Anthony Mungin v. State of Florida

Supreme Court of Florida
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No. SC18-635
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ANTHONY MUNGIN,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
February 13, 2020
CORRECTED OPINION
PER CURIAM.
Appellant, Anthony Mungin, challenges an order denying his
third successive motion for postconviction relief, filed pursuant to
Florida Rule of Criminal Procedure 3.851. We have jurisdiction.
See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
In 1993, Mungin was sentenced to death for the first-degree
murder of Betty Jean Woods. The facts of the murder were stated
in the opinion on direct appeal:
Betty Jean Woods, a convenience store clerk in
Jacksonville, was shot once in the head on September
16, 1990, and died four days later. There were no
eyewitnesses to the shooting, but shortly after Woods was
shot a customer entering the store passed a man leaving
the store hurriedly with a paper bag. The customer, who
found the injured clerk, later identified the man as
Mungin. After the shooting, a store supervisor found a
$59.05 discrepancy in cash at the store.
Mungin was arrested on September 18, 1990, in
Kingsland, Georgia. Police found a .25-caliber
semiautomatic pistol, bullets, and Mungin’s Georgia
identification when they searched his house. An analysis
showed that the bullet recovered from Woods had been
fired from the pistol found at Mungin’s house.
Mungin v. State, 689 So. 2d 1026, 1028 (Fla. 1995).
One of the State’s witnesses was Malcolm Gillette, a deputy
sheriff who played a relatively minor role in the police investigation.
Deputy Gillette testified at trial that he stood by while other officers
executed a search warrant and arrested Mungin. Gillette testified
that he discovered a beige Dodge Monaco in a parking lot near
where Mungin was arrested. Gillette ran the license plate and
learned that the car was stolen, so he called for a tow truck to
transport it to an impound lot. He filled out the relevant
paperwork, including an “inventory and vehicle storage receipt.”
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Gillette testified at trial that he saw two spent shell casings in the
stolen car, but on the inventory and vehicle storage receipt, Gillette
made a notation indicating he saw “nothing visible” in the car.
The jury found Mungin guilty and recommended death, and
we affirmed the conviction and sentence. Id. Mungin’s judgment
became final when the United States Supreme Court denied
certiorari review in October 1997. Mungin v. Florida, 522 U.S. 833(1997).
On September 25, 2017, Mungin filed his third successive
postconviction motion. 1 Attached was an affidavit signed by Deputy
Gillette dated September 24, 2016. Gillette swore he did not see
any shell casings in the Dodge Monaco and that, before the trial, he
did not review the paperwork he had filled out. Mungin claimed
that Gillette’s affidavit gave rise to inferences of evidence tampering.
1. We affirmed the denial of Mungin’s initial postconviction
motion and habeas petition. Mungin v. State, 932 So. 2d 986 (Fla.
2006). We reversed in part the summary denial of his first
successive postconviction motion and remanded for an evidentiary
hearing on two claims. Mungin v. State, 79 So. 3d 726 (Fla. 2011).
On appeal following the evidentiary hearing, we affirmed the order
denying relief. Mungin v. State, 141 So. 3d 138 (Fla. 2013). We
affirmed the denial of his second successive postconviction motion.
Mungin v. State, 259 So. 3d 716 (Fla. 2018).
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Mungin alleged that the State committed a Brady 2 violation by
failing to divulge that Gillette saw no shell casings and committed a
Giglio 3 violation by allowing Gillette to give false testimony at trial.
Alternatively, Mungin alleged that defense counsel was ineffective
by failing to speak to or cross-examine Deputy Gillette, and that the
information in Gillette’s affidavit was newly discovered evidence that
was likely to produce an acquittal at retrial.
The State argued that Mungin’s claims were procedurally
barred, but the postconviction court held an evidentiary hearing
and ultimately denied Mungin’s claims on the merits, without
addressing the State’s procedural argument.
ANALYSIS
Generally, postconviction claims in capital cases are untimely
if filed more than a year after the judgment and sentence became
final. Fla. R. Crim. P. 3.851(d). For an otherwise untimely claim to
be considered timely as newly discovered evidence, it must be filed
2. Brady v. Maryland, 373 U.S. 83 (1963).
3. Giglio v. United States, 405 U.S. 150 (1972).
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within a year of the date the claim became discoverable through
due diligence. Reed v. State, 116 So. 3d 260, 264 (Fla. 2013). It is
incumbent upon the defendant to establish the timeliness of a
successive postconviction claim. Rivera v. State, 187 So. 3d 822,
832 (Fla. 2015).
Mungin’s claims are untimely, for he filed the instant
postconviction motion nearly twenty years after his judgment and
sentence became final, and his claims became discoverable through
due diligence more than a year before the motion was filed. Deputy
Gillette signed his affidavit on September 24, 2016, but Gillette was
a known witness who was available to the defense since Mungin’s
1997 trial. See Mills v. State, 684 So. 2d 801, 805 n.9 (Fla. 1996)
(finding a lack of due diligence where the witness with allegedly new
information “was available and known to the defense”).
In fact, Deputy Gillette was not merely known to the defense,
he was Mungin’s close friend and former wrestling partner. He
visited Mungin in prison and wrote him letters. Gillette testified at
the evidentiary hearing that he had been in contact with the
defense team “over the last twenty years on and off” and that he
had discussed his affidavit with an investigator “probably a dozen
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times” over several months before eventually signing it. The third
successive postconviction motion offers no explanation as to why
Gillette’s evidence could not have been ascertained long ago by the
exercise of due diligence. See Fla. R. Crim. P. 3.851(d)(2)(A).
Because all claims raised in Mungin’s third successive
postconviction motion became discoverable through due diligence
more than a year before the motion was filed, Mungin’s claims are
procedurally barred as untimely. Accordingly, we affirm the order
denying postconviction relief. 4
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ,
JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Duval County,
Angela M. Cox, Judge - Case No. 161992CF003178AXXXMA
Todd G. Scher of Law Office of Todd G. Scher, P.L., Hollywood,
Florida,
4. Because Mungin’s claims were procedurally barred, they
were properly denied; it matters not that the postconviction court
denied them on the merits. See Applegate v. Barnett Bank, 377 So.
2d 1150, 1152 (Fla. 1979) (“[T]he decision of the trial court is
primarily what matters, not the reasoning used.”).
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for Appellant
Ashley B. Moody, Attorney General, and Lisa A. Hopkins, Assistant
Attorney General, Tallahassee, Florida,
for Appellee
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