          Supreme Court of Florida
                                   ____________

                                   No. SC15-1697
                                   ____________

                         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.


                                         -2-
      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.


                                         -3-
      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).




                                        -4-
              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



                                        -5-
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.


                                         -6-
      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.


                                         -7-
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.




                                          -8-
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.




                                          -9-
      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.”


                                        - 10 -
                   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




                                           - 11 -
      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.



                                         - 12 -
      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


                                        - 13 -
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




                                         - 14 -
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”



                                         - 15 -
      [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



                                        - 16 -
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




                                        - 17 -
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and James Donald
Riecks, Assistant Attorney General, Daytona Beach, Florida,

      for Respondent




                                     - 18 -
