Florida/Georgia Personal Injury & Workers Compensation

...(9) execution by lethal injection is cruel and unusual punishment; (10) defendant may be incompetent at the time of execution; and (11) the cumulative effect of the errors deprived defendant of a fundamentally fair trial. [6] Florida's DNA statute, section 925.11, Florida Statutes (2002), was enacted effective October 1, 2001, giving Guzman the right to this testing....

...5 Seminole County Sheriff’s Office or Clerk of Court. Following his conviction, Alvarez collaterally filed in state court a “Petition for Post-Sentencing DNA Testing,” pursuant to Fla. R. Crim. P. 3.853 and Fla. Stat. § 925.11....

...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. Fla. R. Crim. P. 3.853(c)(5). Fla. Stat. § 925.11 also addresses postsentencing DNA testing and similarly requires the trial court to answer the same three questions. Fla. Stat. § 925.11(2)(f). After several rounds of amendation, Alvarez filed a “Third Amended Petition for Post-Conviction DNA Testing” in state court, maintaining his innocence and seeking access to the physical evidence for DNA testing....

...The trial court then struck King's October 3, 2001, pro se postconviction motion because King was represented by CCRC-M. Thereafter, CCRC-M filed additional public record requests with six agencies and sought DNA testing of vaginal washings and a rectal swab taken from the murder victim, Natalie Brady. Pursuant to section 925.11, Florida Statutes (2001), and Florida Rule of Criminal Procedure 3.853, the trial court found the DNA request to be sufficient and ordered the State to respond. The State responded with a copy of a report generated by the Office of the State Attorney for the Sixth Judicial Circuit which was prepared during the summer of 2001, anticipating the October 1, 2001, effective date of section 925.11....

...King, this court cannot make the required finding under the statute or the rule, that there exists a reasonable probability that the defendant would be acquitted, or that he would receive a life sentence if the requested re-testing were allowed. Fla. Stat. § 925.11(2)(f)3; Fla....

...id not like the result obtained by the FDLE test. This is not required, not contemplated, nor appropriate under either the new statute or the new rule. The defendant has not filed a motion for Postconviction DNA Testing as contemplated by Fla. Stat. § 925.11, or Fla....

...above, cannot make the required finding under the statute or the rule, that there exists a reasonable probability that the defendant would be acquitted or would receive a life sentence if the requested mitochondrial DNA re-testing were allowed. Fla. Stat. § 925.11(2)(f)3; Fla....

...Upson testified at trial that his investigation revealed that a sexual act was committed between Gudinas and his fourteen-year-old sister on one occasion when five people were at one person's apartment. [10] We are aware that Gudinas may elect to file a similar motion for DNA testing pursuant to section 925.11, Florida Statutes (2001), which became effective on October 1, 2001....

...1st DCA 2001). State v. Hitchcock, No. CR76-1942 at 1-2 (Fla. 9th Cir. Ct. order filed June 24, 2002). Hitchcock now appeals the denial of his motion. ANALYSIS This Court adopted Florida Rule of Criminal Procedure 3.853 in 2001, tracking the provisions of section 925.11, Florida Statutes (2001)....

...Cole did not include this claim in his rule 3.850 motion; instead, Cole made an oral request for the DNA testing at the Huff hearing. The trial court summarily denied Cole's request without explanation. We note that the trial court's denial of Cole's DNA request came prior to the effective date of section 925.11, Florida Statutes (2001), and Florida Rule of Criminal Procedure 3.853 (DNA testing). We do not address Cole's request for relief at this time except to state that our decision should not be read to prohibit Cole from seeking such testing pursuant to the mandates of section 925.11 and rule 3.853....

...CONCLUSION Accordingly, we affirm the trial court's denial of Cole's rule 3.850 motion and deny Cole's petition for writ of habeas corpus. Our decision to deny Cole's request for a DNA test, however, is without prejudice to allow him to seek such a test consistent with the provisions of section 925.11, Florida Statutes (2001), and Florida Rule of Criminal Procedure 3.853....

...the victim. Willacy also alleges that the green tank top and white shirt had been worn by the murderer, and that DNA testing would determine the identity of the wearer, thereby excluding Willacy as the perpetrator. The applicable law is set forth in section 925.11(2), Florida Statutes (2006), and Florida Rule of Criminal Procedure 3.853, as well as Hitchcock v. State, 866 So.2d 23, 27 (Fla.2004). Section 925.11(2) states: (a) The petition for postsentencing DNA testing must be made under oath by the sentenced defendant and must include the following: ....

...kins' motion for postconviction relief and in its order denying Tompkins' motion for rehearing. In the latter order, entered on June 15, 2001, the trial court expanded on its reason for denying the motion for DNA testing in light of the enactment of section 925.11, Florida Statutes (2002). Section 925.11 requires that the trial court make the following findings after the defendant has filed a sufficient petition and the State has responded: 1....

...lly altered and would be admissible at a future hearing; and 3. Whether there is a reasonable probability that the sentenced defendant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial. § 925.11(2)(f), Fla....

...Given the evidence presented at trial regarding the identity of the remains [18] and the location of the remains, we conclude that even if the DNA analysis indicated a source other than Lisa DeCarr or Tompkins, there is no reasonable probability that Tompkins would have been acquitted or received a life sentence. See § 925.11(2)(f), Fla....

...28 U.S.C. § 2244(d)(2). We conclude that it was not such an application. Brown’s motion was filed under Florida Rule of Criminal Procedure 3.853. That Rule “provides procedures for obtaining DNA . . . testing [authorized] under sections 925.11 and 925.12, Florida Statutes.” If the movant is successful, those 4 procedures culminate only in “the results of the DNA testing ordered by the court [being] provided in writing to the court, the movant, and the prosecuting authority.” Rule 3.853(c)(8); § 925.11(2)(i)....

...Based on one partial fingerprint, one hair, and the victim's in-court identification, a jury determined that Allen Zollman was the woman's assailant. Zollman was sentenced to life plus thirty years in prison. Twenty-three years later, Zollman filed a motion for postconviction DNA testing pursuant to newly enacted section 925.11, Florida Statutes (2001), and Florida Rule of Criminal Procedure 3.853....

...Moreover, Zollman alleges that his sole defense at trial was misidentification. Despite these allegations, the trial court found that identity was not "genuinely disputed" at trial because the victim had identified Zollman as her assailant. However, this finding ignores the fact that the purpose of section 925.11 and rule 3.853 is to provide defendants with a means by which to challenge convictions when there is a "credible concern that an injustice may have occurred and DNA testing may resolve the issue." In re Amendment to Fla....

...h the victim's body. While the appeal from the trial court's 2001 denial of postconviction relief on the penalty phase ineffective assistance of counsel claim was pending, we granted jurisdiction to the trial court to conduct DNA testing pursuant to section 925.11, Florida Statutes (2001), or Florida Rule of Criminal Procedure 3.853....

...During the 2001 regular session, and after the Criminal Rules Committee filed its original petition, the Legislature passed DNA legislation, which, among other things, provides for postsentencing DNA testing. See Fla. CS for CS for SB 366 (2001), ch.2001-97, Laws of Fla. (creating §§ 925.11 and 943.3241 and amending § 943.325, Fla....

...PROPOSED RULE 3.853 Proposed rule 3.853 varies from the new DNA legislation in several respects, the most significant of which are the provisions addressing who may seek postconviction DNA testing and the laboratory or agency that must conduct the testing. Chapter 2001-97, section 1, Laws of Florida, creates section 925.11(1)(a), Florida Statutes, which provides that a person who has been tried and found guilty may move the court to order postsentencing DNA testing. Like the legislation, proposed rule 3.853(a) authorizes DNA testing for those who have been tried and convicted but the rule also authorizes testing for those who entered guilty or nolo contendere pleas. Chapter 2001-97, section 1, also creates section 925.11(2)(h), Florida Statutes, which provides for court-ordered DNA testing to be conducted by the Florida Department of Law Enforcement (FDLE) or its designee, as provided in section 943.3251....

...In re Amendments to the Florida Evidence Code, 782 So.2d 339 (Fla.2000) (declining to address substantive/procedural issues in a rules amendment case). We have modified proposed subdivision (a) of the proposed rule to explain that the new rule simply provides procedures for obtaining DNA testing under section 925.11, Florida Statutes. Subdivision (b) of rule 3.853 lists the contents of a motion seeking DNA testing. In response to the comments and consistent with subsection (1)(a) of section 925.11, which authorizes DNA testing when the evidence tested may contain DNA that would exonerate the movant or mitigate the sentence received, we have modified subdivision (b)(4) of the new rule to require: a statement that identification o...

...crease confidence in the outcomes of criminal proceedings. PARIENTE and QUINCE, JJ., concur. APPENDIX RULE 3.853 MOTION FOR POSTCONVICTION DNA TESTING (a) Purpose. This rule provides procedures for obtaining DNA (deoxyribonucleic acid) testing under section 925.11, Florida Statutes....

...that the hair was not his. We therefore reverse and remand for further proceedings consistent with this opinion and the requirements of the rule. Reversed and remanded. CASANUEVA and STRINGER, JJ., concur. NOTES [1] The rule mirrors the language of section 925.11, Florida Statutes (2001), in which the legislature provided for postconviction DNA testing.

...Sec’y, Fla. Dep’t of Corr. (Branch IV), 638 F.3d 1353, 1356 (11th Cir. 2011). In 2016, we affirmed the circuit court’s denial of Branch’s motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes (2015)....

...for the DNA testing at the Huff hearing. [ Huff v. State, 622 So.2d 982 (Fla.1993)]. The trial court summarily denied Cole's request without explanation. We note that the trial court's denial of Cole's DNA request came prior to the effective date of section 925.11, Florida Statutes (2001), and Florida Rule of Criminal Procedure 3.853 (DNA testing). We do not address Cole's request for relief at this time except to state that our decision should not be read to prohibit Cole from seeking such testing pursuant to the mandates of section 925.11 and rule 3.853....

...On November 3, 2003, the circuit court denied the motion, holding that Cole had not established, as required by rule 3.853, a reasonable probability that the testing would exonerate him or mitigate his sentence. This appeal followed. ANALYSIS In 2001, this Court adopted rule 3.853, which tracks the provisions of section 925.11, Florida Statutes....

...District Court of Appeal of Florida, Second District. June 11, 2003. Rehearing Denied July 17, 2003. *575 SILBERMAN, Judge. Charles Saffold appeals the trial court's order summarily denying his motion for postconviction DNA testing filed pursuant to section 925.11, Florida Statutes (2001), and Florida Rule of Criminal Procedure 3.853. We affirm because Saffold's motion did not satisfy the requirements of subsections (b)(1), (b)(3), and (b)(4) of rule 3.853. We first note that under section 925.11(1)(a), a "person who has been tried and found guilty of committing a crime and has been sentenced by a court established by the laws of this state may petition that court" for postconviction DNA testing....

...5D03-576. District Court of Appeal of Florida, Fifth District. March 21, 2003. Willie A. Stewart, Milton, Pro Se. No Appearance for Appellee. ORFINGER, J. Willie A. Stewart appeals the denial of his motion for postconviction DNA testing filed pursuant to section 925.11(1)(a), Florida Statutes (2002), and Florida Rule of Criminal Procedure 3.853....

...Stewart pled nolo contendere to sexual battery. He now maintains that DNA testing of certain evidence in the State's possession will exonerate him. The trial court denied Stewart's motion because he pled nolo contendere to the charge and did not go to trial. We affirm. Section 925.11(1)(a) [1] provides that a defendant "who has been tried and found guilty of committing a crime" may petition the court for DNA testing....

...State, 834 So.2d 252 (Fla. 1st DCA 2002); accord Epps v. State, 835 So.2d 1217 (Fla. 4th DCA 2003). [2] AFFIRMED. THOMPSON, C.J., and MONACO, J., concur. NOTES [1] Florida Rule of Criminal Procedure 3.853 provides the procedure for obtaining DNA testing under section 925.11, Florida Statutes. [2] We observe that in adopting Rule 3.853 to provide a procedural mechanism to implement section 925.11(1)(c), the Florida Supreme Court refused to extend the right to DNA testing to defendants who entered guilty or nolo contendere pleas....

...No Appearance for Appellee. SHARP, W., J. Hartline appeals from the summary denial of his motion for post-conviction relief, in which he sought DNA testing. Although the motion was filed prior to the enactment of Florida Rule of Criminal Procedure 3.853 and section, 925.11, Florida Statutes (2001), [1] the trial court nonetheless considered the motion on the merits....

...tending that she instead filed it *253 pursuant to Florida Rule of Criminal Procedure 3.853. Although the trial court erred by treating Reighn's petition as having been filed under rule 3.850, we nevertheless affirm, because the motion was barred by section 925.11, Florida Statutes (2002). Section 925.11(1)(a) provides that a defendant may file a postsentence motion requesting DNA testing if the defendant "has been tried and found guilty of committing a crime," whereas Reighn pled nolo contendere before trial....

...possibility that any DNA testing will result in exoneration or in a mitigated sentence." Van Poyck appeals the trial court's order summarily denying his rule 3.853 motion. ANALYSIS Rule 3.853 sets forth the procedures for obtaining DNA testing under section 925.11, Florida Statutes (2004)....

...District Court of Appeal of Florida, Second District. June 13, 2003. WHATLEY, Judge. Richard J. Manual appeals the trial court's order summarily denying his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes (2001)....

...Spaziano v. State, 348 So.2d 980 (Fla. 4th DCA), cert. denied, 352 So.2d 174 (Fla.1977). Twenty-seven years after his conviction, Spaziano filed a motion for postconviction DNA testing of certain evidence collected during the police investigation. § 925.11, Fla....

...Otherwise, *57 the trial court must conduct an evidentiary hearing. REVERSED AND REMANDED with instructions. KAHN, C.J., and BARFIELD, J., concur; THOMAS, J., concurs with opinion. THOMAS, J., concurring. Based on the State's concession that this case must be reversed and the requirements of section 925.11, Florida Statutes (2004), I concur with the majority opinion....

...No. 2D03-1287. District Court of Appeal of Florida, Second District. July 16, 2003. Rehearing Denied August 26, 2003. *685 CASANUEVA, Judge. Mathew L. Smith challenges the summary denial of his motion for postconviction DNA testing filed pursuant to section 925.11(1)(a), Florida Statutes (2002), and Florida Rule of Criminal Procedure 3.853. We affirm. Smith pleaded guilty to sexual battery. He now seeks DNA testing of certain evidence. Section 925.11(1)(a) provides that a defendant "who has been tried and found guilty of committing a crime" may petition the court for DNA testing....

...00(a), 3.850, or 3.853." See also Fla. R.Crim. P. 3.853(f). *1259 The state contends that the order summarily denying the motion for DNA testing should be affirmed because the motion fails to establish that the defendant has a right to testing under section 925.11, Florida Statutes (2003)....

...A statement that identification of the defendant is a genuinely disputed issue in the case, and why it is an issue; 5. Any other facts relevant to the petition; and 6. A certificate that a copy of the petition has been served on the prosecuting authority. § 925.11(2)(a), Fla....

...On May 23, 2006, more than two years later, Bain filed the rule 3.853 motions that are the subject of this appeal. In summarily denying both motions, the postconviction court found that they were untimely, in part because Bain's delay in refiling was an abuse of process. However, due to an amendment to section 925.11, Florida Statutes, enacted on June 23, 2006, no time limit applies to rule 3.853 motions for postconviction DNA testing filed on or after October 1, 2005. See Ch. 2006-292, §§ 1, 4, at 2204-7, Laws of Fla. (codified in § 925.11, Fla....

...Marsh's request for DNA testing of the rape kit evidence is without merit, as any results would be superfluous because Marsh admitted that he was the person who had sexual intercourse with the victim. Marsh's unsuccessful defense at trial had been one of consensual sex, not identity. See § 925.11(1)(a), Fla....

...probation. He did not appeal. On June 1, 2006, appellant filed his motion for post-conviction DNA testing. On June 6, 2006, the trial court denied the motion. In denying the motion, the trial court understandably relied on the language set forth in section 925.11, Florida Statutes (2005), *1214 which limited the right to file motions for post-sentencing DNA testing to individuals whose convictions had resulted from a trial. See also Stewart v. State, 840 So.2d 438 (Fla. 5th DCA 2003). Although the trial court's decision was correct when made, it later became incorrect as a result of the amendments made to section 925.11 in this year's legislative session. Newly enacted section 925.11(1)(a)(2) extends the right to file a motion for post-conviction DNA testing to individuals who have entered a plea of guilty or nolo contendere to a felony prior to July 1, 2006....

...same DNA profile. At trial, appellant’s defense was mis-identification. The jury found appellant guilty of sexual battery and burglary. Subsequently, appellant filed a motion for DNA testing pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes (2008)....

...The particular testing procedures adopted by the trial court are reviewed de novo to determine whether they employ a method generally accepted by the scientific community. See Brim v. State, 695 So.2d 268, 274 (Fla.1997). DNA testing is governed by Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes....

...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 mov-ant who can bear the cost of such testing. Section 925.11(2)(f)3....

...Nowhere does this rule appear to authorize the splitting of physical evidence for DNA testing. In fact, the splitting of physical evidence may frustrate the stated intent of the rule, which was promulgated to establish procedures for testing pursuant to sections 925.11 and 925.12. Section 925.11(l)(a)l....

...bris," as well as hair samples. Appellant's motion is facially sufficient, alleging that he is innocent, that identity was a material issue at trial, that no DNA testing of the relevant evidence occurred, and that DNA testing will exonerate him. See 925.11(2), Fla. Stat. (2006). The trial court denied Appellant's motion, relying on language in section 925.11(1)(a), Florida Statutes (2005), which limits the right to file rule 3.853 motions to those who have been tried and found guilty of a felony, and effectively excludes those who entered a guilty or nolo contendere plea to such crimes. However, section 925.11(1)(a)2. was amended in 2006 to allow for postconviction DNA testing in cases where the defendant enters a plea of guilty or nolo contendere to a felony. See § 925.11(1), Fla. Stat. (2006); Lindsey v. State, 936 So.2d 1213 (Fla. 5th DCA 2006). Section 925.11(1)(a)2., Florida Statutes (2006), provides: A person who has entered a plea of guilty or nolo contendere to a felony prior to July 1, 2006, and has been sentenced by a court established by the laws of this state may petition that court...

...meaning. See Montgomery v. State, 897 So.2d 1282, 1285 (Fla.2005). When the language is clear and unambiguous, there is no room for statutory interpretation or judicial construction. Id.; State v. Jett, 626 So.2d 691, 692 (Fla.1993). The language of section 925.11(1)(a)2....

...However, nothing in Hitchcock indicates that the court intended to place the burden on the defendant to make such explanations and justifications; rather, the court found that the allegations were inadequate on the merits. Further, nothing in rule 3.853 or section 925.11, Florida Statutes (2006), places this type of burden on the defendant. Finally, in light of the strict pleading requirements found in rule 3.853, this type of burden cannot be inferred. As such, we find the State's argument and reliance on Hitchcock unpersuasive. In light of the plain language of section 925.11(1)(a)2., Florida Statutes (2006), this case must be remanded. Accordingly, we reverse the trial court's summary denial of Appellant's rule 3.853 motion and remand to the trial court to address the merits of Appellant's petition pursuant to sections 925.11(2)(c)-(f), Florida Statutes (2006)....

...Rehearing Denied June 4, 2004. Royce M. Reed, in proper person. Charles J. Crist, Jr., Attorney General, for appellee. Before GERSTEN, GODERICH, and FLETCHER, JJ. PER CURIAM. Royce Reed appeals the denial of his motion for post-conviction DNA testing pursuant to section 925.11(1)(a), Florida Statutes (2002), and Florida Rule of Criminal Procedure 3.853....

...SHARP, W., J., concurs and concurs specially, with opinion. SHARP, W., J., concurring and concurring specially. Finally, the Legislature has provided a limited remedy for convicted persons to seek to exonerate themselves by resort to DNA evidence, section 925.11, which the courts have not done....

...633 (Fla.2001) (Anstead, concurring in part and dissenting in part). *837 The legislative remedy is limited in time: a two year window from the date this statute was enacted on October 1, 2001, for persons convicted prior to the date of the statute. § 925.11(1)(b)1. [1] A person seeking this remedy must file a timely petition with the required allegations and information. § 925.11; Rule 3.853....

...NOTES [1] Our case is clearly distinguishable from Knighten v. State, 829 So.2d 249 (Fla. 2d DCA 2002), because in Knighten, the defendant had filed a motion pursuant to rule 3.853, while in our case, Dedge has not filed a rule 3.853 motion and we are giving him leave to do so. [1] § 925.11(1)(b)1, provides: Within 2 years following the date that the judgment and sentence in the case becomes final if direct appeal is taken, within 2 years following the date that the conviction is affirmed on direct appeal if a direct appeal is...

...District Court of Appeal of Florida, Second District. March 31, 2004. *71 NORTHCUTT, Judge. Andres Ortiz, also known as Andres Ortiz Hernandez, appeals the order denying his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes (2001)....

...These facts were consistent with Ortiz's defense that the victim was assaulted by someone else before she left with Ortiz. Ortiz has also alleged that the State's blood grouping tests excluded him as the perpetrator but that the State discredited this evidence in closing argument. Because rule 3.853 and section 925.11 are fairly new, there is little case law interpreting and applying their provisions....

...STATE of Florida, Appellee. No. 2D02-5179. District Court of Appeal of Florida, Second District. July 30, 2003. WHATLEY, Judge. Robert Warren appeals the trial court's order dismissing his motion filed pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes (2002)....

...The trial court found that Warren's motion for postconviction DNA testing failed to comply with the procedural requirements of rule 3.853 because the motion *818 "does not demonstrate or allege that the evidence is still available." A postconviction motion for DNA testing is governed by rule 3.853 and section 925.11....

...Both the rule and the statute require that the movant include 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 was originally obtained. Fla. R.Crim. P. 3.853(b)(1); see also § 925.11(2)(a)(1)....

...h inartfully drafted, Warren's motion satisfied the requirement that he provide, if known, "the present location or the last known location of the evidence." Because we conclude that Warren also complied with the other requirements of rule 3.853 and section 925.11, and therefore filed a facially sufficient motion for postconviction DNA testing, we reverse the trial court's order and remand with instructions to the trial court to order the prosecuting authority to respond to the motion....

...bove quoted colloquy clearly indicates that the defendant voluntarily entered a plea of guilty to each of the charges and admitted under oath that he committed each offense. The defendant, therefore, cannot seek postconviction DNA testing based upon section 925.11(1)(a), Florida Statutes (2004), which provides that "[a] person who has been tried and found guilty of committing a crime" may petition the sentencing court to order DNA testing. § 925.11(1)(a), Fla. Stat (2004)(emphasis added); Reed v. State, 874 So.2d 648 (Fla. 3d DCA 2004)("`[A] defendant who enters a plea of guilty or nolo contendere may not seek postconviction DNA testing based on the language of [section 925.11(1)(a), Florida Statutes].'") (quoting Smith v....

...State, 697 So.2d 805 (Fla.1996), and Consalvo v. State, 937 So.2d 555 (Fla.2006). We have previously characterized the proof of Consalvo’s guilt as “overwhelming.” See, e.g., Consalvo, 697 So.2d at 816 . On September 13, 2001, prior to the enactment of section 925.11, Florida Statutes (2008), and Florida Rule of Criminal Procedure 3.853, prescribing procedures and conditions for securing DNA testing in criminal cases, Consalvo filed a motion to release crime scene evidence to conduct expert lab and DNA testing....

...We agree with the trial court that, on its face, Consalvo’s motion is insufficiently pleaded under rule 3.853. Further, we do not find persuasive Consalvo’s argument that rule 3.853 should not apply to his motion although the motion was filed and considered well after the enactment of section 925.11 and the rule....

...1st DCA 2001), and in the face of a record demonstrating “overwhelming” evidence of his guilt, Con-salvo has not even attempted to demonstrate how further testing would exonerate him. Rule 3.853 delineates the procedures for obtaining DNA testing under section 925.11, and states that a petition for postconviction DNA testing must include, among other things, “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 th...

PER CURIAM. William Thomas Zeigler, Jr., appeals an order of the circuit court denying a motion for postconviction DNA testing pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes....

...he must explain how the DNA evidence would exonerate him. As the court in Crow v. State, 866 So.2d 1257 (Fla. 1st DCA 2004), explained, the *1052 rule of procedure governing DNA testing is broader than the statute addressing the same subject matter. Section 925.11(2)(a)(4), Florida Statutes (2007), mandates that a motion allege "identification of the defendant is a genuinely disputed issue in the case, and why it is an issue." The Crow court thoroughly analyzed why the rule of procedure controls over the statute and we agree with its reasoning....

...[2] The circuit court correctly determined that rule 3.853 presents no occasion to rule on a Youngblood claim. Rule 3.853 provides procedures for a convicted person to obtain DNA testing if certain requirements are met, including the requirement that DNA evidence must still exist. Fla. R.Crim. P. 3.853(c)(5)(A); see § 925.11(2)(f)(1), Fla....

...NOTES [1] See In re Amendments to Florida Rule of Criminal Procedure 3.853(d), 938 So.2d 977 (Fla.2006) (noting that the deadline for filing a motion for postconviction DNA testing in rule 3.853(d)(1)(A) had been temporarily extended from October 1, 2005, to July 1, 2006); see also Ch. 2006-292, § 1, Laws of Fla. (amending section 925.11(1)(b) to allow that "[a] petition for postsentencing DNA testing under paragraph (a) may be filed or considered at any time following the date that the judgment and sentence in the case becomes final").

...DNA found on the victim, but (3) the defendant offered contrary evidence challenging the reliability of the prior testing methods. The tests were not inconclusive, merely contested. Neither Rule 3.853 nor the statute allowing postconviction testing, section 925.11(2)(a), Florida Statutes (2002), provides for additional testing in such circumstances....

...To allow this Court an opportunity to fully consider the petitions, the deadline of October 1, 2003, set forth in rule 3.853(d)(1)(A), is hereby suspended until further order of this Court. Further, as petitioners point out, operation of the same deadline in section 925.11(l)(b)l., Florida Statutes (2002), may result in the non-preservation of physical evidence for DNA testing under section 925.11(4)(b). Because such a result would render these proceedings moot and in effect preclude this Court, should it determine it has jurisdiction, from the “complete exercise” thereof, the deadline in section 925.11(l)(b)l....

...is hereby held in abeyance while this Court considers its jurisdiction and other matters before it. See art. V, § 3(b)(7), Fla. Const. By our actions herein, we express no opinion on the merits of the underlying petitions. Accordingly, by operation of the terms of the statute, the evidence described in section 925.11(4)(a) “shall be maintained for at least the period of time” controlled by the abeyance....

...During the 2001 regular session, and after the Criminal Rules Committee filed its original petition, the Legislature passed DNA legislation, which, among other things, provides for post-sentencing DNA testing. See Fla. CS for CS for SB 366 (2001), ch.2001-97, Laws of Fla. (creating §§ 925.11 and 943.3241 and amending § 943.325, Fla....

...1 In the instant petition, the committee proposed extending the October 1, 2003, deadline set forth in rule 3.853 until October 1, 2004. Subsequently, an emergency writ petition was filed raising constitutional challenges to the October 1, 2003, statutory deadline set forth in section 925.11, Florida Statutes (2003), in addition to other provisions of the statute....

...The committee’s proposal was also published in the October 15, 2003, edition of The Florida Bar News. Several comments were received, to which the committee responded. On May 20, 2004, Governor Jeb Bush signed into law legislation that extended the DNA testing deadline set forth in section 925.11, Florida Statutes, as follows: (b) Except as provided in subpara-graph 2., a petition for postsentencing DNA testing may be filed or considered: 1....

...ANALYSIS After considering the comments filed with the Court and presented at oral argument and reviewing the recently enacted legislation, we amend rule 3.853(d)(1)(A) to extend the deadline from October 1, 2003, to October 1, 2005. Further, to make the rule consistent with section 925.11, Florida Statutes, we amend rule 3.853(d)(1)(A) to increase the amount of time for a defendant who is not subject to the October 1, 2005, deadline to petition for postsentenc-ing DNA testing from two to four years....

...It is so ordered. PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur. APPENDIX RULE 3.853. MOTION FOR POST-CONVICTION DNA TESTING (a) Purpose. This rule provides procedures for obtaining DNA (deoxyribonucleic acid) testing under section 925.11, Florida Statutes....

...g. See Collins v. State, 869 So.2d 723 (Fla. 4th DCA 2004). The summary denial of all the other issues raised by Block is affirmed. See Fla. R.Crim. P. 3.853(a) (“This rule provides procedures of obtaining DNA (deoxyribonucleic acid) testing under section 925.11, Florida Statutes.”)....

NORTHCUTT, Chief Judge. Robert James Brim challenges the summary denial of his motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11(1)(a)(2), Florida Statutes (2006)....

...Obviously, in that case the postconviction court could not authorize Brim to file a facially sufficient motion for DNA testing by a particular deadline because Brim was legally ineligible to seek that relief. Brim did not become eligible to seek DNA testing until June 23, 2006, when section 925.11 was amended to permit defendants who had pleaded guilty or no contest to felony offenses prior to July 1, 2006, to seek DNA testing in their cases. See Ch.2006-292, § 1, at 2205, Laws of Fla.; § 925.11(1)(a)(2), Fla....

...Hill, Jr., Special Counsel Criminal Appeals, Tallahassee, for Appellee. PER CURIAM. After reviewing the state's response to this Court's show cause order, we conclude that the appellant's rule 3.853 motion is facially sufficient. See Fla. R.Crim. P. *1155 3.853; § 925.11(1)(a)2.; (2)(a)1.-6., Fla....

...er attached records conclusively refuting his assertions, or held a hearing on the motion. It is of no matter that the appellant entered a plea to the charges. See Glenn v. State, 954 So.2d 732 (Fla. 1st DCA 2007) (stating that the 2006 amendment to section 925.11, which governs post-conviction DNA testing, permits defendants who have pled guilty or nolo contendere to file rule 3.853 motions)....

...olding that because Appellant pled guilty, he is not entitled to DNA testing. As the majority opinion correctly notes, we have recognized that the Legislature has determined that even a defendant who enters a plea is entitled to request DNA testing. § 925.11(1)(a)(2), Fla....

...On remand, Appellant pled guilty to the rape charge. As noted, this does not preclude his access to claim additional DNA testing under rule 3.853, Florida Rules of Criminal Procedure, but it is relevant regarding the facts of the underlying charge. Furthermore, under sections 925.11(2)(f)(1)-(3), Florida Statutes, the trial court must ultimately determine, 39 years after the rape occurred, whether evidence subject to DNA testing still exists, whether the evidence has been materially altered and whether it will be admissib...

...uilty to this rape. McDole, 283 So.2d at 553. Thus, if Appellant's DNA is not present, assuming evidence from a 39-year-old case is available and can be subjected to DNA testing, will not prove entitlement to DNA testing under the holding of Lott or section 925.11(2), Florida Statutes, as the DNA could be attributable to Appellant's co-defendant, without exonerating Appellant....

PER CURIAM. AFFIRMED. See § 925.11(1)(a), Fla....

...5 Seminole County Sheriff’s Office or Clerk of Court. Following his conviction, Alvarez collaterally filed in state court a “Petition for Post-Sentencing DNA Testing,” pursuant to Fla. R. Crim. P. 3.853 and Fla. Stat. § 925.11....

...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. Fla. R. Crim. P. 3.853(c)(5). Fla. Stat. § 925.11 also addresses postsentencing DNA testing and similarly requires the trial court to answer the same three questions. Fla. Stat. § 925.11(2)(f). After several rounds of amendation, Alvarez filed a “Third Amended Petition for Post-Conviction DNA Testing” in state court, maintaining his innocence and seeking access to the physical evidence for DNA testing....

...ttempted STR DNA testing, for which the hairs were not suitable. Neither the FDLE nor the postconviction court made any attempts to determine whether the two pubic hairs were unsuitable for all forms of DNA testing available. Although rule 3.853 and section 925.11, Florida Statutes (2004), do not delineate which form of DNA testing should be performed, this does not mean that the post-conviction court is only limited to STR DNA testing, particularly when there are other means of DNA testing that have been judicially accepted....

...The Court explained: To allow this Court an opportunity to fully consider the petitions, the deadline of October 1, 2003, set forth in rule 3.853(d)(1)(A), is hereby suspended until further order of this Court. Further, as petitioners point out, operation of the same deadline in section 925.11(1)(b)1., Florida Statutes (2002), may result in the non- preservation of physical evidence for DNA testing under section 925.11(4)(b)....

...Because such a result would render these proceedings moot and in effect preclude this Court, should it determine it has jurisdiction, from the “complete exercise” thereof, the deadline in - 11 -  section 925.11(1)(b)1....

...considers its jurisdiction and other matters before it. See art. V, § 3(b)(7), Fla. Const. By our actions herein, we express no opinion on the merits of the underlying petitions. Accordingly, by operation of the terms of the statute, the evidence described in section 925.11(4)(a) “shall be maintained for at least the period of time” controlled by the abeyance....

...Rawls’ judgment and sentences. Rawls v. State, 596 So.2d 1255 (Fla. 2d DCA 1992). In October 2001, Mr. Rawls filed a motion for postconviction DNA testing. At the time, Mr. Rawls’ nólo contendere plea disqualified him from obtaining the requested relief. See § 925.11(l)(a), Fla....

...The postconviction court entered an order denying the second motion based on its earlier order. Unfortunately, the postcon-viction court overlooked that the law now allows postconviction DNA testing in cases where a defendant has entered a plea of guilty or nolo contendere to a felony before July 1, 2006. § 925.11(l)(a)(2), Fla....

...relevant to the merits of the motion. The lack of an objection to, or even whole-hearted agreement with, a motion seeking DNA testing, of course, is not binding on the trial court, which is required to make legislatively mandated findings. § 925.11(2)(f), Fla....

...Kevin Thomas appeals from the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. The postconviction court denied Thomas’s motion as untimely. Because the motion was not untimely under rule 3.853 or section 925.11, Florida Statutes (2007), we reverse and remand for consideration on the merits....

...Thomas also admitted that he was given thirty days to file a facially sufficient motion and that he failed to do so within that time frame. Thomas asserted that his amended motion should nevertheless be considered on its merits because neither rule 3.853 nor section 925.11 place any time limits on seeking postconviction DNA testing....

...court and not because of any time limit imposed by any rule or statute. The postconviction court provided no legal basis for its apparent belief that the thirty-day time limit it had imposed on Thomas superseded the unlimited time allowed Thomas by section 925.11 and rule 3.853....

...ngthy delay” in filing the amended motion and that fil *389 ing the amended motion nine months after the thirty-day deadline imposed by the earlier order rendered it untimely. Thomas now appeals this ruling. As Thomas correctly points out, neither section 925.11 nor rule 3.853 provide any time limit for filing motions seeking postconviction DNA testing. When initially enacted, section 925.11 provided a deadline of two years after a judgment and sentence became final or October 1, 2001, whichever was later....

...2006-292, § 1, Laws of Fla. Thus, the statute now provides as follows: A petition for postsentencing DNA testing under paragraph (a) may be filed or considered at any time following the date that the judgment and sentence in the case becomes final. § 925.11(1)(b), Fla....

...imit, Thomas’s amended motion could not have been untimely as a matter of law. Second, a postconviction court may not arbitrarily shorten the time allowed for filing a facially sufficient rule 3.853 motion in contravention of the plain language of section 925.11 and rule 3.853....

...that might have been set was not actually considered or ruled upon by this court. Therefore, the dicta in Bain does not control the resolution of this case, in which the post-conviction court purported to set just such a deadline in contravention of section 925.11 and rule 3.853....

...1st DCA 2007), the First District rejected the State’s argument that a defendant who had waited seven years to seek postconviction DNA testing had an obligation to allege facts to justify his delay. In doing so, the First District noted that “nothing in rule 3.853 or section 925.11, Florida Statutes (2006), places this type of burden on the defendant.” Id....

...y the nine-month delay in filing his amended motion. However, as noted in Glenn , neither the rule nor the statute requires Thomas to justify his delay, and neither the postconviction court nor this court should require a defendant to do so. Because section 925.11 and rule 3.853 do not place any time limits on a defendant’s right to seek postconviction DNA testing, the postconviction court could not legally deny Thomas’s amended motion as untimely....

...2018). Everett also sought and was denied federal habeas relief. Everett v. Crews, 5:11cv81/RS, 2014 WL 11350293 (N.D. Fla. Mar. 28, 2014), aff’d, 779 F.3d 1212 (11th Cir. 2015). In 2022, Everett filed a motion for postconviction DNA testing under rule 3.853 and section 925.11, Florida Statutes....

...would produce an acquittal or lesser sentence in light of the overwhelming evidence against him and the minimal value of proving that Farmer’s DNA was on the proposed items. This appeal followed. II. ANALYSIS Section 925.11(1)(a)1., Florida Statutes (2022), provides that a person convicted and sentenced for a felony may seek postconviction DNA testing of evidence collected during the investigation of the crime that would exonerate that person or mitigate the sentence that person received....

...2018), and find no error for the following reasons. First, Everett’s motion was insufficiently pleaded. Everett alleged that if the testing sought revealed Farmer’s DNA on the items, such evidence could result in an acquittal or a finding of guilt of a lesser offense. But section 925.11 and rule 3.853 require a movant to plead that “the DNA testing requested” “will exonerate the” movant “or will mitigate the sentence.” § 925.11(2)(a)3., Fla. Stat....

...2d at 1287. -8-  Everett complains that the circuit court provided no rationale for rejecting the claims in his motion that his confession was false and ignoring “significant evidence” of Farmer’s involvement in the murder. But these complaints are misplaced. Both section 925.11 and rule 3.853 require that before a defendant is entitled to postconviction DNA testing, he must demonstrate “a reasonable probability that” he “would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.” § 925.11(2)(f)3., Fla....

WOLF, J. Appellant challenges the trial court’s dismissal of his motion for postconvietion DNA testing which he filed pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes....

PER CURIAM. Dominick Harris appeals from the trial court’s order denying his motion for post-conviction DNA testing pursuant to section 925.11, Florida Statutes (2003)....

...from the state. The difference between the instant case and Zollman and Borland is that unlike the defendants in those cases, Delidle did not go to trial. The predicate to post conviction relief is that the defendant was convicted after a trial. See § 925.11(l)(a), Fla....

PER CURIAM. Affirmed. See § 925.11(2)(a), Fla....

...Appellant’s conviction was affirmed by this court. Starr v. State, 793 So.2d 972 (Fla. 5th DCA 2001). Appellant subsequently filed a motion seeking DNA testing of a condom. The condom had been found in the vicinity of the area where the victim had been assaulted. Section 925.11(l)(a)2., Florida Statutes (2006), permits a person who has entered a plea of guilty or nolo contendere to a felony prior to July 1, 2006, to petition a court to “order the examination of physical evidence collected at the time of the...

...In its response in this court, the State acknowledges that this analysis was erroneous. The DNA testing statute was amended in 2006. As amended, the statute allows postconviction DNA testing in cases where a defendant entered a plea of guilty or nolo contendere to a felony prior to July 1, 2006. § 925.11(1)(a)2., Fla....