text:
    Joseph Robert SPAZIANO, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D05-3506.
    District Court of Appeal of Florida, First District.
    June 9, 2006.

      Terrence E. Kehoe of the Law Offices of Terrence E. Kehoe, and James M. Russ of the Law Offices of James- M. Russ, P.A., Orlando, for Petitioner.
    Kim Fluharty, General Counsel, and Susan Schwartz, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Inmate Joseph Robert Spaziano petitions for writ of certiorari from an order of the circuit court denying his petition for writ of mandamus in which he challenged respondent Florida Parole Commission’s calculation of his presumptive parole release date (PPRD). He also seeks review of the circuit court’s order imposing a lien on his inmate trust account to recover appellate filing costs. We deny the petition insofar as it relates to the order denying his claims as to the calculation of his PPRD, but grant it pertaining to review of the order imposing a lien on his inmate trust account.

Before addressing the merits of the petition, we turn first to respondent’s argument that Spaziano did not timely file his petition, because he sought review only of the February 2004 Commission order establishing his PPRD, which merely reaffirmed the prior 1999 Commission action, from which he failed to seek review. As a consequence, the Commission argues that the present petition is untimely and barred by the doctrine of laches. We cannot agree. As this court noted in Johnson v. Florida Parole Commission, 841 So.2d 615, 617 (Fla. 1st DCA 2003), the question of the timeliness of an inmate’s petition as directed to the establishment of a PPRD must be raised by the affirmative defense of laches. To prevail on a laches defense, the Commission must show that petitioner’s delay in challenging his PPRD was unreasonable, and the Commission was unreasonably prejudiced in responding to the petitioner’s claim. See McCray v. State, 699 So.2d 1366, 1368 (Fla.1997). In the present case, the circuit court ruled on the merits of the mandamus petition, without addressing the laches defense, and the Commission has failed to assert that petitioner’s alleged delay in attacking the PPRD has prejudiced its ability to respond to the claims. Accordingly, we reject its untimeliness objection.

We similarly reject petitioner’s claim that he was denied due process of law by the circuit court’s refusal to conduct a hearing on his mandamus petition. Among other things, petitioner contends that he filed the petition pursuant to Florida Rule of Civil Procedure 1.630, which governs mandamus actions in the circuit court, and, in that it is an original proceeding, it served as a legal substitute for a plenary appeal, entitling him to an oral argument. We reject this argument. As the court commentary to rule 1.630 observes: “[T]he general nature of the procedure is appellate and presumes that the proceeding is basically an appellate proceeding.”

Because, as petitioner acknowledges, his mandamus petition functioned as an appeal from Commission action, and the procedure provided is in the nature of an appellate proceeding, he is not entitled to oral argument in such proceeding. Instead, oral argument “may be permitted,” see Florida Rule of Appellate Procedure 9.320, if the court believes oral argument would aid it in understanding the issues. At no time did petitioner file a separate request for oral argument in regard to his mandamus petition. We therefore conclude the failure of the circuit court to conduct a hearing on the mandamus petition does not constitute a violation of a clearly established principle of law resulting in a miscarriage of justice, which is an essential predicate for certiorari relief. See Tedder v. Fla. Parole Comm’n, 842 So.2d 1022, 1024 (Fla. 1st DCA 2003).

Turning to the merits of petitioner’s challenge to the Commission’s establishment of his PPRD, because the challenge is founded in large measure on a lack of evidentiary support for the reasons given, we find the need to reiterate the basis of our review standard, which is not that applied to a direct appeal of a Commission order, as had formerly existed under the Florida Administrative Procedure Act, see Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), but is instead one for certiorari review directed to the order of the circuit court denying the petition for mandamus. Thus, our “[rjeview of a circuit court’s denial of a petition for writ of mandamus, when sitting in its appellate capacity, is limited to whether the circuit court afforded due process and observed the essential requirements of law.” Frederick v. David, 926 So.2d 409 (Fla. 1st DCA 2006). Accord Sheley v. Fla. Parole Comm’n, 703 So.2d 1202, 1206 (Fla. 1st DCA 1997).

Our examination of the record discloses that on August 13, 1975, petitioner was convicted in the Circuit Court of Orange County, Florida, of two offenses: forcible carnal knowledge and aggravated battery. He received a life sentence as to the former offense, and a consecutive five-year sentence for aggravated battery. In 1976, in Seminole County, petitioner was convicted of first-degree murder and sentenced to death. Subsequently, based on newly discovered evidence, the judgment and sentence for murder were vacated and, in November 1998, petitioner entered a nolo contendere plea to the lesser offense of second-degree murder, for which he received a 23-year sentence, with credit applied for all of the time previously served on the first-degree murder conviction.

On March 18, 1999, the Commission set a PPRD of April 28, 2060, which included a salient-factor score of 180 months, the maximum matrix time range for the primary conviction of forcible carnal knowledge, which is that assigned for a level-five offense-severity designation. The salient-factor score was increased by adding 840 months based on five aggravating factors. Petitioner contends the reasons provided for each of the five factors are not supported by the record.

First, the Commission added 120 months for the consecutive five-year sentence for aggravated battery as a multiple separate offense to that of forcible carnal knowledge, without regard to the fact that the maximum matrix time range for an aggravation of a third-degree felony was 48 to 64 months. Although the 120-month assessment was in excess of the maximum matrix time range for a third-degree felony, the Commission rules permit aggravations in excess of the matrix time range when, among other things, “[t]he offense involved multiple separate offenses.” See Fla. Admin. Code R. 23-21.010(5)(a)l.h. The five-year consecutive sentence is clearly a multiple separate offense to the primary offense of forcible carnal knowledge. See Fla. Admin. Code R. 23-21.008.

While the amount of the aggravation is considerably in excess of the maximum amount of aggravation provided by the Commission’s rule, the aggravation is not based upon an illegal ground or improper consideration. See Fla. Parole Comm’n v. Huckelbury, 903 So.2d 977, 978 (Fla. 1st DCA), review denied, 913 So.2d 596 (Fla.2005). As a consequence, petitioner has failed to demonstrate that the circuit court’s ruling as to factor one constitutes a departure from the essential requirements of law.

The Commission also added 180 months based on petitioner’s second-degree murder conviction, with the following explanation: “Multiple Separate Offense,” and included a reference to the Seminole County murder conviction. Petitioner argues that the facts underlying the reason do not support it, because he had completed his sentence for second-degree murder when he was sentenced for such crime on November 6, 1998, by application of the credit given him. Moreover, he argues the conviction for second-degree murder in Seminole County was a totally separate and distinct conviction from those occurring in Orange County for the offenses of forcible carnal knowledge and aggravated battery. In fact, petitioner’s murder offense occurred approximately six months before those for which he was prosecuted in Orange County. As a consequence, he continues, the 180-month aggravating factor must be vacated because the second-degree murder conviction cannot be deemed a multiple separate offense. Neither, he concludes, can the aggravation be justified by any other theory, such as prior criminal record.

Although we agree with petitioner that the record does not support the reason given by the Commission, we do not agree that the factor must be eliminated. While the Commission did not give as a reason for the aggravation that the conviction for second-degree murder is a concurrent conviction, it now argues that such factor can be justified on such basis. The failure of the record to support the reason given by the Commission does not undermine the validity of the aggravation if the explanation is “adequate to afford an inmate insight into why his term to be served was aggravated beyond the matrix range.” Baker v. Fla. Parole & Prob. Comm’n, 384 So.2d 746, 748 (Fla. 1st DCA 1980). This rule mirrors that of the Commission, which recognizes that the examples listed for aggravation are not all-inclusive, and that the Commission is not limited by them in deciding to aggravate, “as long as a written explanation of the factor is provided to the inmate.” Fla. Admin. Code R. 23-21.010(5). In the present case, it clearly appears that the Commission was relying upon petitioner’s conviction for the offense of second-degree murder, which, while not explicitly designated as such, was a concurrent sentence to that previously imposed for the forcible carnal knowledge. It was, moreover, one which resulted in great bodily harm to the victim, and, as such, could be aggravated. See Fla. Admin. Code R. 23-21.010(5)(a)l.b. Therefore, we conclude the trial court did not depart from the essential requirements of law in refusing to grant relief as to factor two.

The Commission also assessed 60 months in regard to factor three, explaining that petitioner had “a documented history of escalating or violent behavior.” Petitioner argues that there is no documented history of such behavior in that the Commission relied on a 1963 conviction for third-degree assault and the second-degree murder conviction, which, because they were used in calculating the salient factor score, cannot be used as an aggravating factor. Fla. Admin. Code R. 23-21.010(2)(b). In addition, the Commission relied upon conduct reports from 1978 and 1980, relating to his bad conduct during his incarceration. Petitioner argues those reports are stale and fail to show an escalating pattern of violent behavior; thus, this factor must be stricken.

Again, we cannot agree. Although the record does not support the Commission’s reason of escalating, violent behavior, meaning a progression from non-violent to violent crimes, a progression of increasingly violent crimes, or a pattern of increasingly serious activity, see Ewell v. State, 852 So.2d 436, 437 (Fla. 5th DCA 2003), it does reflect a history of violent behavior. Because the reason given was couched in conjunctive terms, we conclude that petitioner has failed to demonstrate that the trial court’s ruling as to the factor-three aggravation constitutes a departure from the essential requirements of law.

As to factor four, imposing 240 months in aggravation, the Commission gave as the reason: “The offender has a history of poor institutional conduct and continued assaultive behavior as evidenced by eight processed disciplinary reports, including the armed assault of two correctional officers on one occasion and threatening to kill a correctional officer on another occasion.” Petitioner assails this factor as being unsupported by the record because the record fails to show he received a disciplinary report from the Department of Corrections from 1991, until his 2004 review; therefore, the 240-month aggravator should be vacated because the Commission’s reason is stale and inadequate.

Once again, we cannot agree. Whether the information the Commission relied upon could be deemed stale is beside the point. As the Commission responds in its argument, it considers all of petitioner’s institutional conduct throughout his entire incarceration. As this court observed in Benton v. Florida Parole and Probation Commission, 418 So.2d 1127, 1128 (Fla. 1st DCA 1982), a decision to aggravate an inmate beyond his matrix time range is within the Commission’s discretion, subject only to the limitations of section 947.172, Florida Statutes, governing the establishment of PPRDs, and rule 23-21.010, pertaining to the Commission’s decisions outside the matrix time range. In that there is no specific prohibition in either the statute or the rule for the reason given, we cannot conclude that the court departed from the essential requirements of law in denying relief as to this particular claim.

In regard to factor five, the Commission assessed 240 months in aggravation, giving as its reason that the offense of forcible carnal knowledge was particularly heinous and cruel in that after petitioner committed the offense, he threatened the 16-year-old victim with a knife and choked her unconscious with her own belt. Petitioner argues that the reasons given are not supported by the record; that the victim instead testified that petitioner had “knocked her around,” and had choked her to unconsciousness by placing a belt around her neck, but that the remainder of the reasons given for the aggravation were contrary to the victim’s sworn testimony. Our review of the record shows that petitioner required the victim to engage in a sexual act, and then choked her into unconsciousness. Although there is nothing in the record disclosing that petitioner himself committed the other behavior the Commission recited, it is nonetheless undisputed that petitioner participated with and aided another person in committing the crime. In our judgment, the record adequately supports the reason given.

We do, however, agree that the lower court departed from the essential requirements of law by denying petitioner’s motion for relief from the order imposing a lien on his prison trust account for the purpose of covering his appellate costs. In our judgment, a petition for writ of mandamus challenging a PPRD is a “collateral criminal proceeding.” In Schmidt v. Crusoe, 878 So.2d 361, 367 (Fla.2003), the supreme court concluded “that a gain time challenge is analogous to a collateral challenge to a sentence in a criminal proceeding because the end result is the same — the inmate’s time in prison is directly affected.” Under such circumstances, the general indigency statute, section 57.01, Florida Statutes, applies.

Although this court has not specifically addressed the question whether the collateral criminal proceeding exclusion from the imposition of a lien on a prisoner’s trust account applies to challenges to actions of the Parole Commission, the Fourth District Court of Appeal in Thomas v. State, 904 So.2d 502 (Fla. 4th DCA 2005), has. Thomas decided that a mandamus challenge to the parole statutes is a collateral criminal proceeding exempt from the section 57.085, Florida Statutes, prison lien provision. We are of the same opinion.

The test adopted in Schmidt for treatment of an action as a collateral criminal proceeding for the purpose of the exemption from the prisoner indigency lien provision is whether the action affects the length of time an inmate will actually serve in prison. In our judgment, a mandamus petition seeking the correct calculation of a prisoner’s PPRD is analogous to an action raising a gain time issue, because a PPRD imposed outside the maximum matrix time range for a specific offense clearly affects the length of time an inmate will spend in prison. Accordingly, we conclude the trial court departed from the essential requirements of law in denying petitioner’s motion to vacate the lien on his inmate trust account. However, we certify to the supreme court the question previously certified by another panel of this court in Cox v. Crosby, 27 So.2d 45 (Fla. 1st DCA 2006), rev. granted sub nom. McDonough v. Cox, 924 So.2d 809 (Fla.2006).

The petition for certiorari is

GRANTED IN PART AND DENIED IN PART.

ERVIN and WOLF, JJ., concur; DAVIS, J., concurs in result only.

      . Aggravated battery was classified a third-degree felony at the time petitioner committed the offense in 1974.


source: Caselaw Access Project

author: BENTON, J.

license: Public Domain

text:
    CITY OF JACKSONVILLE, Appellant, v. WESTLAND PARK ASSOCIATES, II, et al., Appellees.
    No. 1D05-5770.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2007.
    Richard A. Mullaney, General Counsel, Bruce Page, Assistant General Counsel, and Scott D. Makar, Chief, Appellate Division, Jacksonville, for Appellant.
    Paul M. Harden and D.R. Repass, Jacksonville, and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellees.
   BENTON, J.

The City of Jacksonville appeals the final judgment entered in an eminent domain ease insofar as it awarded Westland Park Associates, II (Westland) $685,000 in “severance damages,” in addition to the $143,420 it awarded for the part (Parcels 106, 706, and 806) of Westland’s property that the City actually took. We reverse.

Owner of the southwest corner of Bland-ing Boulevard and Collins Road in Jacksonville, Westland does not challenge the trial court’s Order of Taking. Parcel 106, a strip adjacent to Collins Road, became the City’s property in fee simple. As to Parcel 806, the City took a permanent easement, and, as to Parcel 706, a temporary construction easement. We do not disturb the $143,420 award of compensation for the interests in Parcels 106, 706 and 806. But we reverse the final judgment insofar as it awards an additional $685,000 (plus interest) in severance damages on account of changes in traffic flow anticipated from construction of a new median in Collins Road on property the City already owns.

The City took a strip thirteen feet wide at its widest point for a new sidewalk, curb, gutter, and bicycle lane, and to install drainage pipes, all in connection with widening Collins Road from two lanes to four lanes, adding turn lanes and a median. This taking did not entail loss of a single space in the parking lot for the Burger King restaurant that stands on Westland’s property. Westland asserted, however, that building a new median in Collins Road would discourage westbound drivers who wanted to turn left in order to patronize the Burger King (or any other fast food franchisee Westland might lease to) and would interfere with or complicate the egress of customers leaving the Burger King parking lot who wanted to end up traveling west on Collins Road.

The City filed a motion in limine, seeking an order excluding as irrelevant testimony or other evidence about the effects of constructing a median on Collins Road. The motion relied on Division of Administration, State Department of Transportation v. Capital Plaza, Inc., 397 So.2d 682 (Fla.1981), in which our supreme court had held severance damages unavailable in an eminent domain proceeding, if based on reduced access attributable to median construction in an abutting roadway. Id. at 683. In Capital Plaza, the court said:

DOT constructed the median within its previously owned right of way. Construction of the median, not the taking, caused the alleged damage. Severance damages are not available for a change in traffic flow.
.... [T]o receive severance damages, any complained-of impairment must result directly from a taking.

Id. But the learned trial judge (Judge Mitchell’s predecessor on the case) denied the motion in limine, on the purported authority of Lee County, Florida v. Exchange National Bank of Tampa, 417 So.2d 268, 269-70 (Fla. 2d DCA 1982) (positing an exception allowing severance damages for effects emanating offsite “where the use of the land taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put” and “it is impossible to separate the damages caused by the small portion of the ... taken land from the damages caused by the [project] as a whole”).

Denial of the motion in limine was error. Under Capital Plaza, all evidence related to changes in traffic flow resulting from construction of the median should have been excluded. See 397 So.2d at 683 (“[L]andowners have no compensable interest in traffic flow-”). See also Dep’t of Transp. v. Fisher, 31 Fla. L. Weekly D1904, D1904, 2006 WL 1933416 (Fla. 2d DCA July 14, 2006) (“Because a property owner has no right to a specific level of traffic flow, the question of whether access has been diminished or destroyed must focus on physical access to the property itself — not the amount of traffic that can or will pass by the property postconstruction.”) (citation omitted); Div. of Admin., State of Fla. Dep’t of Transp. v. Ness Trailer Park, Inc., 489 So.2d 1172, 1179 (Fla. 4th DCA 1986) (“There was no basis in law for letting the jury hear testimony respecting severance damages purportedly because of loss of access; nor was the basing of such damages on the overall impact of the comprehensive project permissible.”); Lee County, 417 So.2d at 271-72 (“While the value of its entire property may have been greatly reduced by virtue of the construction of the nearby [public improvement offsite], the appellee could make no claim for severance damages if the county had not chosen to condemn any of its property. Yet, the appellee will be in no different position as a result of the taking.... Hence, it was error for the court to permit the appellee’s appraisers to predicate their opinions upon consequential damages caused to the remainder by the proximity to the [public improvement offsite].”) (citation omitted); City of Orlando v. Cullom, 400 So.2d 513, 516 (Fla. 5th DCA 1981) (ruling that “the restriction of vehicular traffic past the point of appellees’ building” was not a taking).

The testimony of Ronald Moody, West-land’s appraiser, began by tracking the City’s appraisal as to the value of the interests taken in Parcels 106, 706, and 806. Mr. Moody testified he took the City’s total figure for the three parcels— $105,030 — as a starting point, but added approximately $38,390 for “what will [have to] be done after everything is done as far as putting things back,” bringing his estimate for total compensation for the taking to $143,420. This is the figure the jury adopted as total compensation for the interests taken in Parcels 106, 706 and 806, and neither party has contested this amount.

Westland put on no evidence that the actual taking of its property, as opposed to effects it anticipated from median-induced changes in traffic flow, would cause any severance damages. See Capital Plaza, 397 So.2d at 683 (“When less than the entire property is taken, compensation for damage to the remainder can be awarded only if such damage is caused by the taking.”) (emphasis supplied).

Ronald Moody did testify that the highest and best use of Westland’s property in the “before” condition was as a fast food restaurant, and would become what he described as a “slow food” or “destination” restaurant, in the “after” condition, the latter being less profitable, negatively affecting the resale value of the property. But the entire reason for this putative change in property value was, Mr. Moody testified, that the property would be harder to get in and out of quickly for certain drivers — solely on account of the change in traffic flow resulting from construction of the new median.

Westland also presented conclusory testimony that access would be “substantially diminished,” but it did not dispute that all driveways would still be open after the City finished the improvements contemplated. The City’s appraiser, Mr. Veasey, testified that losing the “left-in/left-out access” from Collins Road would cause no permanent damage to the remainder and would not diminish its value. Westland’s case on “diminished access” boiled down to evidence that westbound traffic onto or out of the property would have to travel a more circuitous route.

As a matter of law, this is not “substantially diminished” access of the kind that would constitute a compensable taking. See Fisher, 31 Fla. L. Weekly at D1904 (“[M]ere circuity of access is not compen-sable unless the remaining access to the property is ‘substantially diminished.’”). See, e.g., Rubano v. Dep’t of Transp., 656 So.2d 1264, 1269 n. 3 (Fla.1995) (“[Roadway abandonment, construction or realignment which results in inconvenience or mere circuity of access to abutting landowners does not give rise to a compensable injury.”) (internal quotation marks and quoted source omitted); State, Dep’t of Transp. v. S.W. Anderson, Inc., 744 So.2d 1098, 1102 (Fla. 1st DCA 1999) (reversing award of compensation because, at most, “one must now travel a less convenient route from the newly constructed SR 79 to Anderson’s property”); State, Dep’t of Transp. v. Weggies Banana Boat, 576 So.2d 722, 724 (Fla. 2d DCA 1990) (“[A]ny decrease in visibility or increased circuity of access ... suffered as a result of the overall design of the project is not compen-sable”). Compare Palm Beach County v. Tessler, 538 So.2d 846, 850 (Fla.1989) (affirming award of severance damages because property owners’ primary point of access to the remainder was rendered completely useless by construction of a retaining wall between their road and what was left of their property, diminishing the value of the remainder).

When Westland’s experts were asked to estimate severance damages, if any, apart from the median’s effects, they stated that they could not separate the portion which related to the actual taking of Westland’s property from the portion related to a change in traffic flow because of the new median. In short, Westland took the position that severance damages could not be evaluated, apart from the purported effects of the new median in Collins Road.

The verdict form asked the jury to determine whether the City’s use of land taken from Westland constituted “an integral and inseparable part of a single use to which the land taken and other adjoining land is put,” and whether access to West-land’s property had been “substantially diminished” as a result of the new median, and, in either event, permitted an award of severance damages. The trial court instructed the jury on the “general rule” stated in Capital Plaza and, over the City’s objection, on the supposed Lee County exception. The City’s objection was well taken.

In answering the specific questions the interrogatory verdict put to it, the jury “ruled” that the City’s use of land taken from Westland did constitute “an integral and inseparable part of a single use to which the land taken and other adjoining land is put,” and that access to Westland’s property had been or would be “substantially diminished” by the median, which the jury treated as part of the widening project for which Westland’s property was taken. Proceeding from this predicate, the jury awarded Westland severance damages of $685,000.

The jury’s preliminary “rulings,” like the award itself, fly in the face of our supreme court’s decision in Capital Plaza. See 397 So.2d at 683 (“We hold that landowners have no compensable interest in. traffic flow and that, in order to receive severance damages, any complained-of impairment must result directly from a taking.”). See also Dep’t of Transp. v. RFT P’ship, 906 So.2d 1161, 1168 (Fla. 2d DCA 2005) (reversing award of severance damages where “an isolated change [in grade] in an intersection on property that the DOT already owned” took place, because “the land taken ... does not fit within the [Lee County ] exception ... [and] any decrease in value to the property ... that might have resulted from a change in grade at the intersection is clearly caused by design issues independent of the small slice of property taken,” and concluding that “[u]nder the ruling in [Capital Plaza ], severance damages are not available for such a change”); Jacksonville Expressway Auth. v. Milford, 115 So.2d 778, 781-82 (Fla. 1st DCA 1959) (“The rule is well settled here that damages are not allowable to a property owner for a change in grade or other alteration in a street in which the public holds an existing easement for street purposes.... [W]e find no facts ... entitling the appellee-landowners to recover damages for the change in grade of the preexisting right of way [where condemnation of the subject property did not produce or combine to produce the results of which appellee complains]. The fact that incident to such a change in grade in the preexisting right of way there occurs a simultaneous or coincidental condemnation of property abutting the preexisting right of way does not vary the rule.”).

Westland took the position at trial that the two parts of the project — the median construction and the widening which necessitated the taking of Westland’s property — were inseparable. Each witness Westland called concerning severance damages testified that construction of the median was an integral component of a single project and that severance damages could not be evaluated or calculated without taking construction of the median into account. (The City countered that the two portions of the project were distinct, and that construction of the median was not dependent on the acquisition of the thirteen-foot-wide strip of Westland’s property.)

Westland thus made a tactical decision to proceed under the theory of the Lee County exception in its effort to obtain substantial severance damages on account of effects on traffic flow anticipated from construction of the new median. West-land’s answer brief acknowledges that its only bases for seeking severance damages were “the Lee County exception” and “substantial diminution in access.” Both theories rest on the asserted effects of the new median. The record shows not only that Westland could not prove severance damages apart from the median, but that it declined every opportunity to do so. It is not at liberty to abandon this position on appeal and has not, indeed, sought to do so. In the circumstances, no remand is necessary.

The final judgment is reversed, insofar as it awards $685,000 in severance damages and interest thereon.

WEBSTER and VAN NORTWICK, JJ., concur.

      . At trial, John Veasey, the City’s appraiser, valued the land taken from Parcel 106 at $77,680; the temporary construction easement in Parcel 706 at $26,250; and the permanent easement in Parcel 806 at $1,100.

      . Westland proved that taking the strip would require shortening the driveways onto Collins Road, decreasing by one or more the number of cars that could wait in line for the “drive-thru window.” Westland did not try to prove this would actually affect Burger King’s sales.

      .The new median would require westbound travelers on Collins Road to make a left turn onto Blanding Boulevard southbound, then turn right immediately, or proceed about 900 feet along the new median and make a U-turn, to reach the Burger King. Travelers leaving westbound, unable to turn left onto Collins Road, could either turn right onto Collins Road and make a U-turn, or turn right onto Blanding Boulevard southbound, make a U-turn, then turn left onto Collins Road westbound at the intersection of Blanding Boulevard and Collins Road.

      . In effect, these instructions gave the jury legal questions to decide preliminary to and as a condition for fact finding. But see Palm Beach County v. Tessler, 538 So.2d 846, 850 (Fla.1989) ("[I]n an inverse condemnation proceeding ..., the trial judge makes both findings of fact and findings of law. As a fact finder, the judge resolves all conflicts in the evidence. Based upon the facts as so determined, the judge then decides as a matter of law whether the landowner has incurred a substantial loss of access by reason of the governmental activity.”); Dep’t of Transp. v. Fisher, 31 Fla. L. Weekly D1904, D1904, 2006 WL 1933416 (Fla. 2d DCA July 14, 2006). See also § 73.071(3)(b), Fla. Stat. (2005) ("The jury shall -determine solely the amount of compensation to be paid, which compensation shall include: .... Where less than the entire property is [taken], any damages to the remainder caused by the taking[.]”) (emphasis supplied).

      . The supreme court has made unmistakably clear that no such exception is available where, as here, severance damages are claimed on the basis of a traffic median constructed on property the City already owned. We need not, therefore, decide whether the Second District's discussion in Lee County of an exception to the ban on severance damages for effects attributable to works on property not taken from the landowner (and its subsequent application of the Lee County exception in Taylor v. State, Department of Transportation, 701 So.2d 610, 611-12 (Fla. 2d DCA 1997)), should be adopted as the law of this district in some other circumstance.


author: PER CURIAM.

text:
    Kelvin FRAZIER, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-3895.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2010.
    Kelvin Frazier, pro se, Petitioner.
    No appearance for Respondent.
   ORDER IMPOSING SANCTIONS

PER CURIAM.

Kelvin Frazier petitioned this court for a writ of mandamus, asking this court to compel the Circuit Court for Santa Rosa County to file and take action on a habeas corpus petition he filed there. Previously, a judge of that court had entered an order prohibiting Frazier from appearing in civil actions in that court unless he paid any applicable filing fee and was represented by counsel. Because that sanction order was not successfully challenged by Frazier, the clerk properly acted in accordance with it, and we therefore denied the petition. Frazier v. McNeil, 23 So.3d 714 (Fla. 1st DCA 2009).

Further, on this court’s own motion, a show cause order issued to petitioner as to why a similar sanction should not be imposed against him by this court. Since 2003, Frazier has filed 17 appeals and petitions, obtaining relief only on a filing fee issue in Frazier v. McDonough, 950 So.2d 515 (Fla. 1st DCA 2007). His other cases were either dismissed for failure to comply with the Florida Rules of Appellate Procedure or orders of this court, or were found to be without merit. Having considered his response to the show cause order, we elect to impose sanctions against petitioner. See Lee v. Fla. Dep’t of Corr., 873 So.2d 489 (Fla. 1st DCA 2004); Attwood v. Eighth Circuit Court, 667 So.2d 356 (Fla. 1st DCA 1995). It is hereby ordered that Kelvin Frazier shall secure the filing of a notice of appearance by a member in good standing of The Florida Bar in any active case now pending before this court in which he appears as appellant or petitioner within 10 days of date of this order, failing which such cases shall be dismissed. Further, the clerk of this court is directed to accept no further pro se filings from Frazier; if received, they shall be returned to him without filing and with a reference to this opinion.

IT IS SO ORDERED.

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Brian M. KOCH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5875.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2010.
    Brian M. Koch, pro se, Petitioner.

      Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Brian M. Koch is hereby afforded a belated appeal from judgment and sentence in Duval County case number 2007-CF-013276-AXXX-MA. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the lower tribunal who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The lower tribunal is directed to appoint counsel for Mr. Koch in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

HAWKES, C.J., ROBERTS and CLARK, JJ., concur.


author: HANKINSON, JAMES C., Associate Judge. BENTON, J.,

text:
    Jessie James ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6025.
    District Court of Appeal of Florida, First District.
    April 7, 2010.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   HANKINSON, JAMES C., Associate Judge.

This appeal concerns the denial of a motion to suppress all evidence obtained following the search and seizure of illegal drugs. Defendant argues the search and seizure was an intrusive government act which violated his Fourth Amendment rights. We disagree. Because the trial court’s factual findings that the search was performed by an individual acting in a private capacity are supported by competent substantial evidence, we find no Fourth Amendment violation and affirm the trial court’s decision.

FACTS

Defendant — Jessie James Armstrong— was charged by information in two separate cases with possession of marijuana with intent to sell. The first case arose when the postal service mistakenly delivered a package containing marijuana to the residence of Joseph Armstrong, an agent with the F.B.I. A few days later a second, similar package was delivered to Agent Armstrong’s address. He notified the sheriffs office and a search warrant was obtained for the second package. This package contained a bundle of marijuana similar to that found in the first package and resulted in the second case.

Prior to the trial in either case, defendant moved to dismiss all statements and evidence stemming from Armstrong’s seizure of the original package. Defendant claimed Armstrong had opened the package in his official capacity as an agent of the state, thereby violating the Fourth Amendment protection against unreasonable search and seizure. Defendant argued that all evidence flowing from the search of the original package — including the discovery of marijuana in the second package — was suppressible as fruit of the poisonous tree.

A suppression hearing was held during which Agent Armstrong testified:

• He received a package addressed to “J. Armstrong.” The address listed on the package was similar to his personal address; the house number differed by only three digits and the street number by only one digit.
• Since he was unsure if the package was intended for him, he went to the address listed on the package, but no one was there.
• He returned home and opened the outer package, exposing a square bundle covered in plastic wrap and newspaper.
• Agent Armstrong worked on the “Joint Terrorism Task Force.” Due to the nature of his work, Armstrong had some concerns that the package might contain a bomb or Anthrax. Because it was the holiday season, he also thought that the package might be a gift to him.
• In the course of his other duties, Agent Armstrong carried the package to work the following day. On the way, he wrote down the license numbers of the vehicles at the listed address.
• At work, he ran the package through an x-ray machine, which detected no metal objects.
• Agent Armstrong mentioned the package to Sheriffs Deputy Joseph Bran-naman, with whom he worked on the task force. Brannaman suggested he should “open it up and see what it is, what’s the big dealt?]”
• Agent Armstrong decided to open the package. Since Brannaman had a pen knife, he allowed Brannaman to cut through the plastic wrap and newspaper, at which time the officers detected the smell of marijuana.
• Agent Armstrong then ran a check on the tag numbers and turned the marijuana over to the authorities.

Given this testimony, the trial court found Agent Armstrong was acting in his capacity as a private citizen, not a government agent, when he opened the package. The trial court emphasized that at the time Armstrong opened the package, he was its actual recipient and feared he might be the victim of a crime. The trial court found any interaction between Armstrong and other law enforcement officers was in his private capacity as a concerned citizen, not in his official capacity as an F.B.I. agent. Since it found there was no government action, the trial court concluded there was no Fourth Amendment violation and denied the motion to suppress, which it found dispositive as to both cases.

On appeal, defendant raises two arguments. First, he claims Agent Armstrong was acting in his capacity as a government agent at the time he searched the package misdelivered to his address. Since the search was not justified under any of the exceptions to the warrant requirement, defendant concludes it violated his Fourth Amendment rights. Second, defendant claims that even if Armstrong’s actions could be construed as those of a private citizen, the search became a government action due to the active participation of Deputy Brannaman. For the reasons that follow, we find neither argument persuasive.

ANALYSIS

Review of a motion to suppress presents a mixed question of law and fact. See State v. Leonard, 764 So.2d 663, 664 (Fla. 1st DCA 2000). We must examine the trial court’s factual findings to ensure they are supported by competent substantial evidence and examine its application of the law to the facts de novo. See Williams v. State, 721 So.2d 1192, 1193 (Fla. 1st DCA 1998); Phuagnong v. State, 714 So.2d 527, 529 (Fla. 1st DCA 1998). Here, since neither party disputes the facts essential to the case, we need only review the trial court’s application of the law to the facts. See State v. Furr, 723 So.2d 842, 844 (Fla. 1st DCA 1998). In particular, we must determine whether the search and seizure of the marijuana in the original package was accomplished by a government or a private actor.

The Fourth Amendment to the United States Constitution and Article I, section 12 of the Florida Constitution guarantee the right to be free from “unreasonable searches and seizures.” The opinions of the United States Supreme Court must be followed on all search and seizure issues, regardless of whether the claim of an illegal search is based on the Florida or United States Constitution. See Green v. State, 824 So.2d 311, 313 (Fla. 1st DCA 2002).

For evidence to be excluded pursuant to the Fourth Amendment, the moving party must demonstrate the government has infringed upon his reasonable expectation of privacy. See State v. Butler, 1 So.3d 242, 246-47 (Fla. 1st DCA 2008). Importantly, the protection against unreasonable searches and seizures applies only to cases involving governmental action; it does not apply when the search or seizure was conducted by a private individual. See Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (stating the Fourth Amendment can be invoked only when a person can claim that a “legitimate expectation of privacy [ ] has been invaded by government action”); Pomerantz v. State, 372 So.2d 104, 108 (Fla. 3d DCA 1979) (stating neither the state nor federal constitution “affords any protection against purely private searches and seizures no matter how unreasonable”). The party objecting to the search or seizure has the burden to establish government involvement by a preponderance of the evidence. See Treadway v. State, 534 So.2d 825, 827 (Fla. 4th DCA 1988).

Here, defendant argues Armstrong was acting in his capacity as an F.B.I. agent at the time of the search and seizure. Neither party has cited the Court to any binding precedent in the State of Florida that directly controls the issue presented. One court has used a two-pronged analysis in deciding whether an off-duty law enforcement officer is acting in his official capacity or as a private citizen. See U.S. v. Couch, 378 F.Supp.2d 50, 55 (N.D.N.Y.2005). The court in Couch set out its analysis:

First, we must examine the capacity in which the off-duty police officer was functioning when the officer initially confronted the situation and second, we must examine the manner in which he or she conducted himself or herself from that point forward.

378 F.Supp.2d at 55, quoting State v. Andrews, 33 Conn.App. 590, 637 A.2d 787, 790-91 (1994) (emphasis added). We find this to be a logical method of analyzing the issue presented.

The first prong of the analysis is self-explanatory. When considering the second prong of the analysis (i.e. the manner in which the off-duty officer conducted himself), a court must determine whether the off-duty officer’s actions fell “outside [the] sphere of legitimate private action.” Commonwealth v. Leone, 386 Mass. 329, 435 N.E.2d 1036, 1041 (1982). Crucial to this consideration is the purpose behind the off-duty officer’s decision to conduct the search. If the search is motivated by a legitimate private purpose, it retains its private character; if it is motivated solely by a governmental purpose, it becomes state action. Id. (finding that when an off-duty police officer’s “conduct is justified by his legitimate private duties [as a security guard], it should not be treated as lawless, or ‘unreasonable,’ search and seizure”).

For example, in State v. Walker, 236 Neb. 155, 459 N.W.2d 527, 532-33 (1990), an off-duty police officer was found to have conducted a private search when, functioning in his capacity as a landlord, he entered a tenant’s house. The court stated that although the officer apparently “was aware of suspected drug activity at the house,” his actions were consistent with his stated purpose of entering the house solely to discuss tenancy issues. Id. at 533.

Likewise, in State v. Cole, 315 Wis.2d 75, 762 N.W.2d 711, 716-17 (2008), a letter from a defendant instructing family members to prevent a witness from testifying at trial was misaddressed and delivered to the home of a sheriffs officer. Believing the letter was intended for her, the officer opened and read it. Id. at 716. Upon realizing that the letter was not intended for her, she returned to work, entered the defendant’s name into a database, and discovered he had a court date scheduled. Id. The officer then contacted the district attorney prosecuting the case and gave that attorney the letter. Id. The court found the opening of the letter and all subsequent actions to be private activity, emphasizing the purpose behind the officer’s actions:

[t]he activity she was engaged in when she opened [defendant’s] letter — opening mail that had been delivered to her home — was that of a private citizen. Even given our assumption that she saw the front of the envelope before she opened it and so knew it was not intended for her, she did not know [the sender or listed recipient] or have reason to suspect that she might discover criminal activity by opening the letter.

Id. at 717.

From the foregoing, it may be inferred that so long as there is a reasonable private purpose for the search conducted by the off-duty officer, the search will not violate the Fourth Amendment. Consequently, to show that Armstrong was acting in his capacity as a F.B.I. agent when searching the original package, defendant had to establish by a preponderance of the evidence that either: (1) Armstrong was acting in his official capacity when he received the package; or (2) Armstrong’s actions after receiving the package demonstrated a solely official purpose.

Defendant has failed to show that Armstrong’s search was a governmental act. Initially, it is undisputed that Armstrong was acting in his private capacity when he received the package. It was delivered by the postal service to his home. Indeed, defendant even admits that had Armstrong opened the package upon first receiving it, without taking further action, any search would have been private in character.

Defendant claims Armstrong’s actions in writing down tag numbers and x-raying the package are usually performed by law enforcement officers conducting an investigation. While this may be true, defendant overlooks the dual private purpose for Armstrong’s actions, namely to ensure his safety in the event that the package contained a bomb or Anthrax.

Agent Armstrong testified that upon opening the exterior of the package, he became concerned it might contain a dangerous substance, a concern only heightened due to the fact that, as an F.B.I. agent, he was a likely target for threats. Accordingly, he wrote down the tag numbers of the vehicles in front of the listed address and took the package to the nearest F.B.I. office, where it was scanned and opened in the presence of a law enforcement officer. Given the circumstances, and considering Armstrong’s occupation, such conduct was not surprising or extraordinary. Any reasonable individual would have likely acted in the same manner if placed in the same circumstances.

Because the actions taken by Agent Armstrong after receiving the package had a legitimate private purpose, we conclude Armstrong’s involvement in the search was in his private capacity. Defendant also argues various actions taken by Agent Armstrong after the marijuana was discovered. However, these actions are irrelevant as to whether Armstrong was acting as a law enforcement officer at the time the package was opened. Consequently, Armstrong’s actions did not infringe on defendant’s Fourth Amendment rights.

Defendant also claims the motion to suppress should have been granted because Deputy Brannaman’s participation made the search governmental in nature. Defendant emphasizes that Brannaman actively participated in the search by using his knife to open the inner wrappings of the package.

Initially, we find that this argument was not raised in the proceedings below, and therefore is not preserved for our review. See § 924.051(3), Fla. Stat. (2008); Morrison v. State, 818 So.2d 432, 446 (Fla.2002) (finding that because a defendant “did not argue the point he now raises below [in support of his motion to suppress], he is foreclosed from raising that argument” on appeal).

Turning to the merits, “[a] search by a private person becomes a government search if the government ‘coerces, dominates, or directs the actions of a private person’ conducting the search.” U.S. v. Souza, 223 F.3d 1197, 1201 (10th Cir.2000), quoting Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir.1989). In other words, the private search becomes a governmental act if, due to government participation, the private actor becomes an instrumentality or agent of the state. The test for determining whether a private actor has become a state agent is two-fold: (1) whether the government was aware of ■and/or acquiesced in the search; and (2) whether the individual’s purpose in conducting the search was solely to assist the police. See Butler, 1 So.3d at 246; Treadway, 534 So.2d at 827. Importantly, when a dual purpose for the search exists such that the private actor is also pursuing his own ends, the search generally retains its private character. See Glasser v. State, 737 So.2d 597, 598-99 (Fla. 4th DCA 1999).

Here, as previously discussed, Agent Armstrong stated his decision to involve the authorities was to ensure it was safe to open the package. This was a legitimate private purpose separate and apart from any benefit to the government. Therefore, it cannot be said that Armstrong’s interaction with Brannaman at the time the package was open meant he was operating as an agent or instrumentality of the state.

Moreover, Brannaman’s involvement in the search was minimal. Armstrong testified he mentioned the package to Branna-man, who stated “open it up and see what it is, what’s the big deal[?]” Armstrong also testified that when he decided to open the internal contents of the package, he allowed Brannaman to cut through the plastic and newspaper simply because Brannaman was carrying a pen knife. It cannot be inferred from this testimony that Brannaman coerced Armstrong into opening the inner package; Armstrong’s testimony indicates he alone made this decision. It seems Brannaman became involved simply because he was the closest individual with a pen knife.

Cases involving similar circumstances clarify that such minimal involvement by a law enforcement officer does not transform a private search into a governmental action, particularly when there is a private purpose for the search. See U.S. v. Leffall, 82 F.3d 343, 349 (10th Cir.1996) (finding that having a police officer serve as a witness did not affect the private nature of a search, as there was a legitimate private purpose for the search and the officer did nothing to encourage it); U.S. v. Gomez, 614 F.2d 643, 644-45 (9th Cir.1979) (finding a police officer’s “slight participation” in a baggage search did not affect its private character, despite the fact that the officer “tapped or kicked” the lock of the bag to release it after an airline employee had difficulty opening it). Accordingly, we do not find that Branna-man’s participation here changed the private nature of the search.

CONCLUSION

In conclusion, we find that there is competent substantial evidence upon which the trial court could have found that the defense failed to prove that Agent Armstrong was acting in his law enforcement capacity when he opened the original package. Therefore, the search fell outside the parameters of the Fourth Amendment and defendant’s motion to suppress was properly denied. For the foregoing reasons, the trial court’s order is AFFIRMED.

HAWKES, C.J., concurs; BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

The only real issue at the suppression hearing was whether, as the defense contended, the initial search was state (governmental) action. The prosecution maintained that the initial search the law enforcement officers conducted should be deemed to haye been “effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (Blackmun, J., dissenting)).

The prosecution did not, however, make any argument that probable cause supported, or that exigent circumstances justified, the warrantless search of a parcel that had been placed in the mail addressed to the defendant. Nor would the evidence adduced at the suppression hearing have supported a finding of probable cause for the initial search or of exigent circumstances making a warrantless search lawful.

As the majority opinion acknowledges and as then Judge Pariente explained so felicitously, it is clear that the Fourth Amendment to the United States Constitution and Article I, section 12 of the Florida Constitution recognize as reasonable the expectation of privacy in mailed packages:

Florida’s constitutional right to be free from unreasonable searches and seizures, article I, section 12 of the Florida Constitution, requires us to interpret this right in conformity with the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Fla. Const, art. I, § 12. The Fourth Amendment, in protecting persons from unreasonable government intrusions into their legitimate expectations of privacy, extends to the contents of personal packages. See United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110, 120-21 (1983); Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980); United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970); Ex parte Jackson, 96 U.S. 727, 6 Otto 727, 24 L.Ed. 877 (1877). In Ex parte Jackson, the Court established that sealed packages in the mail cannot be opened without a warrant:
Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household....
96 U.S. at 733.
A law enforcement officer’s authority to possess a package is distinct from his authority to examine its contents. See Place; Walter; Van Leeuwen. In Place, the Supreme Court reiterated this distinction stating:
Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.
462 U.S. at 701, 103 S.Ct. at 2641.
A person’s Federal Express package is entitled to no less protection than letters and packages sent through the United States Postal Service. Accordingly, in each of the reported cases addressing the issue of the propriety of the search of a lawfully seized Federal Express package based on a dog’s alert to the package, the law enforcement officer involved obtained a search warrant before searching the contents of the package. See, e.g., U.S. v. Smith, 34 F.3d 514 (7th Cir.1994); U.S. v. West, 25 F.3d 1052 (6th Cir.1994); U.S. v. Moore, 22 F.3d 241 (10th Cir.1994), cert. denied, [513] U.S. [891], 115 S.Ct. 238, 130 L.Ed.2d 161 (1994); U.S. v. Hall, 20 F.3d 1084 (10th Cir.1994).

Daniels v. Cochran, 654 So.2d 609, 612 (Fla. 4th DCA 1995). We are therefore under a constitutional duty to review the trial court’s conclusion that the initial search was not governmental action. See Green v. State, 824 So.2d 311, 314 (Fla. 1st DCA 2002).

“ ‘In reviewing search and seizure decisions, Florida courts and federal courts alike must apply different standards of review, depending on the nature of the questions presented. Aspects or components of the trial court’s decision resolving legal questions are subject to de novo review, while factual decisions by the trial court are entitled to deference commensurate with the trial judge’s superior vantage point for resolving factual disputes.’ State v. Setzler, 667 So.2d 343, 344-45 (Fla. 1st DCA 1995). See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598, 605 (Fla.2001); State v. Eldridge, 814 So.2d 1138, 1140 (Fla. 1st DCA 2002).... Id.

Reviewing the findings and conclusions in the present case persuades me that the search (although not the seizure) amounted to governmental, and not merely to private, action. After all, the “plain smell” and search revealing that the first misde-livered parcel contained marijuana took place in an FBI office after the parcel had been examined with the help of an FBI x-ray machine, employed to ascertain whether law enforcement personnel could safely search the parcel.

Probable cause for the concededly governmental (and, indeed, warranted) search of the second parcel depended on the results of the search of the first misdelivered package and so was “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The taint of the initial illegality had not dissipated, and nobody argues that it had.

On FBI premises, at the direction or at least with the cooperation of an on-duty FBI officer, an on-duty Florida deputy sheriff used a pocket knife to cut away — or through — enough packaging to reveal the first parcel’s contents. In my view, this collaboration between state and federal law enforcement officers cannot fairly be described as a “purely private search[].” Pomerantz v. State, 372 So.2d 104, 108 (Fla. 3d DCA 1979). I respectfully dissent.

      . There is no dispute that defendant had a reasonable expectation of privacy in the original package, which listed his last name and address. See Daniels v. Cochran, 654 So.2d 609, 612 (Fla. 4th DCA 1995) (finding sealed packages in the mail cannot be opened without a warrant). The sole question on appeal is whether this privacy interest was invaded by a government actor.

      . This test is similar to, yet distinguishable from, the test used to ascertain whether private actors are conducting the search as in-strumentalities or agents of the state. Such situations arise when the government participates and/or encourages a search conducted by a private actor. See Treadway, 534 So.2d at 827. To determine whether the private individual is acting as an agent of the state, courts look to (1) whether the government was aware of and acquiesced in the conduct; and (2) whether the individual's purpose in conducting the search was solely to assist the police. Id.; see also State v. Moninger, 957 So.2d 2, 4-5 (Fla. 2d DCA 2007). Here, defendant's argument is not that the state prompted or encouraged Armstrong into searching the package, but that Armstrong— acting in his official capacity as an F.B.I. agent — searched the package of his own accord. Consequently, the test to determine whether an off-duty law enforcement officer acted in his/her official capacity seems more applicable than the test to determine whether a private individual was conscripted into serving as an instrumentality or agent of the state. Cf. State v. Iaccarino, 767 So.2d 470, 475 (Fla. 2d DCA 2000).

      . We need not address whether Armstrong's actions in running the tag numbers transformed the character of the search. The trial court clearly found that Armstrong did not run the tag numbers until after the package had been opened and the marijuana had been found. Even if Armstrong had investigated the tag numbers prior to discovering the marijuana, the search may have still retained its private character. See Cole, 762 N.W.2d at 716-17 (finding solely private action when a letter regarding witness tampering was mis-delivered to an off-duty officer, despite the fact that she ran a background check on the sender before releasing it to the authorities).

      . It is a violation of federal law to open a package placed in the mail "before it has been delivered to the person to whom it was directed.” 18 U.S.C. § 1702 (2007). The federal statute provides:

        Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both.

        Id. (Emphasis supplied.)

      . According to the majority opinion, the "trial court emphasized that at the time Armstrong opened the package, he ... feared he might be the victim of a crime.” Ante p. 592. An apparent purpose of x-raying the parcel was to determine whether it contained a bomb. Anthrax was also mentioned. Since sending a bomb or anthrax spores through the mail is illegal, these law enforcement officers had begun investigating possible criminal activity even before the incision and search that uncovered the evidence.


text:
    Desmond E. McGAHEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1799.
    District Court of Appeal of Florida, First District.
    May 3, 2010.
    Desmond E. McGahee, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

HAWKES, C.J., VAN NORTWICK and MARSTILLER, JJ., concur.


author: DAVIS, J. THOMAS, J., KAHN, J.,

text:
    Simeon SALINAS, Appellant, v. C.A.T. CONCRETE, LLC and Claims Center, Appellees.
    No. 1D09-4208.
    District Court of Appeal of Florida, First District.
    May 21, 2010.
    Mario R. Arango of De Varona & Aran-go, Miami; Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   DAVIS, J.

In this workers’ compensation appeal, Claimant argues that the Judge of Compensation Claims (“JCC”) erred in rejecting the parties’ pretrial stipulation regarding Claimant’s average weekly wage (“AWW”) and in refusing to accept the medical opinions of Claimant’s unauthorized treating physician. We affirm.

On August 9, 2007, Claimant suffered a compensable injury while working as a carpenter for the Employer/Carrier (“E/ C”). Following the injury, Claimant filed petitions for benefits requesting, in relevant part, temporary partial disability (“TPD”) benefits beginning August 9, 2007, and continuing. Prior to the final hearing, Claimant and the E/C stipulated to an AWW of $600. However, the JCC denied the TPD claim on the authority of our decision in Fast Tract Framing, Inc. v. Caraballo, 994 So.2d 355 (Fla. 1st DCA 2008). The JCC concluded that because Claimant did not report his income to the Internal Revenue Service, his unreported wages could not serve as the basis for calculating his AWW. This appeal followed.

Although the parties stipulated to Claimant’s AWW, a JCC is not required to follow a stipulation that is refuted by competent, substantial evidence. See Farnam v. U.S. Sugar Corp., 9 So.3d 41, 42 (Fla. 1st DCA 2009) (holding that the JCC did not err in rejecting the parties’ stipulation because competent, substantial evidence supported a contrary finding); Sapp v. Berman Bros., 884 So.2d 1080, 1082 (Fla. 1st DCA 2004) (noting that a stipulation should not be ignored without a showing of fraud, misrepresentation, overreaching, or some other basis that would void the agreement and that a JCC may reject a stipulation that is not supported by competent, substantial evidence). Here, it was Claimant’s own testimony that refuted the parties’ stipulation. Claimant admitted during the hearing that he was an illegal immigrant who had never filed any federal income taxes. As we have previously held, a claimant’s AWW cannot be based on income that has not been reported for federal income tax purposes. See Caraballo, 994 So.2d at 358. While Claimant argues that he should have been provided with an opportunity to be heard regarding the JCC’s rejection of the AWW stipulation, he has failed to show how he could have cured the reporting defect. As such, Claimant was not unfairly prejudiced by the JCC’s rejection of the stipulation. We, therefore, affirm as to this first issue. We affirm as to the second issue as well given that the argument was not preserved for appeal.

AFFIRMED.

THOMAS, J., concurs with opinion; KAHN, J., dissents with opinion.

THOMAS, J.,

concurring.

I concur, but write to respectfully address the dissenting opinion, which states that “no suggestion has been made that the rights or interests of any third party was affected by the stipulation.” That is not the case here, where the legislature has defined what constitutes “wages,” and thus, what can form the basis for a determination of Average Weekly Wage, and ultimately determine an award of temporary partial disability. Here, the “third party” involved is in fact the Legislature, which defines the public policy of the state. Although stipulations that resolve personal factual disputes between parties may be appropriate and therefore binding, here, the Judge of Compensation Claims heard undisputed evidence that Appellant failed to report his wages as taxable income. Thus, his income could not constitute wages under Florida Statutes because it was not reported “for federal income tax purposes.” § 440.02(28), Fla. Stat.; Fast Tract Framing, 994 So.2d 355, 358 (Fla. 1st DCA 2008). As noted by Appellee and the majority opinion, there is no evidence or claim that Appellant had ever reported his income. In fact, Appellant stated below that he had not filed a tax return in ten years.

As we noted in Fast Tract Framing, the unambiguous text of section 440.02(28) requires that a claimant, not his employer, report wages to the Internal Revenue Service. 994 So.2d at 357-58. Thus, the question here is whether parties can decide between themselves that the legislature’s definition will be rendered void and bind a judge to this agreement.

Gunn Plumbing, Inc. v. Dania Bank, cited by the dissenting opinion, provides a useful comparison. 252 So.2d 1 (Fla.1971). There, the stipulation involved the usury statute, and the supreme court stated that usury was “purely a personal defense created by statute for the protection of borrowers and, therefore, any borrower may waive his right to claim the benefit of such statute.” 252 So.2d at 4. The court’s statement that a stipulation which involves “a matter which is. appropriate to stipulate [to] is binding upon the parties and upon the Court” may be contrasted with this case, where a stipulation is not appropriate. 252 So.2d at 4 (emphasis added).

The legislature’s requirement that income must be reported for federal income tax purposes to qualify as wages is a public policy obviously intended to discourage tax evasion and inaccurate calculations of employee earnings. In addition, the law seeks to ensure accurate calculation for payment of workers’ compensation insurance premiums, which are based on the employer’s total payroll. This statute affects not just the parties, but the entire workers’ compensation statutory scheme, as inflated and inaccurate wage calculations affect employer premiums. The statute at issue here is quantitatively different that the statute at issue in Gunn Plumbing and, for that matter, the waiver of any objection to the admission of polygraph evidence in Davis v. State, 520 So.2d 572 (Fla.1988), which is also cited by the dissent. The stipulation at issue in Friendly Homes of the South, Inc., 932 So.2d 634 (Fla. 2d DCA 2006), belongs in the same category of stipulations as in Davis and Gunn Plumbing; to wit: personal and “appropriate” matters of stipulation that involve rights and responsibilities personal to the parties, not matters of public policy in conflict with statutory law. In Friendly Homes, for example, the Second District noted that the legislature had authorized parties to stipulate to arbitration. 932 So.2d at 637. By contrast, the legislature has not authorized parties to waive the requirement that employees must report their wages “for federal income tax purposes” in order to qualify as “wages” under section 440.02(28), Florida Statutes.

Under section 440.02(28), Florida Statutes, Appellant had the legal duty to report his income for federal income tax purposes in order to establish that he earned “wages” which could form the basis of an average weekly wage and an award of temporary partial disability. Appellant could not evade that duty based on a private agreement with another party in a judicial proceeding, and certainly cannot bind a court to enforce such an agreement.

It is unfortunate that Appellee stipulated to a matter that was not appropriate and not authorized in law; however, it was Appellant’s lawful duty to report his wages for federal tax purposes, as required by the Legislature. Because Appellant has not claimed that he reported his wages “for federal income tax purposes,” but only that he could have, had Appellee not offered the stipulation, I concur in the holding here.

KAHN, J.,

dissenting.

Because I conclude that the majority decision here, although entered in the utmost good faith, portends a trend that would upset decades of settled Florida law concerning the ability of parties to litigation to control issues presented, I respectfully dissent. This workers’ compensation matter does not turn upon any application of our decision in Fast Tract Framing, Inc. v. Caraballo, 994 So.2d 355 (Fla. 1st DCA 2008). Instead, the case should be resolved by resort to basic tenets of due process and settled Florida law.

PROCEDURAL BACKGROUND

In a pre-trial stipulation duly filed with the Judge of Compensation Claims (JCC), the parties agreed that Salinas’ average weekly wage (AWW) would be $600.00. Appellee, the employer, never moved for relief from that stipulation, nor put on any evidence at all to support a finding sufficient to have afforded such relief. Claimant testified during the course of the final hearing that he has no social security number and has never filed a federal income tax return while living in the United States. Aso, claimant acknowledged that he would be classified, depending upon one’s particular view, as an undocumented worker or an illegal alien.

In ruling upon claimant’s petition for temporary partial disability (TPD) benefits, the JCC viewed the medical testimony as supportive of that claim. Nonetheless, the JCC denied the claim, finding, sua sponte, that because claimant was an illegal immigrant who did not report his income to the Internal Revenue Service (IRS), claimant was “precluded from receiving TPD benefits for this period, as his non-reported wages [could] not be the basis for calculating the AWW.” From that denial of benefits claimant takes this appeal, arguing the parties entered into a valid pretrial stipulation concerning AWW, no defenses had ever been raised on the AWW issue, and claimant had no opportunity to be heard on the issue.

ANALYSIS

Claimant, having negotiated a pretrial stipulation, removing certain elements of the claim from consideration by the JCC, found himself subjected to a deprivation of his fundamental right to due process. The notion that only those matters actually presented to a judicial officer are subject to adjudication is not foreign to workers’ compensation matters:

Due process concerns preclude a ruling on matters which have not been placed at issue, since the parties are entitled to notice so that they may fairly present their case. Florida Power Corp. v. Hamilton, 617 So.2d 333, 334 (Fla. 1st DCA 1993). An order that is not in accord with the understanding with which the workers’ compensation hearing was undertaken and participated in is a denial of due process and must be reversed. Munroe Memorial Hospital v. Thompson, 388 So.2d 1338 (Fla. 1st DCA 1980).

Southeast Recycling v. Cottongim, 639 So.2d 155, 157 (Fla. 1st DCA 1994); see also Reynolds v. Skagfield Corp., 887 So.2d 434, 435 (Fla. 1st DCA 2004) (holding that a JCC improperly determines compensability of a condition when the issue is not before the JCC); Commercial Carrier Corp. v. LaPointe, 723 So.2d 912, 914 (Fla. 1st DCA 1999) (holding that JCC erred in awarding benefits not listed as being at issue in pretrial stipulation); Holiday Inn v. Sallee, 496 So.2d 227, 229 (Fla. 1st DCA 1986) (holding that JCC rules only on particular issues presented by parties for resolution). Accordingly, because the JCC reached out to an issue not properly before him, the order should be reversed with directions that the TPD benefits be awarded.

One would struggle to envision a concept more fundamental to our legal system than that of due process; this case, however, does in fact raise another, and somewhat related, bedrock issue. That issue concerns the right of parties to litigation to enter into binding stipulations concerning the issues to be presented to a tribunal. Before detailing the case law on this point, I would note that the cases cited by the majority are not in conflict with the proposition just stated.

The first case relied upon by the majority, Farnam v. U.S. Sugar Corp., does indeed hold that a JCC did not err in rejecting a stipulation where competent substantial evidence supported a contrary finding. 9 So.3d 41 (Fla. 1st DCA 2009). Notably absent from this decision, however, is any indication of the procedural posture of that case. For instance, did one or both of the parties seek relief from the stipulation? Did developments at trial unfold in such a way so as to amend the stipulation and place at issue a matter that had been preliminarily dealt with by the stipulation? The Famam opinion contains no discussion of these issues, nor any analysis of the basis for rejecting a stipulation. Sapp v. Berman Bros. is in-apposite to the present matter because that case applied the well-known rule that stipulations may be set aside upon a showing of fraud, overreaching, misrepresentation, or some other basis that would void the agreement. 884 So.2d 1080, 1082 (Fla. 1st DCA 2004). These situations do not appear in the present case, and no party to this litigation has ever sought to avoid the agreement. Of course, even in those limited cases where a JCC may countenance abrogation of the stipulation, the parties must be afforded notice and opportunity to present evidence and argument concerning such abrogation. See Jacobs v. Volker Stevin Constr., 609 So.2d 132, 133 (Fla. 1st DCA 1992).

Decades ago, our supreme court decided the case that stated the durable rule concerning pretrial stipulations: “A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court.” Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla.1971). The rule affording a high status to stipulations is not merely a procedural nicety. Instead, this rule memorializes one of the cornerstones of our method of dispute resolution. Our system, commonly referred to, although now with some apparent disdain, as the adversary system, posits that learned opponents, standing upon an equal procedural footing, will make their best professional efforts to resolve a matter favorably for their respective clients. These efforts involve not only citations to law, and presentation of evidence; they also encompass pretrial strategy, including negotiations of pretrial stipulations. Indeed, Florida courts will even uphold stipulations where the matters under stipulation would not necessarily have been available upon a strict reading of law, and in the absence of the stipulation. For instance, in Davis v. State, our supreme court observed that polygraph evidence, long ruled unreliable and inadmissible in our courts, may be admitted in a criminal case when the parties had stipulated to admission of such test results. 520 So.2d 572, 574 (Fla.1988). The supreme court in Davis viewed a stipulation to admit polygraph evidence as a “waiver by both parties of evidentiary objections as to the lack of scientific reliability.” Id. In Friendly Homes of the South. Inc., v. Fontice, the court observed that a post-filing stipulation to arbitrate, duly executed by the parties, would control even where the arbitration provision in the underlying contract at dispute in the matter may well have been ineffective. 932 So.2d 634, 637 (Fla. 2d DCA 2006).

The stipulation here removed a matter, otherwise at dispute, from consideration by the JCC. The matter was resolved between the parties, and no suggestion has been made that the rights or interests of any third party was affected by the stipulation. Moreover, we do not know, and the record does not indicate, what motivations the employer had here in entering the stipulation as to AWW. As judges, we simply do not have enough knowledge to second guess or question the motivations of a party to a stipulation, unless the prerequisite showing of fraud, overreaching or likewise, has been raised and supported by evidence. For all I know, as someone who has merely read the briefs and record, the employer here may have entered the stipulation to avoid any inquiry or questions into whether the employer itself followed the proper IRS procedures with regard to reporting income and withholding taxes. On the other hand, the employer here may have withheld and reported claimant’s wages in accordance with federal law. Indeed, that Mr. Salinas failed to file an income tax return does not definitively prove his wages were not reported to the IRS. Had the issue been actually set for consideration by the JCC, evidence may have been adduced that the employer properly withheld and reported wages. I do not make these observations as any sort of prediction as to the true facts. I simply note that, when entering the pretrial stipulation, the employer here must have had reasons that seemed sound from the perspective of both litigation tactics and business. As a judge, I don’t feel empowered to squash such a decision, made between private litigants, and not involving third-party rights.

The stipulation here was quite clear, was not ambiguous, and was not in want of clarification or qualification. See Yeakle v. Yeakle, 12 So.3d 884, 886 (Fla. 4th DCA 2009) (relying upon Steiner v. Steiner, 638 So.2d 174, 175 (Fla. 1st DCA 1994), to observe a court must not disturb a stipulation “unless found to be ambiguous or in need of clarification, modification or interpretation”). A party seeking to enlist the aid of the court to interpret or to abrogate an apparently binding stipulation “must make a reasonable motion to withdraw the stipulation supported by an affidavit showing good cause.” Henrion v. New Era Realty IV, Inc., 586 So.2d 1295, 1298 (Fla. 4th DCA 1991). Where an agreement was voluntarily undertaken, as we must presume the agreement here was, and the record lacks indication of fraud, misrepresentation, or mistake of fact, the court should afford no relief. Id.; see also Gunn Plumbing, 252 So.2d at 1; Curr v. Helene Transp. Corp., 287 So.2d 695 (Fla. 3d DCA 1973).

Having noted that nothing in this record, nor in the arguments made by the appellee, supports abrogation of the freely made stipulation here, I would also observe that appellee has waived its right to rely upon our Caraballo decision. “Pretrial stipulations prescribing the issues on which a case is to be tried are binding upon the parties and the court, and should be strictly enforced.” Lotspeich Co. v. Neogard Corp., 416 So.2d 1163, 1165 (Fla. 3d DCA 1982). Indeed, “[a] stipulation that limits the issues to be tried ‘amounts to a binding waiver and elimination of all issues not included.’ Esch v. Forster, 123 Fla. 905, 168 So. 229, 231 (1936).” Broche v. Cohn, 987 So.2d 124, 127 (Fla. 4th DCA 2008). Parties to litigation give up legal rights through stipulation and waiver on a daily basis. The public policy of this state encourages the same, and voluntary participation in such actions violates no known principle of law. Indeed, “waiver, by definition, is the intentional relinquishment of a known legal right.” Unimed Lab., Inc. v. Agency for Health Care Admin., 715 So.2d 1036, 1037 (Fla. 3d DCA 1998).

For these reasons, I dissent from the majority’s opinion, and I would reverse the order under review with instructions that temporary partial disability benefits be awarded claimant.


text:
    Luis R. CARNEY, Appellant, v. Kellie L. CARNEY, Appellee.
    No. 1D10-0959.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2010.
    Rehearing Denied Oct. 26, 2010.
    Luis R. Carney, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

The former husband seeks review of a final order modifying provisions relating to the care and custody of the parties’ son contained in the final judgment of dissolution of marriage and subsequent orders. We have carefully considered all of the former husband’s complaints, and conclude they are without merit. Accordingly, we affirm the final order of modification. We also reiterate the trial court’s admonition that the parties, and especially the former husband, conduct themselves in such a way as to further the best interests of their son.

AFFIRMED.

WEBSTER, DAVIS, and VAN NORTWICK, JJ., concur.


text:
    Lonnie WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-2745.
    District Court of Appeal of Florida, First District.
    Aug. 25, 2010.
    Rehearing Denied Oct. 25, 2010.
    Lonnie Ward, pro se, Petitioner.
    Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

DAVIS, BENTON, and CLARK, JJ., concur.


text:
    Tamra E. PIERCE, Appellant, v. Linda M. PIERCE, Appellee.
    No. 1D10-1872.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2010.
    Rehearing Denied Oct. 26, 2010.
    Michael R. Rollo of Michael J. Rollo, P.A., Pensacola, for Appellant.
    Robert O. Beasley and Phillip Pugh of Litvak Beasley & Wilson, LLP, Pensacola, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of July 8, 2010, the Court has determined that the order on appeal, which denied a motion to enforce a mediated settlement agreement and set aside the agreement upon determining it was signed under duress, is not one which finally determines a right or obligation of an interested person in a probate matter. Thus, the order is not subject to immediate review pursuant to Florida Rule of Appellate Procedure 9.110(a)(2). Accordingly, the appeal is dismissed for lack of jurisdiction. In light of this dismissal, all pending motions are denied as moot.

DAVIS, BENTON, and CLARK, JJ., concur.


text:
    Ami B. ESKANOS, Bary B. Eskanos, Eskanos Enterprises, et al., Appellants, v. WASHINGTON MUTUAL BANK, FA, Appellee.
    No. 3D09-3392.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 2010.
    Rehearing and Rehearing En Banc Denied Nov. 9, 2010.
    Danny E. Eskanos, Palm Harbor, for appellants.
    Akerman Senterfítt, and Katherine E. Giddings and Nancy M. Wallace, Tallahassee; Akerman Senterfítt, and William P. Heller and Kimberly A. Leary, Fort Laud-erdale, for appellee.
    Before GERSTEN, LAGOA, and SALTER, JJ.
   PER CURIAM.

Affirmed. Fla. R. of Civ. P. 1.510(c); Mortgage Elec. Registration Sys., Inc. v. Revoredo, 955 So.2d 33 (Fla. 3d DCA 2007).


text:
    Antoinette WINKLER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Romacorp, Inc., Appellees.
    No. 1D10-3968.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2010.
    Rehearing Denied Oct. 25, 2010.
    Antoinette Winkler, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, for Appellee Florida Unemployment Appeals Commission.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.110; see also Raysor v. Raysor, 706 So.2d 400 (Fla. 1st DCA 1998).

HAWKES, C.J., WEBSTER, and PADOVANO, JJ., concur.


author: ROWE, J.

text:
    Bernard SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1960.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2010.
    Rehearing Denied Oct. 25, 2010.
    Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   ROWE, J.

Bernard Smith appeals his judgment and sentence, arguing that the trial court erred in admitting his statement that he did not have “any more crack cocaine in him” when questioned by police officers after they saw him spit out several pieces of a partly-chewed substance which the officers recognized from their experience to be crack cocaine. At the time Mr. Smith made the statement to the officers, he had not been administered the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The state asserts that Mr. Smith’s pre-Miranda statement was admissible under the rescue doctrine, also known as the private safety exception to the Miranda rule. We agree and affirm Mr. Smith’s judgment and sentence, holding that the private safety exception applies under the facts of this case where the police officers had an objectively reasonable concern for Mr. Smith’s safety.

This case presents an issue of first impression for this court: whether there is an exception to the Miranda rule where a suspect is questioned by police officers when the suspect is confronted with a life-threatening medical emergency. In New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), the United States Supreme Court recognized a public safety exception to the Miranda rule, holding that statements obtained without Miranda warnings are admissible when immediate questioning is necessary to secure the safety of the public:

[W]here spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer. Undoubtedly most police officers ... would act out of a host of different, instinctive, and largely unverifiable motives — then own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect.
Whatever the motivation of individual officers in such a situation, we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for public safety.

Id. at 656, 104 S.Ct. 2626 (footnote omitted). This exception to the Miranda rule was established by the Court to allow police officers “to follow their legitimate instincts when confronting situations presenting a danger to the public safety.” Id. at 659, 104 S.Ct. 2626. In Joppy v. State, 719 So.2d 316 (Fla. 1st DCA 1998), this court applied the Quarles public safety exception where the circumstances posed a threat to police officers: “The basis for the exception in Quarles is that the need for answers to questions in situations posing a threat to the safety of the public, or to the police such as in this case, outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” Id. at 319.

While this court has not previously extended the Quarles exception to circumstances where the suspect making the pre-Miranda statement was confronted with a life-threatening medical emergency, the Fourth District has done so in Benson v. State, 698 So.2d 333 (Fla. 4th DCA 1997). In such circumstances, where a threat to the safety of the suspect making the pre-Miranda statement is at issue, some courts recognize a companion exception to the Quarles public safety exception, referred to as a private safety exception or a rescue doctrine. See, e.g., State v. Londo, 215 Ariz. 72, 158 P.3d 201 (2006) (applying “private safety exception” or “rescue doctrine” where suspect is reasonably considered to be in urgent need of rescue to avoid serious injury or death due to swallowing crack cocaine); United States v. Lutz, 207 F.Supp.2d 1247, 1258 (D.Kan.2002) (recognizing safety is more important than Miranda where officers saw defendant chewing and swallowing plastic bag commonly associated with drug packaging); People v. Stevenson, 51 Cal.App.4th 1234, 59 Cal.Rptr.2d 878, 880 (1996) (finding police could question suspect who admitted swallowing rock cocaine).

In Benson, a police officer was in the process of arresting a suspect for a drug transaction when he saw the suspect chewing something, and the officers responded by yelling for him to spit it out and physically attempted to prevent him from swallowing. Before administering Miranda warnings, one officer asked Benson how many crack rocks he had swallowed, and he replied that he had swallowed one rock. The officer “described the situation as an ‘emergency,’ explaining that he was concerned about the amount of crack cocaine the defendant may have swallowed because ‘if he had swallowed too much we would have needed to take him to the hospital to have his stomach pumped. Id. at 333-34.

In determining whether an exception to the Miranda rule applied to the inculpato-ry statements made by Benson, the Fourth District applied the three-part test enunciated in People v. Riddle, 83 Cal.App.3d 563, 148 Cal.Rptr. 170, 177 (1978) to determine whether (1) the need for the information was urgent and no other course of action promised relief; (2) there was a possibility of rescuing a person whose life may have been in danger; and (3) rescue of the individual appeared to be the primary purpose and motive of the interrogators. Benson, 698 So.2d at 335. In Benson, the court also found that “[a] necessary ingredient in this medical emergency exception is that there must be an ‘objectively reasonable concern for immediate danger.’” Id. at 337 (quoting United States v. Mobley, 40 F.3d 688 (4th Cir.1994), cert. denied, 514 U.S. 1129, 115 S.Ct. 2005, 131 L.Ed.2d 1005 (1995)).

In holding that Benson’s pre-Miranda statements were properly admitted, the court specifically found that the facts in that case satisfied the three-part test for application of the rescue doctrine, and that the police officers had an objectively reasonable concern that Benson was facing a life-threatening emergency:

[T]he police questioning stemmed from an immediate threat to defendant’s health, which required quick action without time for Miranda warnings. In such a situation, the necessity of protecting the defendant’s health must take precedence over the procedural safeguards of Miranda.

Id.

Here, in circumstances virtually identical to those presented in Benson, Officer Bryant testified that he observed Mr. Smith chewing and attempting to swallow several pieces of crack cocaine. He alerted the other officers on the scene, and together they attempted to convince Mr. Smith to spit out the substance, advising him that he could die from ingesting too much of the substance, and Officer Bryant physically tried to stop him from swallowing the pieces. Officer Williams testified that he asked Mr. Smith if he had any more crack cocaine in his system out of concern that he might overdose, knowing that the officers would need to get Mr. Smith medical assistance if he had ingested the cocaine.

Based on these facts, the pr e-Miranda statements made by Mr. Smith were properly admitted under the private safety exception or rescue doctrine. The circumstances of this case satisfy the three-part test enunciated in Riddle: the need for information was urgent; there was a possibility of rescuing a person whose life may have been in danger; and the rescue of Mr. Smith appears to be the primary purpose and motivation of the interrogator. See Benson, 698 So.2d at 337. As in Benson, the testimony shows there was an objectively reasonable concern for Mr. Smith’s life: Mr. Smith was observed chewing several pieces of crack cocaine and it was unknown if or how much he had swallowed. It was obvious to all the officers on the scene that this posed a serious danger to Mr. Smith’s health. Mr. Smith’s argument that there appeared to have been time to administer Miranda warnings is without merit in light of the facts and circumstances of this case. “The right to remain silent would be of little practical value to a defendant who becomes comatose from a drug overdose while being read his Miranda rights.” Id. at 337-38.

AFFIRMED.

WOLF and CLARK, JJ., concur.


author: CLARK, J.

text:
    Walter KYSER, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3932.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2010.
    Rehearing Denied Oct. 26, 2010.
    Walter Kyser, pro se, Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Walter Kyser appeals the denial of his petition for writ of habeas corpus, through which he challenged an order entered in 1996 denying him postconviction relief. The order denying postconviction relief was affirmed on appeal. Kyser v. State, 701 So.2d 870 (Fla. 1st DCA 1997).

Habeas corpus may not be used as a substitute for an appropriate motion seeking postconviction relief pursuant to the Florida Rules of Criminal Procedure. Harris v. State, 789 So.2d 1114, 1115 (Fla. 1st DCA 2001). It is well-settled that “habeas corpus is not a second appeal and cannot be used to litigate or relitigate issues that could have been ... or were raised on direct appeal.” Breedlove v. Singletary, 595 So.2d 8, 10 (Fla.1992). Neither is habeas corpus available as an additional appeal of issues which could have been or were raised in prior post-conviction proceedings. Mills v. Dugger, 574 So.2d 63 (Fla.1990); see also, Zuluaga v. State, Dept. of Corrections, 32 So.3d 674 (Fla. 1st DCA 2010).

The denial of habeas corpus relief is accordingly AFFIRMED.

KAHN and LEWIS, JJ., concur.

      . Kyser's adjudication of guilty of first degree murder of a law enforcement officer and life sentence were affirmed on appeal, Kyser v. State, 576 So.2d 888 (Fla. 1st DCA 1991), and are not at issue in these proceedings.


text:
    Jim L. McGAHEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3897.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2010.
    Rehearing Denied Oct. 25, 2010.
    Jim L. McGahee, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, LEWIS, and CLARK, JJ., concur.