Senate Bill sb0122
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Florida Senate - 2002 SB 122
By Senator Villalobos
37-164-02
1 A bill to be entitled
2 An act relating to DNA evidence; amending s.
3 925.11, F.S.; providing for the examination of
4 DNA evidence collected at the time a crime is
5 investigated if the defendant pleads guilty or
6 nolo contendere to the crime and is sentenced
7 by the court; providing a procedure under which
8 the defendant may petition the trial court to
9 order such an examination; providing guidelines
10 for seeking postsentencing testing of DNA
11 evidence; requiring that the court make certain
12 findings; providing for a right to appeal;
13 providing for preservation of evidence for
14 which testing of DNA may be requested;
15 reenacting s. 943.3251, F.S., relating to the
16 duties of the Department of Law Enforcement
17 with respect to postsentencing DNA testing, to
18 incorporate the amendment to s. 925.11, F.S.,
19 in references thereto; providing an effective
20 date.
21
22 Be It Enacted by the Legislature of the State of Florida:
23
24 Section 1. Section 925.11, Florida Statutes, is
25 amended to read:
26 925.11 Postsentencing DNA testing.--
27 (1) Petition for examination.--
28 (a) A person who has been tried and found guilty of
29 committing a crime, or who has entered a plea of guilty or
30 nolo contendere to a crime, and has been sentenced by a court
31 established by the laws of this state may petition that court
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1 to order the examination of physical evidence collected at the
2 time of the investigation of the crime for which he or she has
3 been sentenced which may contain DNA (deoxyribonucleic acid)
4 and which would exonerate that person or mitigate the sentence
5 that person received.
6 (b) Except as provided in subparagraph 2., a petition
7 for postsentencing DNA testing may be filed or considered:
8 1. Within 2 years following the date that the judgment
9 and sentence in the case becomes final if no direct appeal is
10 taken, within 2 years following the date that the conviction
11 is affirmed on direct appeal if an appeal is taken, within 2
12 years following the date that collateral counsel is appointed
13 or retained subsequent to the conviction being affirmed on
14 direct appeal in a capital case, or by October 1, 2003,
15 whichever occurs later; or
16 2. At any time if the facts on which the petition is
17 predicated were unknown to the petitioner or the petitioner's
18 attorney and could not have been ascertained by the exercise
19 of due diligence.
20 (2) Method for seeking postsentencing DNA testing.--
21 (a) The petition for postsentencing DNA testing must
22 be made under oath by the sentenced defendant and must include
23 the following:
24 1. A statement of the facts relied on in support of
25 the petition, including a description of the physical evidence
26 containing DNA to be tested and, if known, the present
27 location or the last known location of the evidence and how it
28 was originally obtained;
29 2. A statement that the evidence was not previously
30 tested for DNA or a statement that the results of any previous
31 DNA testing were inconclusive and that subsequent scientific
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1 developments in DNA testing techniques would likely produce a
2 definitive result;
3 3. A statement that the sentenced defendant is
4 innocent and how the DNA testing requested by the petition
5 will exonerate the defendant of the crime for which the
6 defendant was sentenced or will mitigate the sentence received
7 by the defendant for that crime;
8 4. A statement that identification of the defendant is
9 a genuinely disputed issue in the case, and why it is an
10 issue;
11 5. Any other facts relevant to the petition; and
12 6. A certificate that a copy of the petition has been
13 served on the prosecuting authority.
14 (b) Upon receiving the petition, the clerk of the
15 court shall file it and deliver the court file to the assigned
16 judge.
17 (c) The court shall review the petition and deny it if
18 it is insufficient. If the petition is sufficient, the
19 prosecuting authority shall be ordered to respond to the
20 petition within 30 days.
21 (d) Upon receiving the response of the prosecuting
22 authority, the court shall review the response and enter an
23 order on the merits of the petition or set the petition for
24 hearing.
25 (e) Counsel may be appointed to assist the sentenced
26 defendant if the petition proceeds to a hearing and if the
27 court determines that the assistance of counsel is necessary
28 and makes the requisite finding of indigency.
29 (f) The court shall make the following findings when
30 ruling on the petition:
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1 1. Whether the sentenced defendant has shown that the
2 physical evidence that may contain DNA still exists;
3 2. Whether the results of DNA testing of that physical
4 evidence would be admissible at trial and whether there exists
5 reliable proof to establish that the evidence has not been
6 materially altered and would be admissible at a future
7 hearing; and
8 3. Whether there is a reasonable probability that the
9 sentenced defendant would have been acquitted or would have
10 received a lesser sentence if the DNA evidence had been
11 admitted at trial.
12 (g) If the court orders DNA testing of the physical
13 evidence, the cost of such testing may be assessed against the
14 sentenced defendant unless he or she is indigent. If the
15 sentenced defendant is indigent, the state shall bear the cost
16 of the DNA testing ordered by the court.
17 (h) Any DNA testing ordered by the court shall be
18 carried out by the Department of Law Enforcement or its
19 designee, as provided in s. 943.3251.
20 (i) The results of the DNA testing ordered by the
21 court shall be provided to the court, the sentenced defendant,
22 and the prosecuting authority.
23 (3) Right to appeal; rehearing.--
24 (a) An appeal from the court's order on the petition
25 for postsentencing DNA testing may be taken by any adversely
26 affected party.
27 (b) An order denying relief shall include a statement
28 that the sentenced defendant has the right to appeal within 30
29 days after the order denying relief is entered.
30 (c) The sentenced defendant may file a motion for
31 rehearing of any order denying relief within 15 days after
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1 service of the order denying relief. The time for filing an
2 appeal shall be tolled until an order on the motion for
3 rehearing has been entered.
4 (d) The clerk of the court shall serve on all parties
5 a copy of any order rendered with a certificate of service,
6 including the date of service.
7 (4) Preservation of evidence.--
8 (a) Governmental entities that may be in possession of
9 any physical evidence in the case, including, but not limited
10 to, any investigating law enforcement agency, the clerk of the
11 court, the prosecuting authority, or the Department of Law
12 Enforcement shall maintain any physical evidence collected at
13 the time of the crime for which a postsentencing testing of
14 DNA may be requested.
15 (b) Except for a case in which the death penalty is
16 imposed, the evidence shall be maintained for at least the
17 period of time set forth in subparagraph (1)(b)1. In a case in
18 which the death penalty is imposed, the evidence shall be
19 maintained for 60 days after execution of the sentence.
20 (c) A governmental entity may dispose of the physical
21 evidence before the expiration of the period of time set forth
22 in paragraph (1)(b) if all of the conditions set forth below
23 are met.
24 1. The governmental entity notifies all of the
25 following individuals of its intent to dispose of the
26 evidence: the sentenced defendant, any counsel of record, the
27 prosecuting authority, and the Attorney General.
28 2. The notifying entity does not receive, within 90
29 days after sending the notification, either a copy of a
30 petition for postsentencing DNA testing filed pursuant to this
31 section or a request that the evidence not be destroyed
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1 because the sentenced defendant will be filing the petition
2 before the time for filing it has expired.
3 3. No other provision of law or rule requires that the
4 physical evidence be preserved or retained.
5 Section 2. For the purpose of incorporating the
6 amendment made by this act to section 925.11, Florida
7 Statutes, in references thereto, section 943.3251, Florida
8 Statutes, is reenacted to read:
9 943.3251 Postsentencing DNA testing.--
10 (1) When a court orders postsentencing DNA testing of
11 physical evidence, pursuant to s. 925.11, the Florida
12 Department of Law Enforcement or its designee shall carry out
13 the testing.
14 (2) The cost of such testing may be assessed against
15 the sentenced defendant, pursuant to s. 925.11, unless he or
16 she is indigent.
17 (3) The results of postsentencing DNA testing shall be
18 provided to the court, the sentenced defendant, and the
19 prosecuting authority.
20 Section 3. This act shall take effect upon becoming a
21 law.
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24 SENATE SUMMARY
25 Provides for postsentencing testing of DNA evidence
collected at the time a crime is investigated with
26 respect to a defendant who pleads guilty or nolo
contendere to committing the crime. (See bill for
27 details.)
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31
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