Full Opinion

Third District Court of Appeal State of Florida Opinion filed March 4, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-1478 Lower Tribunal No. 88-893-K ________________ Benito Concepcion, Petitioner, vs. The State of Florida, Respondent. A Case of Original Jurisdiction – Habeas Corpus. Benito Concepcion, in proper person. Ashley Moody, Attorney General, and Richard L. Polin, Assistant Attorney General, for respondent. Before FERNANDEZ, SCALES and LINDSEY, JJ. SCALES, J. Petitioner Benito Concepcion seeks a writ of habeas corpus from this Court. In September of 1988, a Monroe County jury found Petitioner guilty of first-degree murder and kidnapping. He was sentenced to life in prison with a twenty-five year minimum mandatory, and remains in prison to this day.1 In June of 2008, Petitioner filed in the Monroe County Circuit Court a Florida Rule of Criminal Procedure 3.850 post-conviction motion, based on alleged “newly discovered” evidence. This motion alleged that on May 1, 2008, Petitioner’s mother, Leonor Concepcion, received a call from one of the jurors in Petitioner’s criminal trial. Petitioner appended three affidavits to his motion – affidavits from this juror, Leonor Concepcion, and a friend of Leonor Concepcion named Dalila Disla. Because Leonor Concepcion does not speak English, Disla allegedly spoke on the phone to the juror. The affidavits reflect the juror’s regret over the juror’s findings of guilt. In the supposed phone call to Leonor Concepcion and Disla, and in the juror’s subsequent affidavit, dated May 5, 2008, the juror confessed to her part in alleged prosecutorial misconduct. The juror said that the prosecutor in the case, during a recess conversation, put pressure on her to vote for a verdict of guilt. She was contacting Leonor Concepcion twenty years later because of the dictates of her conscience. 1 This Court affirmed Petitioner’s conviction and sentence in Concepcion v. State, 554 So. 2d 4 (Fla. 3d DCA 1989). 2 On July 18, 2008, the trial court ordered the State to respond to Petitioner’s post-conviction motion. The State Attorney’s Office undertook an investigation of the alleged juror tampering. A State investigator interviewed the juror. The juror denied calling Leonor Concepcion and speaking to Disla. Indeed, phone records indicated that no call was made to Leonor Concepcion’s home from the juror’s phone on or around May 1, 2008. The juror denied having any contact with the prosecutor during the case and stated that, notwithstanding the representations in her affidavit, no one put pressure on her to vote for a guilty verdict. The juror conceded that Leonor Concepcion, Disla and a notary appeared unexpectedly at her home in Bradenton, Florida, with papers they wanted the juror to sign. She was under the impression they were there to solicit her opinion about the possibility of Petitioner’s release from jail, and that the affidavit she signed reflected this understanding.2 At the time, this juror was an elderly woman. When the investigator read to her the text of the affidavit that had been submitted to the post-conviction court, the juror adamantly denied both having any contact with the prosecutor outside of the courtroom and telling her three unexpected visitors that the prosecutor put pressure on her. 2 As the State points out in its response to the petition, the signature line appears on a separate affidavit page from the text. Also, as the State points out, the format and font of the juror’s affidavit is identical to the format and font of Leonor Concepcion and Disla’s affidavits, suggesting that the juror’s affidavit was prepared before the visitors’ arrival at the juror’s home. 3 On March 19, 2009, the trial court conducted a status hearing on Petitioner’s post-conviction motion and appointed the public defender to represent Petitioner at an evidentiary hearing to be scheduled in the future. Before that evidentiary hearing occurred, however, Petitioner, through newly hired private counsel, withdrew his post-conviction motion. The trial court, thus, terminated proceedings on the post- conviction motion on September 14, 2009. More than a decade after withdrawing his post-conviction motion, Petitioner filed the instant petition directly with this Court. Relying in his petition on the same prosecutorial misconduct allegation he made in his withdrawn 2008 post-conviction motion, Petitioner asserts that he is entitled to habeas corpus relief because his incarceration is manifestly unjust. In opposition to the petition, the State makes several cogent arguments: (1) habeas corpus is not an available remedy in lieu of a belated rule 3.850 motion for postconviction relief, Baker v. State, 878 So. 2d 1236, 1242 (Fla. 2004); (2) the petition is rife with factual assertions better suited for trial court adjudication in a proper rule 3.850 proceeding; and (3) while habeas corpus may be available to correct a manifest injustice, the odor of fraud on the court – albeit left undetermined by Petitioner’s withdrawal of his rule 3.850 motion – bears upon our review of this petition’s merits. We agree with the State in all respects. Petition denied. 4