DC# 450307
DOB: 09/23/66
Eleventh
Judicial Circuit, Dade County, Case# 92-9940C
Sentencing Judge: The Honorable Alan L. Postman
Attorneys, Trial: B. Wax & A. Suri – Assistant Public Defenders
Attorney, Direct Appeal: John H. Lipinski – Private
Attorney, Collateral Appeals: Neal Dupree, Rachel L. Day, and Dan
D. Hallenberg – CCRC-S
Date of
Offense: 03/17/92
Date of
Sentence: 08/02/94
Circumstances of the Offense:
Marbel
Mendoza and Humberto Cuellar planned to rob the victim Conrad
Calderon. Humberto Cuellar asked his brother, Lazaro Cuellar, to
drive the getaway car. Humberto Cuellar and Mendoza gained knowledge
of Mr. Calderon’s schedule and were waiting outside Mr. Calderon’s
house during the predawn hours of 03/17/92.
At approximately 5:40 am, Mr. Caldron left his house
and proceeded to his car. Mendoza and Humberto Cuellar were hiding
behind a hedge and confronted Mr. Calderon in the driveway between
the two vehicles.
Mendoza carried a .38 caliber revolver and Humberto
Cuellar had a 9-mm automatic pistol. A struggle ensued between the
three men. Humberto Cuellar hit Mr. Calderon in the head with his
pistol, at which time the victim took out a .38 special revolver and
shot Humberto Cuellar in the chest.
Humberto
Cuellar then ran to the car; while he was running away, he heard
shots. When Mendoza arrived at the car, he stated to Humberto
Cuellar that he had shot Mr. Calderon. The three men drove to a
hospital.
At the
hospital the police recovered the car, which contained Humberto
Cuellar’s gun. The side of the gun had hair embedded in it, which
was consistent with the story that Humberto Cuellar would tell the
police. On 03/24/92, Mendoza was arrested.
No money was
taken during the robbery. Mr. Calderon’s gun and a bank bag were
found at the scene, under Mr. Calderon’s body. Money was found in
the victim’s pocket and in his wallet.
Mendoza’s
fingerprints were recovered from the car adjacent to where the
victim’s body was found. An x-ray of Humberto Cuellar indicated a
bullet, consistent with the victim’s gun, was lodged near his spine.
Casing and bullets recovered from the scene and the victim’s body
indicated that Mr. Calderon was shot at point-blank range three
times and the fourth shot was from less that six inches away.
*****
Codefendant Information:
Humberto Cuellar
(DC#
433373)
Cuellar
was found guilty and sentenced as follows on 01/18/94:
- 2nd
Degree murder, Dangerous Act – 15 years
- Attempted Robbery with no Firearm or Deadly Weapon – 20 years
- Burglary of an Occupied Dwelling or Conveyance – 20 years
- Threatens to use any Firearm – 15 years
Lazaro Cuellar,
Jr. (DC#
H01509)
On 05/20/93, Lazaro entered a plea
agreement with the State and the lower court in which he agreed to
plea guilty to a lesser offense of manslaughter and plead guilty as
charged to the offenses of conspiracy to commit robbery and
attempted armed robbery. The court accepted the plea agreement and
sentenced him to three concurrent terms of 10 year imprisonment.
*****
Prior Incarceration History in the state of Florida:
|
Offense Date |
Offense |
Sentence Date |
Sentence |
|
8/01/1991 |
Armed Burglary |
6/08/1995 |
27Y |
|
8/01/1991 |
Felony Kidnapping |
6/08/1995 |
27Y |
|
8/01/1991 |
Armed Robbery |
6/08/1995 |
27Y |
|
8/01/1991 |
Aggravated Assault |
6/08/1995 |
5Y |
|
8/01/1991 |
Threatens to Use Any Firearm |
6/08/1995 |
15Y |
|
8/01/1991 |
Possession of Firearm by Felon |
6/08/1995 |
15Y |
|
12/28/1991 |
Robbery |
6/08/1995 |
15Y |
|
12/28/1991 |
Aggravated Battery Intended Harm |
6/08/1995 |
15Y |
|
1/29/1992 |
Armed Robbery |
6/08/1995 |
27Y |
|
1/29/1992 |
Armed Robbery |
6/08/1995 |
27Y |
|
1/29/1992 |
Aggravated Battery w/ Deadly Weapon |
6/08/1995 |
15Y |
|
1/29/1992 |
Possession of Firearm by Felon |
6/08/1995 |
15Y |
|
2/01/1992 |
Armed Robbery |
8/02/1994 |
15Y |
|
2/14/1992 |
Armed Robbery |
5/24/1993 |
12Y |
|
2/14/1992 |
Aggravated battery w/ Deadly Weapon |
5/24/1993 |
12Y |
|
2/14/1992 |
Armed Burglary |
5/24/1993 |
12Y |
|
2/17/1992 |
Burglary Assault |
6/08/1995 |
27Y |
|
2/17/1992 |
Felony Kidnapping |
6/08/1995 |
27Y |
|
2/17/1992 |
Felony Kidnapping |
6/08/1995 |
27Y |
|
2/17/1992 |
Armed Robbery |
6/08/1995 |
27Y |
|
2/17/1992 |
Armed Robbery |
6/08/1995 |
27Y |
|
2/17/1992 |
Grand Theft Firearm |
6/08/1995 |
5Y |
|
2/17/1992 |
Grand Theft Firearm |
6/08/1995 |
5Y |
|
3/10/1992 |
Armed Burglary |
6/08/1995 |
27Y |
|
3/10/1992 |
Armed Robbery |
6/08/1995 |
27Y |
|
3/10/1992 |
Conspiracy to Commit Armed Robbery |
6/08/1995 |
27Y |
|
3/10/1992 |
Threatens to Use any Firearm |
6/08/1995 |
15Y |
|
3/10/1992 |
Possession of Firearm by a Felon |
6/08/1995 |
15Y |
Trial Summary:
03/31/92 Indicted as follows:
Count
I: First-Degree Murder
Count
II: Conspracy to Commit Robbery with a Deadly Weapon
Count
III: Attempted Armed Robbery with a Firearm
Count
IV: Armed Burglary with an Assault
04/14/92 Pled not guilty
02/08/94 Jury returned guilty verdicts on all counts of the
indictment and Jury recommended death by a vote of 7-5
08/02/94 Sentenced as follows:
Count
I: First Degree Murder – Death
Count II: Conspiracy to Commit Robbery with a
Deadly Weapon – 15 years consecutive to Count I
Count
III: Attempted armed Robbery with a Firearm – 15 years with a
3-year mandatory/minimum sentence consecutive to Counts I & II
Count
IV: Armed Burglary with an Assault – Life with a 3 year
mandatory/minimum consecutive sentence to Counts I, II, & III
Case
Information:
A Direct Appeal
was filed to the Florida Supreme Court on 09/19/94. The appellant raised
nine claims, including; the trial court erred in denying appellant’s
motion for mistrial based on the judge’s ex parte communications
with the jurors and allowing the State to impeach appellant’s expert
witness by asking him whether he had considered appellant’s criminal
history and allowing the State to comment during closing arguments on
appellant’s pending criminal charges. The Court found all of the issues
without merit and affirmed Mendoza’s conviction and sentence.
Within two
months from the mandate being issued on the Direct Appeal, a Petition
for Writ of Certiorari was filed to the United States Supreme Court on
03/10/98. It was denied on 10/05/98.
A 3.850 Motion
was filed to the Circuit Court on 09/10/99. It was amended on
09/05/00. The evidentiary hearing was held on 04/16/04. The motion was
denied on 08/18/04.
The 3.850 Appeal
was filed to the Florida Supreme Court on 04/06/01. The Court vacated
the trial court’s decision and remanded the case for an evidentiary
hearing on the claims of ineffective counsel on 04/03/02.
Mendoza filed a
Petition for a Writ of Habeas Corpus to the Florida Supreme Court on
09/06/01, which was dismissed without prejudice on 04/03/02.
On 09/20/04,
Mendoza filed a 3.850 Appeal to the Florida Supreme Court. On 05/24/07,
the Court reversed Mendoza’s conviction and remanded the case back to
the Circuit Court for a new evidentiary hearing on the ineffective
assistance of counsel claims. The circuit judge who heard the evidence
is now deceased and the new evidentiary hearing is to be held upon
remand. On 06/07/07, Mendoza filed a motion for rehearing in the
Florida Supreme Court; this motion was denied on 08/23/07. The mandate
was issued by the Florida Supreme Court on 09/10/07, upholding the
decision reversal and remanding a new evidentiary hearing in the Circuit
Court, which has not yet been held.
