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The Florida Bar News
November 1, 2009
Amendments concerning post conviction DNA testing
AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE
The Criminal Procedure Rules Committee invites comments on proposed amendments to the Florida Rule of Criminal Procedure shown below. The full text of the proposal can also be found on The Florida Bar’s website at www.FloridaBar.org. The proposed amendments will be filed with the court out-of-cycle. Interested persons have until December 1, 2009, to submit comments electronically to Fleur J. Lobree, Chair, Criminal Procedure Rules Committee, fleurlobree@miamisao.com, with a copy to the committee’s staff liaison at jjenning@flabar.org.
RULE 3.853. MOTION FOR POST CONVICTION DNA TESTING
(a) – (b) No Change
(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 making the appropriate finding of indigence.
(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 or the National Forensic Science Training Center/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) – (f) No Change
AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE
The Criminal Procedure Rules Committee invites comments on proposed amendments to the Florida Rule of Criminal Procedure shown below. The full text of the proposal can also be found on The Florida Bar’s website at www.FloridaBar.org. The proposed amendments will be filed with the court out-of-cycle. Interested persons have until December 1, 2009, to submit comments electronically to Fleur J. Lobree, Chair, Criminal Procedure Rules Committee, fleurlobree@miamisao.com, with a copy to the committee’s staff liaison at jjenning@flabar.org.
RULE 3.853. MOTION FOR POST CONVICTION DNA TESTING
(a) – (b) No Change
(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 making the appropriate finding of indigence.
(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
(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) – (f) No Change
[Revised: 01-28-2012]
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