Amendment
Bill No. 1005
Amendment No. 791005
CHAMBER ACTION
Senate House
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1Representative(s) Joyner offered the following:
2
3     Amendment (with title amendment)
4     Between lines 593 and 594 insert:
5     Section 10.  Section 925.11, Florida Statutes, is amended
6to read:
7     925.11  Postsentencing DNA testing.--
8     (1)  Petition for examination.--
9     (a)  A person who is under a sentence of imprisonment or
10death has been tried and found guilty of committing a crime and
11has been sentenced by a court established by the laws of this
12state may petition the that court to order the examination of
13physical evidence collected at the time of the investigation of
14the crime for which he or she has been sentenced that which may
15contain DNA (deoxyribonucleic acid) and which would exonerate
16that person or mitigate the sentence that person received.
17     (b)  Except as provided in subparagraph 2., a petition for
18postsentencing DNA testing may be filed or considered:
19     1.  Within 4 years following the date that the judgment and
20sentence in the case becomes final if no direct appeal is taken,
21within 4 years following the date that the conviction is
22affirmed on direct appeal if an appeal is taken, within 4 years
23following the date that collateral counsel is appointed or
24retained subsequent to the conviction being affirmed on direct
25appeal in a capital case, or by October 1, 2005, whichever
26occurs later; or
27     2.  At any time if the facts on which the petition is
28predicated were unknown to the petitioner or the petitioner's
29attorney and could not have been ascertained by the exercise of
30due diligence.
31     (2)  Method for seeking postsentencing DNA testing.--
32     (a)  The petition for postsentencing DNA testing must be
33made under oath by the sentenced defendant and must include the
34following:
35     1.  A statement of the facts relied on in support of the
36petition, including a description of the physical evidence
37containing DNA to be tested and, if known, the present location
38or the last known location of the evidence and how it was
39originally obtained.;
40     2.  A statement that the evidence was not previously tested
41for DNA or a statement that the sentenced defendant is
42requesting DNA testing using a new method or technology that is
43substantially more probative than the prior DNA testing. the
44results of any previous DNA testing were inconclusive and that
45subsequent scientific developments in DNA testing techniques
46would likely produce a definitive result;
47     3.  A statement that the sentenced defendant is innocent
48and how the DNA testing requested by the petition will exonerate
49the defendant of the crime for which the defendant was sentenced
50or will mitigate the sentence received by the defendant for that
51crime.;
52     4.  If a trial was conducted, a statement that
53identification of the defendant was is a genuinely disputed
54issue in the trial. case, and why it is an issue;
55     5.  Any other facts relevant to the petition.; and
56     6.  A certificate that a copy of the petition has been
57served on the prosecuting authority.
58     (b)  Upon receiving the petition, the clerk of the court
59shall file it and deliver the court file to the assigned judge.
60     (c)  The court shall review the petition and deny it if it
61is insufficient. If the petition is sufficient, the prosecuting
62authority shall be ordered to respond to the petition within 30
63days. The court shall direct the prosecuting authority to take
64measures and notify all relevant entities to preserve the
65specific evidence relating to a petition under subsection (1).
66     (d)  Upon receiving the response of the prosecuting
67authority, the court shall review the response and enter an
68order on the merits of the petition or set the petition for
69hearing.
70     (e)  Counsel may be appointed to assist the sentenced
71defendant if the petition proceeds to a hearing and if the court
72determines that the assistance of counsel is necessary and makes
73the requisite finding of indigency.
74     (f)  The court shall make the following findings when
75ruling on the petition:
76     1.  Whether the sentenced defendant has shown that the
77physical evidence that may contain DNA still exists.;
78     2.  Whether the results of DNA testing of that physical
79evidence would be admissible at trial and whether there exists
80reliable proof to establish that the evidence has not been
81materially altered and would be admissible at a future hearing.;
82and
83     3.  Whether there is a reasonable probability that the
84sentenced defendant would have been acquitted or would have
85received a lesser sentence if the DNA evidence had been admitted
86at trial.
87     (g)  If the court orders DNA testing of the physical
88evidence, the cost of such testing may be assessed against the
89sentenced defendant unless he or she is indigent. If the
90sentenced defendant is indigent, the state shall bear the cost
91of the DNA testing ordered by the court.
92     (h)  Any DNA testing ordered by the court shall be carried
93out by the Department of Law Enforcement or its designee, as
94provided in s. 943.3251.
95     (i)  The results of the DNA testing ordered by the court
96shall be provided to the court, the sentenced defendant, and the
97prosecuting authority. The prosecuting authority shall enter any
98DNA profile found into the National DNA Index System. If the DNA
99test results exclude the petitioner, then the petitioner's DNA
100reference sample must be destroyed.
101     (3)  Right to appeal; rehearing.--
102     (a)  An appeal from the court's order on the petition for
103postsentencing DNA testing may be taken by any adversely
104affected party.
105     (b)  An order denying relief shall include a statement that
106the sentenced defendant has the right to appeal within 30 days
107after the order denying relief is entered.
108     (c)  The sentenced defendant may file a motion for
109rehearing of any order denying relief within 15 days after
110service of the order denying relief. The time for filing an
111appeal shall be tolled until an order on the motion for
112rehearing has been entered.
113     (d)  The clerk of the court shall serve on all parties a
114copy of any order rendered with a certificate of service,
115including the date of service.
116     (4)  Preservation of evidence.--
117     (a)  Governmental entities that may be in possession of any
118physical evidence in the case, including, but not limited to,
119any investigating law enforcement agency, the clerk of the
120court, the prosecuting authority, or the Department of Law
121Enforcement shall maintain any physical evidence collected at
122the time of the crime for which a postsentencing testing of DNA
123may be requested.
124     (b)  Except for a case in which the death penalty is
125imposed, the evidence shall be maintained for at least the
126period of time a person is incarcerated for the crime in
127connection with which the evidence was collected set forth in
128subparagraph (1)(b)1. In a case in which the death penalty is
129imposed, the evidence shall be maintained for 60 days after
130execution of the sentence.
131     (c)  A governmental entity may dispose of the physical
132evidence before the expiration of the period of time set forth
133in paragraph (1)(b) if all of the conditions set forth below are
134met:
135     1.  The evidence must be returned to its rightful owner or
136is of such a size, bulk, or physical character as to render
137retention impracticable.
138     2.  The governmental entity takes reasonable measures to
139remove and preserve portions of the material evidence sufficient
140to permit future DNA testing.
141     3.1.  The governmental entity notifies all of the following
142individuals of its intent to dispose of the evidence: the
143sentenced defendant, any counsel of record, the prosecuting
144authority, and the Attorney General.
145     4.2.  The notifying entity does not receive, within 180 90
146days after sending the notification, either a copy of a petition
147for postsentencing DNA testing filed pursuant to this section or
148a request that the evidence not be destroyed because the
149sentenced defendant will be filing the petition before the time
150for filing it has expired.
151     5.3.  No other provision of law or rule requires that the
152physical evidence be preserved or retained.
153     (5)  DNA identification of missing persons.--Each
154governmental entity in possession of any physical evidence in
155the case of a missing person or unidentified human remains shall
156be required to submit the DNA profiles obtained from the
157evidence to the National Missing Persons DNA Database of the
158Federal Bureau of Investigation.
159     (6)  System for reporting petitions.--
160     (a)  The Attorney General shall establish a system for
161reporting and tracking petitions filed in accordance with this
162section.
163     (b)  In operating the system established under paragraph
164(a), the state courts shall provide to the Attorney General any
165requested assistance in operating such a system and in ensuring
166the accuracy and completeness of information included in that
167system.
168     (c)  Not later than 2 years after the date of enactment of
169this act, the Attorney General shall submit a report to the
170Legislature that lists each petition filed under this section
171and the following information about each petition:
172     1.  Whether DNA testing was ordered.
173     2.  Whether the applicant obtained relief on the basis of
174DNA test results.
175     3.  Whether further proceedings occurred following a
176granting of relief and the outcome of such proceedings.
177     Section 11.  Section 925.12, Florida Statutes, is created
178to read:
179     925.12  Florida Commission on Innocence.-
180     (1)  As used in this section, the term "exoneration"
181includes any case in which:
182     (a)  The courts of this state or the Board of Executive
183Clemency have made a postconviction determination of actual
184innocence;
185     (b)  Postconviction DNA testing has led to a conviction
186being vacated, an indictment being dismissed, or an acquittal
187upon retrial;
188     (c)  A conviction has been reversed and vacated, an
189indictment dismissed, or a defendant was subsequently acquitted
190based on new evidence of innocence or other constitutional
191violation that calls into question the integrity of the judicial
192process; or
193     (d)  Any other postconviction vacation of conviction or
194dismissal of indictment that the Florida Commission on Innocence
195feels is appropriate to investigate.
196     (2)(a)  The Florida Commission on Innocence is hereby
197created.
198     (b)  The commission shall be composed of 12 members. The
199Chief Justice of the Supreme Court shall appoint one member, who
200will be the commission's presiding officer. The presiding
201officer shall appoint two members of the general public who do
202not have any legal, law enforcement, criminal justice, or
203forensic science background from a pool of applications
204submitted by members of the general public. The presiding
205officer shall also appoint two members of the academic
206community, one specializing in criminal justice and one
207specializing in forensic science. One member shall be appointed
208by the Florida Public Defenders Association. One member shall be
209appointed by the Florida Prosecuting Attorneys Association. The
210Criminal Courts Steering Committee shall appoint one member, who
211shall have experience in the judiciary or be a certified court
212mediator or arbitrator. One member shall be appointed by The
213Florida Bar. One member shall be appointed by the Governor. One
214member shall be appointed by the chair of the Democratic Caucus
215of the House of Representatives. One member shall be appointed
216by the chair of the Republican Caucus of the House of
217Representatives.
218     (c)  Each member shall serve a 2-year term.
219     (3)(a)  The commission shall thoroughly investigate:
220     1.  All postconviction exonerations, including convictions
221vacated based on a plea to time served, to:
222     a.  Ascertain what errors or defects, if any, occurred in
223the investigation, prosecution, defense, or judicial
224administration of the case that led to the wrongful conviction.
225     b.  Identify errors and defects in the criminal justice
226process in the state generally.
227     c.  Develop solutions to correct the identified errors and
228defects.
229     d.  Identify procedures and programs to prevent future
230wrongful convictions.
231     2.  Any colorable allegations that an innocent person has
232been executed.
233     (b)  The commission shall determine meeting frequency,
234place, and protocol, except that the commission shall not meet
235less than once per quarter.
236     (c)  The commission may enter contracts for research
237services it considers necessary to complete the investigation of
238a particular case, including forensic testing and autopsies.
239     (d)  The commission may administer oaths and issue
240subpoenas signed by the presiding officer to compel the
241production of documents and attendance of witnesses considered
242necessary to an investigation. A commission subpoena shall be
243served as provided in s. 48.031. On application of the
244commission, a circuit court shall compel compliance with a
245subpoena in the same manner as for circuit court subpoenas.
246     (4)(a)  The commission shall compile a detained annual
247report of its findings and recommendations, including any
248proposed legislation to implement procedures and programs to
249prevent future wrongful convictions, and present the report to
250the Chief Justice of the Supreme Court, the chair of the
251Democratic Caucus of the House of Representatives, and the chair
252of the Republican Caucus of the House of Representatives.
253     (b)  The report shall be available to the public upon
254request.
255     (c)  The findings and recommendations contained in the
256report may not be used as evidence in any subsequent civil or
257criminal proceeding.
258     (d)  Not later than the 60th day after the date of receipt
259of the report required by this subsection, the Chief Justice of
260the Supreme Court, the chair of the Democratic Caucus of the
261House of Representatives, and the chair of the Republican Caucus
262of the House of Representatives, singly or jointly, shall
263respond to the commission in writing concerning the findings and
264recommendations in the report.
265     (e)  The report and the responses may be used by the
266commission to request appropriate legislation or court rule as
267required.
268     (5)(a)  The commission shall receive an annual
269appropriation to cover copying, mailing, and meeting expenses;
270expert travel expenses and consulting fees; and contractor
271services for administrative or research needs.
272     (b)  Commission members shall donate their time, energy,
273and expertise. Expenses for per diem and travel by commission
274members may be reimbursed as provided in s. 112.061.
275     (6)  The initial appointments to the commission shall be
276made no later than 60 days after the effective date of this act.
277
278================ T I T L E  A M E N D M E N T =============
279     Remove line 24 and insert:
280revising a threshold date to conform; amending s. 925.11,
281F.S.; revising requirements for petitions for examination
282of evidence and postconviction DNA testing; requiring
283entry of DNA profile information into a national DNA index
284system; revising requirements for retention of DNA
285evidence; providing additional requirements for disposal
286of physical evidence; providing for DNA identification of
287missing persons; requiring a system for reporting and
288tracking specified motions; requiring a report; creating
289s. 925.12, F.S.; creating the Florida Commission on
290Innocence; defining the term "exoneration"; providing
291membership; providing terms of office; providing powers
292and duties; providing for a report and responses;
293providing for an annual appropriation to cover expenses;
294providing a deadline for initial appointments; reenacting
295s.


CODING: Words stricken are deletions; words underlined are additions.