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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