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Jorge Cueto v. State of Florida

November 23, 2011

JORGE CUETO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE.



An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge. Lower Tribunal No. 99-34125

The opinion of the court was delivered by: Emas, J.

Not final until disposition of timely filed motion for rehearing.

Before RAMIREZ, LAGOA and EMAS, JJ.

Defendant Jorge Cueto appeals the trial court's order summarily denying his motion for post-conviction relief. We reverse, holding that the trial court erred in summarily denying Cueto's motion without an evidentiary hearing, and in applying the incorrect standard in assessing the claims raised in Cueto's motion.

Cueto filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, based upon a claim that the State knowingly presented perjured testimony at his trial. Because the trial court denied the motion without an evidentiary hearing, we must accept as true the well-pled allegations in Cueto's motion.*fn1

Cueto alleged in his motion that, in 2008, he was in prison and met another inmate, Angel Medina. Cueto alleged that Medina provided Cueto with information regarding the prosecutor in Cueto's case, as well as information regarding a witness who testified at Cueto's trial. The information provided by Medina to Cueto was later memorialized in an affidavit, sworn to by Medina and attached to Cueto's motion.

Medina's affidavit avers the following: 1. In 2003 Medina overheard another prisoner, Gilbert Serna, talking about Cueto's case. (Serna was a co-defendant in Cueto's case. Serna pled guilty, cooperated with the State, and testified as a State witness at Cueto's trial.)

2. Serna told Medina that the prosecutor (who he identified by name) had promised Serna that if he testified against Cueto at Cueto's trial, Serna would receive a reduced sentence.

3. Serna testified at trial and, when asked at trial whether the State had made any promises to him in exchange for his testimony against Cueto, Serna testified that he had not received any promises from the State, including any promise of a reduced sentence.

4. Serna told Medina that this testimony was false and that in fact the prosecutor had promised Serna he would receive a reduced sentence in exchange for his testimony against Cueto.

5. Serna told Medina in 2003 that if the prosecutor did not comply with the verbal agreement of reducing his sentence for the testimony he had provided in Cueto's case, he (Serna) would give Cueto an affidavit to get his case overturned.

6. Medina had written an "expose'" called "Win at All Costs", in which Medina had raised allegations of prosecutorial misconduct in a number of different and unrelated criminal prosecutions. The document, on its face, had been signed and sworn to by Medina on December 7, 2004, and attached to it was a distribution list of intended recipients, which included various media outlets and law enforcement agencies. Included in Medina's 2004 expose' was the following:

[The prosecutor] tried and convicted the Cueto, and Julio Ruiz arm (sic) robbery case in which she obtain (sic) a life sentence using the testimony of Gilbert Serna. . [The prosecutor] portrayed Gilbert Serna and Manolo Perdomo testimony to the jury under the pretense that neither Serna nor Perdomo were getting any kind of sentence reduction for their cooperation with the State of Florida. The fact is that [the prosecutor] (sic) had a pre arranged ...


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