RULE 3.853. MOTION FOR POSTCONVICTION DNA TESTING

(a) Purpose. This rule provides procedures for obtaining
DNA (deoxyribonucleic acid) testing under sections 925.11 and
925.12, Florida Statutes.

(b) Contents of Motion. The motion for postconviction DNA
testing must be under oath and must include the following:

(1) a statement of the facts relied upon in support of
the motion, including a description of the physical evidence
containing DNA to be tested and, if known, the present location or
last known location of the evidence and how it originally was
obtained;

(2) a statement that the evidence was not previously
tested for DNA, or a statement that the results of previous DNA
testing were inconclusive and that subsequent scientific
developments in DNA testing techniques likely would produce a
definitive result establishing that the movant is not the person who
committed the crime;

(3) a statement that the movant is innocent and how
the DNA testing requested by the motion will exonerate the movant
of the crime for which the movant was sentenced, or a statement
how the DNA testing will mitigate the sentence received by the
movant for that crime;

(4) a statement that identification of the movant is a
genuinely disputed issue in the case and why it is an issue or an
explanation of how the DNA evidence would either exonerate the
defendant or mitigate the sentence that the movant received;

(5) a statement of any other facts relevant to the
motion; and

(6) a certificate that a copy of the motion has been
served on the prosecuting authority.

(c) Procedure.

(1) Upon receipt of the motion, the clerk of the court
shall file it and deliver the court file to the assigned judge.

(2) The court shall review the motion and deny it if it is
facially insufficient. If the motion is facially sufficient, the
prosecuting authority shall be ordered to respond to the motion
within 30 days or such other time as may be ordered by the court.

(3) Upon receipt of the response of the prosecuting
authority, the court shall review the response and enter an order on
the merits of the motion or set the motion for hearing.

(4) In the event that the motion shall proceed to a
hearing, the court may appoint counsel to assist the movant if the
court determines that assistance of counsel is necessary and upon
a determination of indigency pursuant to section 27.52, Florida
Statutes.
(5) The court shall make the following findings when
ruling on the motion:

(A) Whether it has been shown that physical
evidence that may contain DNA still exists.

(B) Whether the results of DNA testing of that
physical evidence likely would be admissible at trial and whether
there exists reliable proof to establish that the evidence containing
the tested DNA is authentic and would be admissible at a future
hearing.

(C) Whether there is a reasonable probability that
the movant would have been acquitted or would have received a
lesser sentence if the DNA evidence had been admitted at trial.

(6) If the court orders DNA testing of the physical
evidence, the cost of the testing may be assessed against the
movant, unless the movant is indigent. If the movant is indigent,
the state shall bear the cost of the DNA testing ordered by the
court.

(7) The court-ordered DNA testing shall be ordered to
be conducted by the Department of Law Enforcement or its
designee, as provided by statute. However, the court, upon a
showing of good cause, may order testing by another laboratory or
agency certified by the American Society of Crime Laboratory
Directors/Laboratory Accreditation Board (ASCLD/LAB) or Forensic
Quality Services, Inc. (FQS) if requested by a movant who can bear
the cost of such testing.

(8) The results of the DNA testing ordered by the court
shall be provided in writing to the court, the movant, and the
prosecuting authority.

(d) Time Limitations. The motion for postconviction DNA
testing may be filed or considered at any time following the date
that the judgment and sentence in the case becomes final.
(e) Rehearing. The movant may file a motion for rehearing of
any order denying relief within 15 days after service of the order
denying relief. The time for filing an appeal shall be tolled until an
order on the motion for rehearing has been entered.

(f) Appeal. An appeal may be taken by any adversely
affected party within 30 days from the date the order on the motion
is rendered. All orders denying relief must include a statement that
the movant has the right to appeal within 30 days after the order
denying relief is rendered.

XVIII. FORMS