Anthony Mungin v. State of Florida ( 2020 )

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
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.” 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).
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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.
Mungin alleged that the State committed a Brady2 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.
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).
2. Brady v. Maryland, 373 U.S. 83 (1963).
3. Giglio v. United States, 405 U.S. 150 (1972).
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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 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”).
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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 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); see also Jones v. State, 732 So. 2d 313, 322 (Fla. 1999) (holding
that when a motion asserts an untimely claim, the defendant must include a sworn
allegation explaining his inability to assert the claim earlier).
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.
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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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,
for Appellant
Ashley B. Moody, Attorney General, and Lisa A. Hopkins, Assistant Attorney
General, Tallahassee, Florida,
for Appellee
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