Anthony Joseph Farina v. State of Florida ( 2016 )

Supreme Court of Florida
____________
No. SC15-1697
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ANTHONY JOSEPH FARINA,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[May 12, 2016]
PER CURIAM.
Anthony Farina, Jr., seeks review of a trial court order that dismissed his
motion for a new trial based on newly discovered evidence alleging potential juror
misconduct in the guilt phase of his trial. This Court has jurisdiction because
Farina’s death sentence was vacated and remanded for further proceedings, but his
murder conviction remains. See State v. Fourth Dist. Ct. of Appeal, 697 So. 2d 70,
71 (Fla. 1997) (explaining that this Court has “exclusive jurisdiction to review all
types of collateral proceedings in death penalty cases” and that “[t]his includes
cases in which this Court has vacated a death sentence and remanded for further
penalty proceedings”) (emphasis added). Additionally, we treat his petition filed
under Florida Rule of Appellate Procedure 9.142(c) as an appeal from a final order,
because the trial court dismissed his motion alleging newly discovered evidence.1
We conclude that the trial court erred in summarily dismissing Farina’s motion as
premature.
In 1992, Farina was convicted of first-degree murder and six other offenses
stemming from a robbery of a Taco Bell. He was sentenced to death for the
murder and to six consecutive life sentences for armed robbery, burglary,
conspiracy to commit murder, and three counts of attempted first-degree murder.
We affirmed all of Farina’s convictions and all six non-capital sentences, but
vacated his death sentence and remanded for a new penalty phase. Farina v. State,
679 So. 2d 1151, 1152-53 (Fla. 1996). After the new penalty phase, he was
sentenced again to death and we affirmed his death sentence. Farina v. State, 801
So. 2d 44, 48 (Fla. 2001). Later, we affirmed the denial of his initial motion for
postconviction relief and denied his habeas petition before this Court, Farina v.
State, 937 So. 2d 612, 616 (Fla. 2006), as well as the denial of his first successive
motion for postconviction relief, Farina v. State, 992 So. 2d 819 (Fla. 2008) (table
decision).
1. Florida Rule of Appellate Procedure 9.142(c) applies to proceedings that
invoke this Court’s jurisdiction to review nonfinal orders issued in postconviction
proceedings.
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Subsequently, Farina filed a federal habeas petition, which was denied by
the federal district court. See Farina v. Sec’y, Dep’t. of Corr., No. 6:06-cv-1768-
Orl-36GJK, 2012 WL 1016723 (M.D. Fla., Mar. 26, 2012). On appeal, the
Eleventh Circuit Court of Appeals granted habeas relief, set aside Farina’s death
sentence, and remanded the case to the trial court for a new penalty phase, based
on the court’s conclusion that the “prosecutor’s injection of religious authority into
a capital sentencing proceeding . . . diminished the jury’s sense of responsibility in
a way that undermined the reliability of its death recommendation[,]” and that
appellate counsel was ineffective for failing to raise the issue on appeal. Farina v.
Sec’y, Fla. Dep’t. of Corr., 536 Fed. App’x 966, 968-70 (11th Cir. 2013), cert.
denied, 135 S. Ct. 475 (2014).2
After Farina’s death sentence was vacated by the Eleventh Circuit, but prior
to the commencement of the new penalty phase, on May 11, 2015, Farina filed a
motion based on newly discovered evidence. His motion alleged that, based on an
anonymous letter his counsel received on May 12, 2014, his counsel recently
discovered evidence that demonstrated two of the jurors in Farina’s original trial in
1992 were biased because they allegedly had a relationship with the elected State
Attorney, who personally prosecuted Farina at his initial trial.
2. Although Farina’s death sentence has been vacated, his six life sentences
for the noncapital offenses remain undisturbed.
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The trial court did not order a response from the State or hold a case
management conference, but instead concluded that the motion was premature
because Farina was awaiting resentencing, and therefore found that his “conviction
is not final for purposes of filing a successive postconviction motion.”
We disagree that the motion should have been dismissed as premature.
While motions for collateral relief under Florida Rule of Criminal Procedure 3.851
generally apply to “postconviction proceedings that commence upon issuance of
the appellate mandate affirming the death sentence,” litigants filing newly
discovered evidence claims are held to strict time limits, or otherwise must
demonstrate that they could not have known about the evidence at the time of trial
by the exercise of due diligence. See Long v. State, 183 So. 3d 342, 345 (Fla.
2016); Glock v. Moore, 776 So. 2d 243, 251 (Fla. 2001) (declaring that newly
discovered evidence claims in death penalty cases must be brought within one year
after the “evidence was discovered or could have been discovered through the
exercise of due diligence”). As we explained in Jones v. State, 709 So. 2d 512
(Fla. 1998), newly discovered evidence claims must meet two prongs:
First, in order to be considered newly discovered, the evidence “must
have been unknown by the trial court, by the party, or by counsel at
the time of trial, and it must appear that defendant or his counsel could
not have known [of it] by use of diligence.” Torres-Arboleda v.
Dugger, 636 So. 2d 1321, 1324-25 (Fla. 1994).
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Second, the newly discovered evidence must be of such nature
that it would probably produce an acquittal on retrial. Jones[v. State],
591 So. 2d [] 911, 915 [(Fla. 1991)].
Jones, 709 So. 2d at 521.
This Court has previously recognized the appropriateness of adjudicating
motions based on newly discovered evidence filed after the conviction was final
but “[p]rior to the resentencing proceeding.” Way v. State (Way IV), 760 So. 2d
903, 907-08 (Fla. 2000). In Way v. Dugger (Way II), 568 So. 2d 1263, 1267 (Fla.
1990), this Court upheld defendant Way’s murder convictions but vacated his
death sentence and remanded to the trial court for resentencing. Prior to the
resentencing proceeding, Way filed an emergency motion under Florida Rule of
Criminal Procedure 3.850 in the trial court, alleging he had obtained newly
discovered evidence that he claimed was withheld by the State. Way IV, 760 So.
2d at 907. The trial court summarily denied relief on the rule 3.850 motion and
proceeded with the resentencing. Id. After Way was resentenced to death, he
appealed the trial court’s summary denial of his 3.850 motion. Id. at 908. We
reversed the summary denial, stayed Way’s direct appeal in this Court, and
remanded to the circuit court for an evidentiary hearing. Way v. State, 630 So. 2d
177, 179 (Fla. 1993).
We make clear what was not explicitly stated in Way: motions for a new
trial based on newly discovered evidence should not be delayed until after the
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death sentence is final, but instead, should be brought as soon as possible after the
discovery of the new evidence. Indeed, our prior pronouncement in Glock that
newly discovered evidence claims in death penalty cases “must be brought within
one year of the date such evidence was discovered or could have been discovered
through the exercise of due diligence” is consistent with this result. 776 So. 2d at
251. Farina’s motion was filed exactly 364 days after counsel discovered the new
evidence. If Farina had waited until after the conclusion of his resentencing
proceedings, he risked that his motion alleging newly discovered evidence would
be denied as untimely. See id. at 250-51; see also Jones, 709 So. 2d at 521.
While the purpose of rule 3.851 is to bring orderly structure to motions for
collateral relief, review of newly discovered evidence claims that could result in a
new trial should not be postponed until after resentencing or the appeal of the
sentence.3 Certainly, if a defendant awaiting resentencing sought to present
evidence through a motion based on newly discovered evidence that another
witness admitted to the crime for which the defendant was convicted, that motion
should not await resentencing.
3. To the extent that rule 3.851 might conflict with the due diligence prong
of newly discovered evidence, a clarifying amendment to that rule may be
necessary.
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This case exemplifies why. Over two decades have already passed since the
original trial. One of the potential witnesses related to Farina’s claim is now
deceased. If Farina, as the trial court ruled, were to wait to refile his motion
alleging newly discovered evidence after his sentence becomes final, there is a real
possibility that other potential witnesses who might have knowledge related to his
newly discovered evidence claim will have died or their memories will have faded.
Perhaps equally as important, if the allegations in the motion for a new trial based
on newly discovered evidence are rejected on the merits, then any potential taint
surrounding the original conviction is removed. For all of these reasons, motions
alleging newly discovered evidence should be heard and addressed at the earliest
possible opportunity.
The trial court in this case should not have dismissed as premature Farina’s
motion based on newly discovered evidence, but should have, instead, proceeded
to address the motion on the merits. Accordingly, we reverse and remand to the
trial court to reinstate Farina’s motion alleging newly discovered evidence and
address the motion on its merits.4
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.
LEWIS, J., concurs in result.
4. In reversing and remanding, we express no view on the merits of Farina’s
newly discovered evidence claims.
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CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., dissenting.
Because I conclude that this Court lacks jurisdiction over Farina’s “Petition
Seeking Review of Nonfinal Order (Capital Case),” and that even if this Court had
jurisdiction, Farina would not be entitled to relief on the merits of the petition, I
dissent from the majority’s decision to grant relief.
I. Additional Facts
After the Eleventh Circuit Court of Appeals set aside Farina’s death
sentence, but prior to the commencement of the new penalty phase, Farina’s
former trial counsel received an anonymous letter on May 12, 2014, stating:
To whom it may concern:
I write this with heavy hearth [sic]. The Taco Bell murders were
appalling but the treatment of Anthony Farina who did not injure or
kill anyone is also appalling. He is guilty but the punishment is not
justified. Life must be given.
Because of inappropriate actions by the court, I am giving info for a
new trial. The jury was handpicked. The jury foreman was a very
best friend of Gus Sliger. Also on the jury was one of Gus Sliger’s
Party Chiefs Skip (nickname) Campbell. I suspect other connections
to Gus Sliger. In other words, John Tanner had a handpicked jury
with cooperation with those in charge of the jury notices.
Explore this and you will find out.
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John Tanner was the elected state attorney who personally prosecuted Farina at his
initial trial in 1992. The same day that Farina’s former trial counsel received the
letter, he mailed it to Farina’s current counsel.
Upon current counsel’s receipt of the letter, he reviewed the record from the
1992 trial and found that a seated juror named William Campbell stated in voir dire
that he worked as a “party chief” on a surveying crew. According to Farina, when
specifically asked by Farina’s trial counsel, Mr. Campbell stated that he worked for
Sliger & Associates in Port Orange, Florida. Farina’s counsel then reviewed the
campaign contribution records for John Tanner’s 1988 and 1992 campaigns for
state attorney. The records indicate that Sliger & Associates donated $750 to
Tanner’s successful 1988 campaign and $250 and a $130 in-kind donation of wood
to Tanner’s unsuccessful re-election campaign in 1992. Mr. Campbell did not
disclose during voir dire that his employer contributed to Tanner’s campaigns.
Farina’s review of the record also revealed that the jury foreman was a man
named Mr. Durant. Mr. Durant was specifically asked during voir dire if he had
any “friends, associates or relatives” within the court system. Mr. Durant did not
disclose that he was friends with Gus Sliger, whose company contributed to
Tanner’s campaigns.
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Just shy of one year after receiving the letter, on May 11, 2015, Farina, using
the letter as a basis for his claim, filed a second successive motion for
postconviction relief under rule 3.851,5 asserting
that newly discovered evidence reveals that at least one biased juror
was empanelled in the 1992 proceedings that resulted in his current
convictions and non-capital sentences. Neither the prosecutor in Mr.
Farina’s case, nor the empanelled juror in question disclosed the
political relationship between the juror’s employer and the prosecutor
and “the jury foreman failed to disclose his close friendship with the donor to the
prosecutor’s campaigns.” Without requiring a response from the State or holding a
case management conference, the trial court summarily dismissed the motion as
premature on the grounds that Farina’s conviction was “not final for purposes of
filing a successive postconviction motion” because resentencing was pending on
the first-degree murder charge. In dismissing the motion without prejudice, the
trial court granted Farina leave to amend the motion within thirty days after his
sentence for first-degree murder becomes final. Farina then sought relief in this
Court by filing his “Petition Seeking Review of Nonfinal Order (Capital Case)”
“under Rule 9.412(b)(2) of the Florida Rules of Appellate Procedure.”
5. The majority labels Farina’s second successive postconviction motion as
a “motion for a new trial based on newly discovered evidence alleging potential
juror misconduct in the guilt phase of his trial.” Majority op. at 1. The motion was
actually titled, “Defendant Anthony Joseph Farina’s Successive Rule 3.851 Motion
to Vacate Judgment of Conviction and Sentences.”
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II. Treatment of the Petition as a Final Order
In treating the petition as an appeal from a final order, the majority ignores
the fact that the trial court’s order dismissed Farina’s successive motion without
prejudice and granted leave to Farina to amend and refile the motion after his
resentencing.
[T]his Court has held:
[T]he test employed by the appellate court to determine
finality of an order, judgment[,] or decree is whether the
order in question constitutes an end to the judicial labor
in the cause, and nothing further remains to be done by
the court to effectuate a termination of the cause as
between the parties directly affected.
State v. Gaines, 770 So. 2d 1221, 1223-24 (Fla. 2000) (quoting S.L.T. Warehouse
Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974)). Accordingly, “[a]n order which
dismisses a complaint with leave to amend is not final.” McGuire v. Florida
Lottery, 17 So. 3d 1276, 1277 (Fla. 1st DCA 2009) (citing Eagle v. Eagle, 632 So.
2d 122 (Fla. 1st DCA 1994)). The order dismissing Farina’s successive motion as
premature therefore is not a final order because judicial labor is still required to
effectuate a termination of the case. Cf. State v. Delvalle, 745 So. 2d 541, 542
(Fla. 4th DCA 1999) (“The order granting the Defendant’s 3.800(a) motion is not a
final order, as judicial labor, i.e., resentencing, is still required.”).
III. Dismissal of Successive Motion for Postconviction Relief
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The majority “disagree[s] that [Farina’s] motion should have been
dismissed[,]” majority op. at 4, and holds that motions for postconviction relief
filed under rule 3.851 that are based on “newly discovered evidence claims that
could result in a new trial should not be postponed until after resentencing or the
appeal of the sentence[,]” majority op. at 6. But this is contrary to the plain
language of rule 3.851. The title of the rule is “Collateral Relief After Death
Sentence Has Been Imposed and Affirmed on Direct Appeal.” (Emphasis added.)
And the text of rule 3.851 states that it applies
to all postconviction proceedings that commence upon issuance of the
appellate mandate affirming the death sentence to include all motions
and petitions for any type of postconviction or collateral relief brought
by a defendant in state custody who has been sentenced to death and
whose conviction and death sentence have been affirmed on direct
appeal. It shall apply to all postconviction motions filed on or after
January 1, 2015, by defendants who are under sentence of death.
Fla R. Crim. P. 3.851(a) (emphasis added). Thus, Farina’s second successive
motion was not authorized by rule 3.851 because he is not under sentence of death.
The majority attempts to resolve this conundrum by stating,
While motions for collateral relief under Florida Rule of Criminal
Procedure 3.851 generally apply to “postconviction proceedings that
commence upon issuance of the appellate mandate affirming the death
sentence,” litigants filing newly discovered evidence claims are held
to strict time limits, or otherwise must demonstrate that they could not
have known about the evidence at the time of trial by the exercise of
due diligence.
Majority op. at 4. This statement is problematic for several reasons.
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First, under rule 3.851, the requirement is that “[a]ny motion to vacate
judgment of conviction and sentence of death shall be filed by the defendant within
1 year after the judgment and sentence become final.” Fla. R. Crim. P.
3.851(d)(1). However, if “the facts on which the claim is predicated were
unknown to the movant or the movant’s attorney and could not have been
ascertained by the exercise of due diligence,” Florida Rule of Criminal Procedure
3.851(d)(2)(A), then “any claim of newly discovered evidence in a death penalty
case must be brought within one year of the date such evidence was discovered or
could have been discovered through the exercise of due diligence[,]” Glock v.
Moore, 776 So. 2d 243, 251 (Fla. 2001). Of course, these requirements presuppose
that the claim is properly brought under rule 3.851 by a defendant who is under
sentence of death.
Next, the majority opinion cites Way v. State (Way IV), 760 So. 2d 903 (Fla.
2000), for the proposition that “[t]his Court has previously recognized the
appropriateness of adjudicating motions based on newly discovered evidence filed
after the conviction was final but ‘[p]rior to the resentencing proceeding.’ ”
Majority op. at 5 (quoting Way IV, 760 So. 2d at 907-08). But the majority has
read something into Way IV that cannot be found there; nowhere in Way IV did
we recognize that trial courts should adjudicate newly discovered evidence claims
filed under rule 3.851 prior to resentencing. Rather, in Way IV, prior to his
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resentencing proceeding, Way filed an emergency motion for postconviction relief
in the trial court, alleging that the State committed a violation of the mandate of
Brady v. Maryland, 373 U.S. 83 (1963), by withholding exculpatory photographs
from the defense. 760 So. 2d at 907. The trial court summarily denied the motion
and proceeded with the resentencing. Id. On direct appeal—after the
resentencing—we affirmed the trial court’s summary denial of postconviction
relief based on Way’s Brady claim. Id. at 915. We did not address the propriety or
impropriety of the adjudication of a motion for postconviction relief based on
newly discovered evidence prior to resentencing and we certainly did not in any
way suggest that the summary denial of such a claim forms the proper basis for a
direct appeal to this Court prior to resentencing.
IV. Sufficiency of Successive Motion for Postconviction Relief
Even assuming that Farina’s petition could properly be treated as an appeal
from a final order and that it would have been appropriate for the trial court to
adjudicate Farina’s successive postconviction motion prior to resentencing, I
would still affirm the trial court’s summary dismissal because the allegations in
Farina’s motion did not provide a legally sufficient basis for relief.
In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556
(1984), on which Farina relied in his motion, the United States Supreme Court
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concluded that when juror bias is discovered after the trial, in order to be entitled to
a new trial
a party must first demonstrate that a juror failed to answer honestly a
material question on voir dire, and then further show that a correct
response would have provided a valid basis for a challenge for cause.
The motives for concealing information may vary, but only those
reasons that affect a juror’s impartiality can truly be said to affect the
fairness of a trial.
In his successive motion, Farina described his burden as follows:
Under Florida law, a defendant must satisfy two requirements
to obtain relief based on newly discovered and otherwise admissible
evidence. First, the defendant must assert facts that were “unknown
by the trial court, by the party, or by counsel at the time of trial, and it
must appear that defendant or his counsel could not have known them
by the use of diligence.” Jones, 591 So. 2d at 915 (quoting Hallman
v. State, 371 So. 2d 482, 485 (Fla. 1979)); Fla. R. Crim. P.
3.851(d)(2)(A). Second, the defendant must show that “the newly
discovered evidence [is] of such nature that it would probably produce
an acquittal on retrial.” Jones, 591 So. 2d at 915. The Jones standard
is also applicable where “the issue [is] whether a life or a death
sentence should have been imposed.” Id. Mr. Farina’s claim is
analogous to a Jones claim, but the prejudice standard must
necessarily be different because the issue before this Court is different
than that which faced the Florida Supreme Court in Jones: Mr. Farina
need not demonstrate that he would have been acquitted but for the
empanelment of the biased juror; rather, he must show, as per
McDonough, that the revelation of the previously concealed
information “would have provided a valid basis for a challenge for
cause.” McDonough Power Equip., 464 U.S. at 556.
Farina asserted in his motion that he met the first prong of the Jones standard
because “[d]efense counsel could not have known or suspected that a juror would
fail to disclose his relationship with the prosecutor”
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[n]or could defense counsel have known or suspected that the
prosecutor . . . would fail to disclose that a prospective juror was a
contributor—as a result of being a high-ranking employee of a local,
small business—to the prosecutor’s political campaigns, or, at the
very least, that the juror’s direct employer was a political supporter of
the prosecutor’s political campaigns . . . . Furthermore, the existence
of political relationships linking the juror to the prosecutor could not
have been discovered through the exercise of due diligence within a
year of Mr. Farina’s sentences becoming final.
(Emphasis added.)
Farina’s argument that he could not have known that a juror would fail to
disclose that he was a contributor to the prosecutor’s campaign is totally irrelevant.
Farina claimed not that there was some undisclosed political relationship between
the prosecutor and jurors, but that two jurors failed to disclose that a person with
whom they were acquainted had contributed to the prosecutor’s campaigns.
Further, Farina does not explain why he did not simply ask Mr. Campbell and Mr.
Durant during voir dire whether they knew anyone who had contributed to the
prosecutor’s campaigns since he believes that such information would have
demonstrated the jurors’ bias against him.
Moreover, Farina cannot establish that had he known at the time of voir dire
that Mr. Campbell’s employer and Mr. Durant’s friend contributed to the
prosecutor’s campaigns, such information would have provided the basis for a
cause challenge. Farina did not allege in his motion that Mr. Campbell or Mr.
Durant were even aware of Gus Sliger’s campaign contributions. If they were not
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aware of the contributions, they certainly could not have disclosed their existence
or had any resulting bias towards the State or against Farina. Even if Farina had
made such an allegation, to assert that knowledge of Sliger’s contributions would
have somehow biased Mr. Campbell and Mr. Durant against him would be purely
speculative and would not warrant an evidentiary hearing.
V. Conclusion
Because Farina has not been sentenced to death and because the order
dismissing his second successive motion for postconviction relief was not a final
order, his petition is not properly treated as an appeal from a final order denying
postconviction relief in a capital case, and I would deny the petition for want of
jurisdiction. Even if Farina’s petition could properly be treated as an appeal from a
final order denying postconviction review in a capital case, I would still deny relief
on the basis that the trial court did not err in summarily dismissing the successive
postconviction motion with leave to amend because the motion was insufficient on
its face to demonstrate grounds for relief.
POLSTON, J., concurs.
An Appeal from the Circuit Court in and for Volusia County,
Margaret Warren Hudson, Judge - Case No. 641992CF032105XXXAES
Garry Wood, Palatka, Florida, and Marie-Louise Samuels Parmer, Tampa, Florida,
for Petitioner
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Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and James Donald
Riecks, Assistant Attorney General, Daytona Beach, Florida,
for Respondent
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