Senate Bill sb0366c2

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    Florida Senate - 2001                     CS for CS for SB 366

    By the Committees on Appropriations, Criminal Justice and
    Senators Villalobos and Smith




    309-1818-01

  1                      A bill to be entitled

  2         An act relating to DNA evidence; creating s.

  3         925.11, F.S.; providing for the examination of

  4         DNA evidence collected at the time a crime is

  5         investigated; providing a procedure under which

  6         a defendant who has been found guilty may

  7         petition the trial court to order an

  8         examination of DNA evidence; providing

  9         guidelines for seeking postsentencing DNA

10         testing; requiring that the court make certain

11         findings; providing for right to appeal;

12         creating s. 943.3251, F.S.; prescribing duties

13         of the Department of Law Enforcement with

14         respect to postsentencing DNA testing;

15         providing an effective date.

16

17  Be It Enacted by the Legislature of the State of Florida:

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19         Section 1.  Section 925.11, Florida Statutes, is

20  created to read:

21         925.11  Postsentencing DNA testing.--

22         (1)  Petition for examination.--

23         (a)  A person who has been tried and found guilty of

24  committing a crime and has been sentenced by a court

25  established by the laws of this state may petition that court

26  to order the examination of physical evidence collected at the

27  time of the investigation of the crime for which he or she has

28  been sentenced which may contain DNA (deoxyribonucleic acid)

29  and which would exonerate that person.

30         (b)  A petition for postsentencing DNA testing may not

31  be filed or considered after:

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    Florida Senate - 2001                     CS for CS for SB 366
    309-1818-01




  1         1.  Two years following the date that the judgment and

  2  sentence in the case becomes final if no direct appeal is

  3  taken, 2 years following the date that the conviction is

  4  affirmed on direct appeal if an appeal is taken, 2 years

  5  following the date that collateral counsel is appointed or

  6  retained subsequent to the conviction being affirmed on direct

  7  appeal in a capital case, or October 1, 2003, whichever occurs

  8  later; or

  9         2.  Two years following the date that a new,

10  scientifically reliable method of DNA testing is approved for

11  use in the courts of this state.

12         (2)  Method for seeking postsentencing DNA testing.--

13         (a)  The motion for postsentencing DNA testing must be

14  made under oath by the sentenced defendant and must include

15  the following:

16         1.  A statement of the facts relied on in support of

17  the motion, including a description of the physical evidence

18  containing DNA to be tested and, if known, the present

19  location of the evidence and how it was originally obtained;

20         2.  A statement that the evidence was not previously

21  tested for DNA or a statement that the results of any previous

22  DNA testing were inconclusive and that subsequent scientific

23  developments in DNA testing techniques would likely produce a

24  definitive result;

25         3.  A statement that the sentenced defendant is

26  innocent and how the DNA testing requested by the motion will

27  exonerate the defendant of the crime for which the defendant

28  was sentenced;

29         4.  A statement that identification of the defendant is

30  a genuinely disputed issue in the case, and why it is an

31  issue;

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    Florida Senate - 2001                     CS for CS for SB 366
    309-1818-01




  1         5.  Any other facts relevant to the motion; and

  2         6.  A certificate that a copy of the motion has been

  3  served on the prosecuting authority.

  4         (b)  Upon receiving the motion, the clerk of the court

  5  shall file it and deliver the court file to the assigned

  6  judge.

  7         (c)  The court shall review the motion and deny it if

  8  it is insufficient. If the motion is sufficient, the

  9  prosecuting authority shall be ordered to respond to the

10  motion within 30 days.

11         (d)  Upon receiving the response of the prosecuting

12  authority, the court shall review the response and enter an

13  order on the merits of the motion or set the motion for

14  hearing.

15         (e)  Counsel may be appointed to assist the sentenced

16  defendant if the motion proceeds to a hearing, if the court

17  makes the determination that the assistance of counsel is

18  necessary and makes the requisite finding of indigency.

19         (f)  The court shall make the following findings when

20  ruling on the motion:

21         1.  Whether the sentenced defendant has shown that the

22  physical evidence that may contain DNA still exists;

23         2.  Whether the results of DNA testing of that physical

24  evidence would have been admissible at trial and whether there

25  exists reliable proof to establish that the evidence has not

26  been materially altered and would be admissible at a future

27  hearing; and

28         3.  Whether there is a reasonable probability that the

29  sentenced defendant would have been acquitted if the DNA

30  evidence had been admitted at trial.

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    Florida Senate - 2001                     CS for CS for SB 366
    309-1818-01




  1         (g)  If the court orders DNA testing of the physical

  2  evidence, the cost of such testing may be assessed against the

  3  sentenced defendant unless he or she is indigent. If the

  4  sentenced defendant is indigent, the state shall bear the cost

  5  of the DNA testing ordered by the court.

  6         (h)  Any DNA testing ordered by the court shall be

  7  carried out by the Florida Department of Law Enforcement or

  8  its designee, as provided in s. 943.3251.

  9         (i)  The results of the DNA testing ordered by the

10  court shall be provided to the court, the sentenced defendant,

11  and the prosecuting authority.

12         (3)  Right to appeal; rehearing.--

13         (a)  An appeal from the court's order on the motion for

14  postsentencing DNA testing may be taken by any adversely

15  affected party.

16         (b)  An order denying relief shall include a statement

17  that the sentenced defendant has the right to appeal within 30

18  days after the order denying relief is entered.

19         (c)  The sentenced defendant may file a motion for

20  rehearing of any order denying relief within 15 days after

21  service of the order denying relief. The time for filing an

22  appeal shall be tolled until an order on the motion for

23  rehearing has been entered.

24         (d)  The clerk of the court shall serve on all parties

25  a copy of any order rendered with a certificate of service,

26  including the date of service.

27         Section 2.  Section 943.3251, Florida Statutes, is

28  created to read:

29         943.3251  Postsentencing DNA testing.--

30         (1)  When a court orders postsentencing DNA testing of

31  physical evidence, pursuant to s. 925.11, the Florida

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    Florida Senate - 2001                     CS for CS for SB 366
    309-1818-01




  1  Department of Law Enforcement or its designee shall carry out

  2  the testing.

  3         (2)  The cost of such testing may be assessed against

  4  the sentenced defendant, pursuant to s. 925.11, unless he or

  5  she is indigent.

  6         (3)  The results of postsentencing DNA testing shall be

  7  provided to the court, the sentenced defendant, and the

  8  prosecuting authority.

  9         Section 3.  This act shall take effect October 1, 2001.

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11          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
12                            CS/SB 366

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14  Clarifies the time periods by which petitions for
    postsentencing DNA testing must be filed.
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    Deletes requirements concerning the preservation of evidence
16  which may be subject to postsentencing DNAtesting.

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