Brugmann v. State
| Decision Date | 27 April 2012 |
| Docket Number | Lower Tribunal No. 01-7975,Lower Tribunal No. 06-32696,No. 3D09-2540,3D09-2540 |
| Parties | Bruce B. Brugmann, Petitioner, v. The State of Florida, and Sean Casey, Respondents. |
| Court | Florida District Court of Appeals |
Bruce B. Brugmann, Petitioner,
v.
The State of Florida, and Sean Casey, Respondents.
No. 3D09-2540
Lower Tribunal No. 01-7975
Lower Tribunal No. 06-32696
Third District Court of Appeal State of Florida
January Term, A.D., 2012
Opinion filed April 27, 2012
A Case of Original Jurisdiction - Petition for Review.
Hunton & Williams and Thomas R. Julin, for petitioner Bruce B. Brugmann.
Pamela Jo Bondi, Attorney General, and Forrest L. Andrews, Jr. and Angelica D. Zayas, Assistant Attorneys General, for respondent State of Florida; Sean Casey, in proper person.
Before RAMIREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge
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PER CURIAM.
We grant the petitioner's motion for rehearing and grant the petitioner's request to issue a written opinion. We withdraw the Court's prior order denying the petition for review of order sealing judicial record, and substitute the following in its place. For the reasons set forth below, we deny the petition.
Bruce B. Brugmann ("Brugmann")1 filed before the trial court a Motion to Intervene to Oppose the State's Motion to Seal Transcripts, which the trial court granted.2 It is well established that "[t]he intervenor must accept the record and pleadings as they exist in the litigation and the intervenor may not raise any new issues." Omni Nat'l Bank v. Ga. Banking Co., 951 So. 2d 1006, 1007 (Fla. 3d DCA 2007). Indeed, "[t]he law is settled that an intervener is bound by the record made at the time he intervenes and must take the suit as he finds it." Krouse v. Palmer, 131 Fla. 444, 447, 179 So. 762, 763 (1938). See also Riviera Club v. Belle Mead Dev. Corp., 141 Fla. 538, 543, 194 So. 783, 784-85 (1940); Nelson Bullock
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Co. v. S. Down Dev. Co., 132 Fla. 495, 496, 181 So. 365, 365 (1938) ("Anyone claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding . . . ."); Greenhut Constr. Co., v. Henry A. Knott, Inc., 247 So. 2d 517, 519-20 (Fla. 1st DCA 1971) ("[S]ubject to the qualification that intervention shall be in subordination to and in recognition of the propriety of the main proceeding, an intervenor is a party for all purposes with the same rights and privileges of other parties to the cause.").
In his petition, Brugmann seeks review of the trial court's August 18, 2009 order sealing judicial records. Specifically, the records Brugmann seeks are "transcripts of tape recordings and tape recordings that are claimed by the State of Florida and the defendant below, Sean Casey, to be recordings of Casey's defense attorney, Milton Hirsch, and a 'forensic psychologist' working with Hirsch, Michael E. Rappaport, Ph.D, that were made without the consent of either." (Petition, p. 1).
As more fully discussed below, this Court previously has affirmed: (1) the trial court's rulings on the illegality and admissibility of the tape recordings at issue; (2) the trial court's rulings on whether the recordings are required to be confidential pursuant to chapter 934, Florida Statutes; and (3) the trial court's rulings on whether Hirsch and/or Rappaport had an expectation of privacy.
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Mandates have issued on those decisions, and the relevant terms of court have long since expired without a recall of either mandate.
Nonetheless, Brugmann argues that this Court's prior decisions have no precedential value because they were per curiam affirmances. That argument is without merit. "It is the decision of the appellate court, and not its opinion that becomes law of the case. Therefore, a per curiam decision without an opinion becomes the law of the case as to all issues concluded in the appellate proceeding in which it was entered, in the same manner as a decision supported by an opinion." Philip J. Padovano, Florida Appellate Practice, § 18.12, at 371-72 (2007-2008 ed.); see Buchman v. Canard, 926 So. 2d 390 (Fla. 3d DCA 2005) (noting that doctrine of law of the case applies to a per curiam decision of the appellate courts).
Indeed, in Bueno v. Bueno de Khawly, 677 So. 2d 3, 4 (Fla. 3d DCA 1996), this Court held that "[a] per curiam decision of the appellate court is the law of the case between the same parties on the same issues and facts, and determines all issues necessarily involved in the appeal, whether mentioned in the court's opinion or not." (quoting Mitzenmacher v. Mitzenmacher, 656 So. 2d 178, 179 (Fla. 3d DCA 1995)). Because Brugmann is an intervenor whose interest is subordinate, and because Brugmann, as an intervenor, "is bound by the record made at the time
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he intervenes," Krouse, 131 Fla. at 447, the doctrine of law of the case applies to him.
The only issue raised by Brugmann not addressed in this Court's prior decisions is whether chapter 934, Florida Statutes, is unconstitutional if it requires the sealing of records and limits public access to the proceedings. Brugmann cites no case law in support of this argument. The Florida Supreme Court in Shevin v. Sunbeam Television Corp., 351 So. 2d 723 (Fla. 1977), however, held that section 934.03, Florida Statutes, was constitutional.3
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Although the issues raised in Brugmann's petition have been presented to and considered by this Court on multiple appeals, we address below the factual and procedural history, as well as the multiple issues raised both here and below in the lower court's Case No. F01-7975, styled State of Florida v. Sean Casey.
I. FACTUAL AND PROCEDURAL HISTORY
On March 11, 2001, Casey's automobile struck and killed a pedestrian crossing Harding Avenue on Miami Beach. Casey was charged in Case No. F01-7975 with one count DUI manslaughter in violation of section 316.193(3)(c)3.b, Florida Statutes (2001), one count of vehicular manslaughter in violation of section 782.071(2), Florida Statutes (2001), and one count of leaving the scene of a crash involving a death in violation of section 316.027(1)(b), Florida Statutes (2001).
A. SEAN CASEY'S FIRST APPEAL BEFORE THE THIRD DISTRICT: CASEY'S MOTIONS TO SUPPRESS -CASE NO. 02-04
Prior to trial, Casey filed a motion to suppress evidence taken from his home and car and any evidence derived therefrom. In this motion, Casey asserted that the police conducted an unconstitutional warrantless search of his apartment and his car. Casey also filed a motion to suppress pre-arrest statements that he gave at
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the police station, asserting that these statements were obtained illegally. Finally, Casey filed a supplemental motion to suppress that incorporated his prior motions to suppress and also sought to suppress evidence obtained by the police by the physical extraction of his blood.
Prior to trial, the trial court held an evidentiary hearing on Casey's motions to suppress. At the conclusion of that hearing, the trial court granted Casey's suppression motion, and subsequently entered a written order suppressing the evidence. The State appealed, and on July 24, 2002, this Court issued a decision in State v. Casey, 821 So. 2d 1187 (Fla. 3d DCA 2002), reversing the trial court's order.
B. CASEY FLEES, RETURNS, PLEADS GUILTY, AND MOVES TO VACATE PLEA
On September 10, 2004, while awaiting trial in the traffic fatality case, Casey failed to appear in court and an alias capias was issued. Casey fled the jurisdiction and attempted to obtain permanent residency status in Chile. Chile, however, eventually began deportation proceedings against Casey. Upon Casey's extradition from Chile and return to the United States, he was charged separately in case F06-32696 with failing to appear while on bail in violation of section 843.15(1)(a), Florida Statutes. On September 1, 2006, Casey filed a demand for a speedy trial in the traffic fatality case, Case No. F01-7975.
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On October 17, 2006, when the traffic fatality case was called to trial, the State offered Casey a plea. Casey accepted the State's offer to plead guilty in Case No. F01-7975 to one count of DUI manslaughter, one count of vehicular manslaughter, and one count of leaving the scene of a crash resulting in a death in exchange for a sentence of 11.5 years with the sentence as to count 2 suspended. Casey also agreed to plead guilty in Case No. F06-32696 to one count of failing to appear while on bail in exchange for a 366-day sentence consecutive to the sentence imposed in Case No. F01-7975, the traffic fatality case. A copy of the October 17, 2006, plea colloquy is attached as Appendix 1.
On November 2, 2006, Casey filed a Motion to Vacate Plea alleging that he was deprived of conflict-free counsel because his prior trial counsel allegedly advised him to flee before trial, assisted him in his efforts to flee, and encouraged him to take plea in order to prevent him from explaining that counsel advised him to flee. On or about January 5, 2007, Casey filed an addendum to his claim, arguing that prior trial counsel also rendered ineffective assistance of counsel by failing to call Casey as a...
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