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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 or the National Forensic Science Training
Center 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.
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