| 1 | Representative Joyner offered the following: |
| 2 |
|
| 3 | Substitute Amendment for Amendment (336809) (with title |
| 4 | amendment) |
| 5 | Remove lines 37-39 and insert: |
| 6 | Section 2. Effective July 1, 2005, section 925.11, Florida |
| 7 | Statutes, is amended to read: |
| 8 | 925.11 Postsentencing DNA testing.-- |
| 9 | (1) Petition for examination.-- |
| 10 | (a) A person who is under a sentence of imprisonment or |
| 11 | death has been tried and found guilty of committing a crime and |
| 12 | has been sentenced by a court established by the laws of this |
| 13 | state may petition the that court to order the examination of |
| 14 | physical evidence collected at the time of the investigation of |
| 15 | the crime for which he or she has been sentenced that which may |
| 16 | contain DNA (deoxyribonucleic acid) and which would exonerate |
| 17 | that person or mitigate the sentence that person received. |
| 18 | (b) Except as provided in subparagraph 2., a petition for |
| 19 | postsentencing DNA testing may be filed or considered: |
| 20 | 1. Within 4 years following the date that the judgment and |
| 21 | sentence in the case becomes final if no direct appeal is taken, |
| 22 | within 4 years following the date that the conviction is |
| 23 | affirmed on direct appeal if an appeal is taken, within 4 years |
| 24 | following the date that collateral counsel is appointed or |
| 25 | retained subsequent to the conviction being affirmed on direct |
| 26 | appeal in a capital case, or by October 1, 2005, whichever |
| 27 | occurs later; or |
| 28 | 2. At any time if the facts on which the petition is |
| 29 | predicated were unknown to the petitioner or the petitioner's |
| 30 | attorney and could not have been ascertained by the exercise of |
| 31 | due diligence. |
| 32 | (2) Method for seeking postsentencing DNA testing.-- |
| 33 | (a) The petition for postsentencing DNA testing must be |
| 34 | made under oath by the sentenced defendant and must include the |
| 35 | following: |
| 36 | 1. A statement of the facts relied on in support of the |
| 37 | petition, including a description of the physical evidence |
| 38 | containing DNA to be tested and, if known, the present location |
| 39 | or the last known location of the evidence and how it was |
| 40 | originally obtained.; |
| 41 | 2. A statement that the evidence was not previously tested |
| 42 | for DNA or a statement that the sentenced defendant is |
| 43 | requesting DNA testing using a new method or technology that is |
| 44 | substantially more probative than the prior DNA testing. the |
| 45 | results of any previous DNA testing were inconclusive and that |
| 46 | subsequent scientific developments in DNA testing techniques |
| 47 | would likely produce a definitive result; |
| 48 | 3. A statement that the sentenced defendant is innocent |
| 49 | and how the DNA testing requested by the petition will exonerate |
| 50 | the defendant of the crime for which the defendant was sentenced |
| 51 | or will mitigate the sentence received by the defendant for that |
| 52 | crime.; |
| 53 | 4. If a trial was conducted, a statement that |
| 54 | identification of the defendant was is a genuinely disputed |
| 55 | issue in the trial. case, and why it is an issue; |
| 56 | 5. Any other facts relevant to the petition.; and |
| 57 | 6. A certificate that a copy of the petition has been |
| 58 | served on the prosecuting authority. |
| 59 | (b) Upon receiving the petition, the clerk of the court |
| 60 | shall file it and deliver the court file to the assigned judge. |
| 61 | (c) The court shall review the petition and deny it if it |
| 62 | is insufficient. If the petition is sufficient, the prosecuting |
| 63 | authority shall be ordered to respond to the petition within 30 |
| 64 | days. The court shall direct the prosecuting authority to take |
| 65 | measures and notify all relevant entities to preserve the |
| 66 | specific evidence relating to a petition under subsection (1). |
| 67 | (d) Upon receiving the response of the prosecuting |
| 68 | authority, the court shall review the response and enter an |
| 69 | order on the merits of the petition or set the petition for |
| 70 | hearing. |
| 71 | (e) Counsel may be appointed to assist the sentenced |
| 72 | defendant if the petition proceeds to a hearing and if the court |
| 73 | determines that the assistance of counsel is necessary and makes |
| 74 | the requisite finding of indigency. |
| 75 | (f) The court shall make the following findings when |
| 76 | ruling on the petition: |
| 77 | 1. Whether the sentenced defendant has shown that the |
| 78 | physical evidence that may contain DNA still exists.; |
| 79 | 2. Whether the results of DNA testing of that physical |
| 80 | evidence would be admissible at trial and whether there exists |
| 81 | reliable proof to establish that the evidence has not been |
| 82 | materially altered and would be admissible at a future hearing.; |
| 83 | and |
| 84 | 3. Whether there is a reasonable probability that the |
| 85 | sentenced defendant would have been acquitted or would have |
| 86 | received a lesser sentence if the DNA evidence had been admitted |
| 87 | at trial. |
| 88 | (g) If the court orders DNA testing of the physical |
| 89 | evidence, the cost of such testing may be assessed against the |
| 90 | sentenced defendant unless he or she is indigent. If the |
| 91 | sentenced defendant is indigent, the state shall bear the cost |
| 92 | of the DNA testing ordered by the court. |
| 93 | (h) Any DNA testing ordered by the court shall be carried |
| 94 | out by the Department of Law Enforcement or its designee, as |
| 95 | provided in s. 943.3251. |
| 96 | (i) The results of the DNA testing ordered by the court |
| 97 | shall be provided to the court, the sentenced defendant, and the |
| 98 | prosecuting authority. The prosecuting authority shall enter any |
| 99 | DNA profile found into the National DNA Index System. If the DNA |
| 100 | test results exclude the petitioner, then the petitioner's DNA |
| 101 | reference sample must be destroyed. |
| 102 | (3) Right to appeal; rehearing.-- |
| 103 | (a) An appeal from the court's order on the petition for |
| 104 | postsentencing DNA testing may be taken by any adversely |
| 105 | affected party. |
| 106 | (b) An order denying relief shall include a statement that |
| 107 | the sentenced defendant has the right to appeal within 30 days |
| 108 | after the order denying relief is entered. |
| 109 | (c) The sentenced defendant may file a motion for |
| 110 | rehearing of any order denying relief within 15 days after |
| 111 | service of the order denying relief. The time for filing an |
| 112 | appeal shall be tolled until an order on the motion for |
| 113 | rehearing has been entered. |
| 114 | (d) The clerk of the court shall serve on all parties a |
| 115 | copy of any order rendered with a certificate of service, |
| 116 | including the date of service. |
| 117 | (4) Preservation of evidence.-- |
| 118 | (a) Governmental entities that may be in possession of any |
| 119 | physical evidence in the case, including, but not limited to, |
| 120 | any investigating law enforcement agency, the clerk of the |
| 121 | court, the prosecuting authority, or the Department of Law |
| 122 | Enforcement shall maintain any physical evidence collected at |
| 123 | the time of the crime for which a postsentencing testing of DNA |
| 124 | may be requested. |
| 125 | (b) Except for a case in which the death penalty is |
| 126 | imposed, the evidence shall be maintained for at least the |
| 127 | period of time a person is incarcerated for the crime in |
| 128 | connection with which the evidence was collected set forth in |
| 129 | subparagraph (1)(b)1. In a case in which the death penalty is |
| 130 | imposed, the evidence shall be maintained for 60 days after |
| 131 | execution of the sentence. |
| 132 | (c) A governmental entity may dispose of the physical |
| 133 | evidence before the expiration of the period of time set forth |
| 134 | in paragraph (1)(b) if all of the conditions set forth below are |
| 135 | met: |
| 136 | 1. The evidence must be returned to its rightful owner or |
| 137 | is of such a size, bulk, or physical character as to render |
| 138 | retention impracticable. |
| 139 | 2. The governmental entity takes reasonable measures to |
| 140 | remove and preserve portions of the material evidence sufficient |
| 141 | to permit future DNA testing. |
| 142 | 3.1. The governmental entity notifies all of the following |
| 143 | individuals of its intent to dispose of the evidence: the |
| 144 | sentenced defendant, any counsel of record, the prosecuting |
| 145 | authority, and the Attorney General. |
| 146 | 4.2. The notifying entity does not receive, within 180 90 |
| 147 | days after sending the notification, either a copy of a petition |
| 148 | for postsentencing DNA testing filed pursuant to this section or |
| 149 | a request that the evidence not be destroyed because the |
| 150 | sentenced defendant will be filing the petition before the time |
| 151 | for filing it has expired. |
| 152 | 5.3. No other provision of law or rule requires that the |
| 153 | physical evidence be preserved or retained. |
| 154 | (5) DNA identification of missing persons.--Each |
| 155 | governmental entity in possession of any physical evidence in |
| 156 | the case of a missing person or unidentified human remains shall |
| 157 | be required to submit the DNA profiles obtained from the |
| 158 | evidence to the National Missing Persons DNA Database of the |
| 159 | Federal Bureau of Investigation. |
| 160 | (6) System for reporting petitions.-- |
| 161 | (a) The Attorney General shall establish a system for |
| 162 | reporting and tracking petitions filed in accordance with this |
| 163 | section. |
| 164 | (b) In operating the system established under paragraph |
| 165 | (a), the state courts shall provide to the Attorney General any |
| 166 | requested assistance in operating such a system and in ensuring |
| 167 | the accuracy and completeness of information included in that |
| 168 | system. |
| 169 | (c) Not later than 2 years after the date of enactment of |
| 170 | this act, the Attorney General shall submit a report to the |
| 171 | Legislature that lists each petition filed under this section |
| 172 | and the following information about each petition: |
| 173 | 1. Whether DNA testing was ordered. |
| 174 | 2. Whether the applicant obtained relief on the basis of |
| 175 | DNA test results. |
| 176 | 3. Whether further proceedings occurred following a |
| 177 | granting of relief and the outcome of such proceedings. |
| 178 | Section 3. Effective July 1, 2005, section 925.12, Florida |
| 179 | Statutes, is created to read: |
| 180 | 925.12 Florida Commission on Innocence.-- |
| 181 | (1) As used in this section, the term "exoneration" |
| 182 | includes any case in which: |
| 183 | (a) The courts of this state or the Board of Executive |
| 184 | Clemency have made a postconviction determination of actual |
| 185 | innocence; |
| 186 | (b) Postconviction DNA testing has led to a conviction |
| 187 | being vacated, an indictment being dismissed, or an acquittal |
| 188 | upon retrial; |
| 189 | (c) A conviction has been reversed and vacated, an |
| 190 | indictment dismissed, or a defendant was subsequently acquitted |
| 191 | based on new evidence of innocence or other constitutional |
| 192 | violation that calls into question the integrity of the judicial |
| 193 | process; or |
| 194 | (d) Any other postconviction vacation of conviction or |
| 195 | dismissal of indictment that the Florida Commission on Innocence |
| 196 | feels is appropriate to investigate. |
| 197 | (2)(a) The Florida Commission on Innocence is hereby |
| 198 | created. |
| 199 | (b) The commission shall be composed of 12 members. The |
| 200 | Chief Justice of the Supreme Court shall appoint one member, who |
| 201 | will be the commission's presiding officer. The presiding |
| 202 | officer shall appoint two members of the general public who do |
| 203 | not have any legal, law enforcement, criminal justice, or |
| 204 | forensic science background from a pool of applications |
| 205 | submitted by members of the general public. The presiding |
| 206 | officer shall also appoint two members of the academic |
| 207 | community, one specializing in criminal justice and one |
| 208 | specializing in forensic science. One member shall be appointed |
| 209 | by the Florida Public Defenders Association. One member shall be |
| 210 | appointed by the Florida Prosecuting Attorneys Association. The |
| 211 | Criminal Courts Steering Committee shall appoint one member, who |
| 212 | shall have experience in the judiciary or be a certified court |
| 213 | mediator or arbitrator. One member shall be appointed by The |
| 214 | Florida Bar. One member shall be appointed by the Governor. One |
| 215 | member shall be appointed by the chair of the Democratic Caucus |
| 216 | of the House of Representatives. One member shall be appointed |
| 217 | by the chair of the Republican Caucus of the House of |
| 218 | Representatives. |
| 219 | (c) Each member shall serve a 2-year term. |
| 220 | (3)(a) The commission shall thoroughly investigate: |
| 221 | 1. All postconviction exonerations, including convictions |
| 222 | vacated based on a plea to time served, to: |
| 223 | a. Ascertain what errors or defects, if any, occurred in |
| 224 | the investigation, prosecution, defense, or judicial |
| 225 | administration of the case that led to the wrongful conviction. |
| 226 | b. Identify errors and defects in the criminal justice |
| 227 | process in the state generally. |
| 228 | c. Develop solutions to correct the identified errors and |
| 229 | defects. |
| 230 | d. Identify procedures and programs to prevent future |
| 231 | wrongful convictions. |
| 232 | 2. Any colorable allegations that an innocent person has |
| 233 | been executed. |
| 234 | (b) The commission shall determine meeting frequency, |
| 235 | place, and protocol, except that the commission shall not meet |
| 236 | less than once per quarter. |
| 237 | (c) The commission may enter contracts for research |
| 238 | services it considers necessary to complete the investigation of |
| 239 | a particular case, including forensic testing and autopsies. |
| 240 | (d) The commission may administer oaths and issue |
| 241 | subpoenas signed by the presiding officer to compel the |
| 242 | production of documents and attendance of witnesses considered |
| 243 | necessary to an investigation. A commission subpoena shall be |
| 244 | served as provided in s. 48.031. On application of the |
| 245 | commission, a circuit court shall compel compliance with a |
| 246 | subpoena in the same manner as for circuit court subpoenas. |
| 247 | (4)(a) The commission shall compile a detained annual |
| 248 | report of its findings and recommendations, including any |
| 249 | proposed legislation to implement procedures and programs to |
| 250 | prevent future wrongful convictions, and present the report to |
| 251 | the Chief Justice of the Supreme Court, the chair of the |
| 252 | Democratic Caucus of the House of Representatives, and the chair |
| 253 | of the Republican Caucus of the House of Representatives. |
| 254 | (b) The report shall be available to the public upon |
| 255 | request. |
| 256 | (c) The findings and recommendations contained in the |
| 257 | report may not be used as evidence in any subsequent civil or |
| 258 | criminal proceeding. |
| 259 | (d) Not later than the 60th day after the date of receipt |
| 260 | of the report required by this subsection, the Chief Justice of |
| 261 | the Supreme Court, the chair of the Democratic Caucus of the |
| 262 | House of Representatives, and the chair of the Republican Caucus |
| 263 | of the House of Representatives, singly or jointly, shall |
| 264 | respond to the commission in writing concerning the findings and |
| 265 | recommendations in the report. |
| 266 | (e) The report and the responses may be used by the |
| 267 | commission to request appropriate legislation or court rule as |
| 268 | required. |
| 269 | (5)(a) The commission shall receive an annual |
| 270 | appropriation to cover copying, mailing, and meeting expenses; |
| 271 | expert travel expenses and consulting fees; and contractor |
| 272 | services for administrative or research needs. |
| 273 | (b) Commission members shall donate their time, energy, |
| 274 | and expertise. Expenses for per diem and travel by commission |
| 275 | members may be reimbursed as provided in s. 112.061. |
| 276 | (6) The initial appointments to the commission shall be |
| 277 | made no later than 60 days after the effective date of this |
| 278 | section. |
| 279 | Section 4. Except as otherwise provided herein, this act |
| 280 | shall take effect upon becoming a law. The repeal of Rule 3.203, |
| 281 | Florida Rules of Criminal Procedure, in this act shall take |
| 282 | effect only if this act is enacted by a two-thirds vote of the |
| 283 | membership of each house of the Legislature. |
| 284 |
|
| 285 | ================ T I T L E A M E N D M E N T ============= |
| 286 | Remove lines 2-5 and insert: |
| 287 |
|
| 288 | An act relating to criminal law; repealing Rule 3.203, |
| 289 | Florida Rules of Criminal Procedure, relating to |
| 290 | imposition of the death penalty; amending s. 925.11, F.S.; |
| 291 | revising requirements for petitions for examination of |
| 292 | evidence and postconviction DNA testing; requiring entry |
| 293 | of DNA profile information into a national DNA index |
| 294 | system; revising requirements for retention of DNA |
| 295 | evidence; providing additional requirements for disposal |
| 296 | of physical evidence; providing for DNA identification of |
| 297 | missing persons; requiring a system for reporting and |
| 298 | tracking specified motions; requiring a report; creating |
| 299 | s. 925.12, F.S.; creating the Florida Commission on |
| 300 | Innocence; defining the term "exoneration"; providing |
| 301 | membership; providing terms of office; providing powers |
| 302 | and duties; providing for a report and responses; |
| 303 | providing for an annual appropriation to cover expenses; |
| 304 | providing a deadline for initial appointments; providing |
| 305 | effective dates. |