission standards that apply to African-Americans’ and other minority students’ admission to the SUS. African-Americans constitute fifteen percent of the State’s population, and their rights can best be asserted by the NAACP because “the cost of instituting and maintaining a rule challenge proceeding may be prohibitive” for the NAACP’s members, who are often poor and unable to maintain individual rule challenges. See Florida Home Builders, 412 So.2d at 353.

Id. at 12-13. In short, we find that Judge Browning correctly noted that the association had asserted, and the ALJ had agreed, that a substantial number of the association’s members were both prospective applicants to the State University System and were minorities that would obviously be affected by any change in policy concerning minority admissions. These conclusions are supported by the record and are properly predicated upon the essential requirements of our holding in Florida Home Builders.

It also appears that the First District was adopting a rule of standing that would require a challenge to demonstrate immediate and actual harm, i.e., rejection of admission to a state university by a member before standing would be granted. We required no such showing in Florida Home Builders. Indeed, such a holding would constitute a substantial narrowing of the concept of standing as defined in Florida Home Builders. Under our holding there the required showing is that there would be a substantial effect of the rule change on a substantial number of the association’s members. There is no dispute the. NAACP’s student members constitute a substantial number of its membership. Further, we agree with the finding of the ALJ that, while not specifically identifying its student members as current applicants to the university system, the association has demonstrated a sufficient impact on its student members as genuine prospective candidates for admission to the state university system to meet the requirement of substantial impact.

Similarly, we did not impose a requirement in Florida Home Builders that an association would have to prove that one of its members would actually prevail on the merits in a rule challenge in order to establish associational standing. Such a concept improperly mixes the issue of merit with the issue of standing. Conversely, of course, we caution that just because the NAACP can establish “associational standing” under section 120.68(1), Florida Statutes (2002), and Florida Home Builders does not mean that it will automatically prevail on the rule challenge.

Finally, we note that Judge Browning also pointed out the seeming incongruity of the majority’s holding with prior decisions of the same court liberally applying the rule of standing announced by this Court in Florida Home Builders:

Moreover, there exists no rational basis upon which to allow individuals’ fear of injuries to manatees and their habitat, regulation of professionals, and use of endangered lands, etc., to support standing, and deny a similar status to the NAACP’s minority students faced with the repeal of affirmative action programs. If this is the correct status of the law, it should be sanctioned by the Florida Supreme Court, not a split panel of this court.

NAACP, 822 So.2d at 13 (Browning J., dissenting). In other words, Judge Browning was suggesting that it made lit-tie sense to grant standing to persons who had formed associations out of a common interest in protecting wildlife or the environment, and yet deny standing to an association that was formed to protect the rights of minorities and is composed substantially of minorities, when policy concerning the admission of minorities to state universities was changed. We agree.

Accordingly, we quash the First District’s decision and remand for further proceedings in accord with this opinion.

It is so ordered.

PARIENTE, LEWIS, and QUINCE, JJ., concur.

WELLS, J., dissents with an opinion, in which CANTERO and BELL, JJ., concur.

WELLS, J.,

dissenting.

I dissent because I would not answer the certified question. I would remand to the district court for consideration of the issue of whether this case is moot.

Respondents have raised the issue of mootness because of the adoption, in November 2002, of article IX, section 7 of the Florida Constitution. Section 7(d) provides that the Board of Governors “shall operate, regulate, control, and be fully responsible for the management of the whole university system.” By this amendment, the Board of Governors has become a constitutionally created and empowered governmental body, replacing the legislatively created and empowered Board of Regents.

The present case is a rule challenge brought pursuant to section 120.56(l)(a), Florida Statutes (1999). The challenged rules were adopted pursuant to chapter 120, Florida Statutes (1999), which is the Administrative Procedure Act (APA). In their brief to this Court, petitioners point out that their central argument before the administrative law judge was that “under § 240.233, Fla. Stat. (1999), the Legislature gave authority over the regulation of student admissions to individual universities within the [State University System] and not to the Board [of Regents] except under very limited circumstances not applicable here.” Initial Brief of Petitioners at 2. The issue of mootness here presents the concern of whether the APA or the Legislature governs the constitutionally created and empowered Board of Governors. This is an important question similar to that with which this Court dealt in the application of the APA to the new, constitutionally created Florida Fish and Wildlife Conservation Commission in Caribbean Conservation Corp., Inc. v. Florida Fish & Wildlife Conservation Commission, 838 So.2d 492 (Fla.2003).

This question is particularly important and here requires careful scrutiny for two reasons. First, the claims which petitioners make are wholly prospective. Neither of the petitioners claim that the rules they seek to challenge have affected adversely any particular student applications or that petitioner NAACP has members who have actually been denied admittance to universities because of the changes to the rules. Since what is being sought is a prohibition against the changes to the rules that are applicable to future applications, it is self-evident that this appeal is contingent upon a determination of whether the rules adopted by the former Board of Regents, which was legislatively empowered, have any continuing effect now that the Board of Governors, which is constitutionally empowered, has superseded the Board of Regents. Plainly, if the rules adopted by the Board of Regents have no effect on future admissions, then this case should be dismissed and the decision of the district court vacated so that the case will not set precedent since the decision would relate to a dispute that no longer has any meaning.

The second reason that the issue of mootness is important and requires careful scrutiny is that it has a direct bearing on the continuing power of the Legislature in respect to governance of the State University System. If this case were held not to be moot, it could have the meaning that the Legislature continues to have power to regulate and control the State University System even though the constitution has been amended to give that power to the newly created Board of Governors.

In response to respondents’ suggestion of mootness, petitioners raise many interesting questions material to the governance of the State University System. Among other matters raised is the assertion that the Board of Governors, in January 2003, adopted the rules promulgated by the Board of Regents. This brings into focus the question of whether those rules can be challenged in accord with section 120.56, which provides that the basis to challenge an agency rule is that the rule exceeds legislative authority. Inherent within this issue is the question of what legislative authority there is to exceed a rule adopted by a constitutionally rather than a legislatively created body. Secondary to this question is the question posed by petitioners as to what, if section 120.56 does not apply, is the proper procedure for challenging a rule of the Board of Governors.

In view of the import and significance of these questions to the governance of the State University System and to the rules promulgated by other constitutionally created bodies, the issue of mootness in this case requires careful consideration. A decision on standing in this case should not influence the decision as to standing in another case addressing rules adopted by the Board of Governors. If the issue in this case is moot, the parties should begin with a clean slate in respect to the Board of Governors’ rules.

Frankly, the issue of mootness, with its subsidiary questions, has not been adequately briefed in this Court. I conclude that the wisest course would be to remand this case to the district court without answering the certified question. I would direct the district court to consider the issue of mootness, and if it decides the present case is moot, to vacate its prior opinion and remand the case to the administrative law judge for dismissal of the case without prejudice as to any challenge made to rules adopted by the Board of Governors. I believe that for the parties this would be the fairest manner in which to proceed.

CANTERO and BELL, JJ., concur.

      . The respondents have suggested to this Court that the instant case is moot because the rules and amendments at issue have now been adopted by a separate governmental entity with constitutional authority to enact such rules, thus invalidating a challenge under section 120.56(l)(a), Florida Statutes (1999). However, we decline the suggestion. See Holly v. Auld, 450 So.2d 217, 218 n. 1, (Fla. 1984) ("It is well settled that mootness does not destroy an appellate court’s jurisdiction ... when the questions raised are of great public importance or are likely to recur.”). However, our decision in this case should not be construed to preclude the parties from raising the issue of mootness in the district court on remand.

      . The opinion below explains the interests of Mattie and Keith Garvin in this case:
      Appellant Keith Garvin is an African-American who was in the tenth grade at a Florida public high school. He was also active in the NAACP Youth Council. He had not applied to any university, but, upon graduation from high school, hoped to major in computer science or engineering at a university in the State University System. Appellant Mattie Garvin is Keith's mother. She was a member of NAACP, and was interested in 'providing] her son ... with the best possible educational opportunities.''

        NAACP, 822 So.2d at 6-7.

      . The petitioners also challenged rule 6C-6.003, relating to admissions to graduate and professional schools. The ALJ held that the petition's allegations were legally insufficient to demonstrate standing as to NAACP in its individual capacity and as to the Garvins' standing to challenge the rule amendments. NAACP, 822 So.2d at 3. The petitioners have never challenged that decision on appeal and it is not a subject of this review.

      . In the instant case, the First District did conclude that the NAACP technically qualified as an “association” under our decision in Florida Home Builders, although it is not a trade or professional association. NAACP, 822 So.2d at 4.

      . It also appears the First District took the position the NAACP did not have “associational standing” in this case because it did not consider Keith Garvin and his mother as providing the NAACP with a good example of association members who were going to suffer “a real and sufficiently immediate injury in fact” under the challenged rule amendments. 822 So.2d at 6. However, both federal and Florida case law agree that when an association is seeking standing, the individual members are not required to participate. See Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Florida Home Builders, 412 So.2d at 353. Rather, both federal and Florida case law on this subject are well settled that "associational standing” for administrative challenges is contingent on the organization’s demonstration that many of its members, in general, stand to be affected by the rule. See Florida Home Builders, 412 So.2d at 353.

      . Judge Browning cited several First District cases, stating: "In keeping with the rationale expressed by Florida Home Builders, this court has found sufficient 'standing in analogous situations to support a rule challenge by associations.” 822 So.2d at 9; see Southwest Florida Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594 (Fla. 1st DCA 2000); Friends of the Everglades, Inc. v. Bd. of Trs. of Internal Improvement Trust Fund, 595 So.2d 186 (Fla. 1st DCA 1992); Coalition of Mental Health Professions v. Dep’t of Prof'l Regulation, 546 So.2d 27 (Fla. 1st DCA 1989).

      . Article IX, section 7, states:
      SECTION 7. State University System.— (a) PURPOSES. In order to achieve excellence through teaching students, advancing research and providing public service for the benefit of Florida's citizens, their communities and economies, the people hereby establish a system of governance for the state university system of Florida.
      (b) STATE UNIVERSITY SYSTEM. There shall be a single state university system comprised of all public universities. A board of trustees shall administer each public university and a board of governors shall govern the state university system.
      (c) LOCAL BOARDS OF TRUSTEES. Each local constituent university shall be administered by a board of trustees consisting of thirteen members dedicated to the purposes of the state university system. The board of governors shall establish the powers and duties of the boards of trustees. Each board of trustees shall consist of six citizen members appointed by the governor and five citizen members appointed by the board of governors. The appointed members shall be confirmed by the senate and serve staggered terms of five years as provided by law. The chair of the faculty senate, or the equivalent, and the president of the student body of the university shall also be members.
      (d) STATEWIDE BOARD OF GOVERNORS. The board of governors shall be a body corporate consisting of seventeen members. The board shall operate, regulate, control, and be fully responsible for the management of the whole university system. These responsibilities shall include, but not be limited to, defining the distinctive mission of each constituent university and its articulation with free public schools and community colleges, ensuring the well-planned coordination and operation of the system, and avoiding wasteful duplication of facilities or programs. The board’s management shall be subject to the powers of the legislature to appropriate for the expenditure of funds, and the board shall account for such expenditures as provided by law. The governor shall appoint to the board fourteen citizens dedicated to the purposes of the state university system. The appointed members shall be confirmed by the senate and serve staggered terms of seven years as provided by law. The commissioner of education, the chair of the advisory council of faculty senates, or the equivalent, and the president of the Florida student association, or the equivalent, shall also be members of the board.

      . The Board of Regents was created by the Legislature and authorized by statute to adopt statewide rules to implement the duties conferred upon it by law. See §§ 240.205, 240.209, Fla. Stat. (2000).

      . Those questions include the following:
      Have the named Respondents disappeared, now replaced by a "Florida Board of Governors?” If so, why did the new entity not file a substitution of parties under Rule 9.360(c), Fla. R.App. P.? Under what authority did the new entity file the rules that are attached to the Suggestion [of Mootness]? Did the new entity file these rules with the Secretary of State, with the intent thereby of subjecting the rules to review under Chapter 120, Florida Statutes? Have the named Respondents' rules cease to exist? Have both named Respondents themselves now ceased to exist? What agency is now enforcing the rules under challenge here? If it is the "Florida Board of Governors,” where is their staff and what is their budget? Under what specific authority do they operate, beyond the constitutional provision establishing the Statewide Board? What legislation has been enacted since the passage of the constitutional amendment in the fall of 2002 creating the Statewide Board to implement the amendment? What does the legislation say about the authority of this new entity to adopt rules or otherwise set educational policy for the state? What does the new entity itself say about such authority, and where is that statement published?
      Petitioners' Response to "Respondents Notice Suggesting Mootness” at 6-7.