Florida Senate - 2006 SENATOR AMENDMENT
Bill No. SB 186
Barcode 643784
CHAMBER ACTION
Senate House
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05/02/2006 05:35 PM .
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11 Senator Villalobos moved the following amendment:
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13 Senate Amendment (with title amendment)
14 Delete everything after the enacting clause
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16 and insert:
17 Section 1. Section 925.11, Florida Statutes, is
18 amended to read:
19 925.11 Postsentencing DNA testing.--
20 (1) PETITION FOR EXAMINATION.--
21 (a)1. A person who has been tried and found guilty of
22 committing a felony crime and has been sentenced by a court
23 established by the laws of this state may petition that court
24 to order the examination of physical evidence collected at the
25 time of the investigation of the crime for which he or she has
26 been sentenced which may contain DNA (deoxyribonucleic acid)
27 and which would exonerate that person or mitigate the sentence
28 that person received.
29 2. A person who has entered a plea of guilty or nolo
30 contendere to a felony prior to July 1, 2006, and has been
31 sentenced by a court established by the laws of this state may
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Florida Senate - 2006 SENATOR AMENDMENT
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1 petition that court to order the examination of physical
2 evidence collected at the time of the investigation of the
3 crime for which he or she has been sentenced that may contain
4 DNA (deoxyribonucleic acid) and that would exonerate that
5 person.
6 (b) A petition for postsentencing DNA testing under
7 paragraph (a) may be filed or considered at any time following
8 the date that the judgment and sentence in the case becomes
9 final. Except as provided in subparagraph 2., a petition for
10 postsentencing DNA testing may be filed or considered:
11 1. Within 4 years following the date that the judgment
12 and sentence in the case becomes final if no direct appeal is
13 taken, within 4 years following the date that the conviction
14 is affirmed on direct appeal if an appeal is taken, within 4
15 years following the date that collateral counsel is appointed
16 or retained subsequent to the conviction being affirmed on
17 direct appeal in a capital case, or by October 1, 2005,
18 whichever occurs later; or
19 2. At any time if the facts on which the petition is
20 predicated were unknown to the petitioner or the petitioner's
21 attorney and could not have been ascertained by the exercise
22 of due diligence.
23 (2) METHOD FOR SEEKING POSTSENTENCING DNA TESTING.--
24 (a) The petition for postsentencing DNA testing must
25 be made under oath by the sentenced defendant and must include
26 the following:
27 1. A statement of the facts relied on in support of
28 the petition, including a description of the physical evidence
29 containing DNA to be tested and, if known, the present
30 location or the last known location of the evidence and how it
31 was originally obtained;
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Florida Senate - 2006 SENATOR AMENDMENT
Bill No. SB 186
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1 2. A statement that the evidence was not previously
2 tested for DNA or a statement that the results of any previous
3 DNA testing were inconclusive and that subsequent scientific
4 developments in DNA testing techniques would likely produce a
5 definitive result establishing that the petitioner is not the
6 person who committed the crime;
7 3. A statement that the sentenced defendant is
8 innocent and how the DNA testing requested by the petition
9 will exonerate the defendant of the crime for which the
10 defendant was sentenced or will mitigate the sentence received
11 by the defendant for that crime;
12 4. A statement that identification of the defendant is
13 a genuinely disputed issue in the case, and why it is an
14 issue;
15 5. Any other facts relevant to the petition; and
16 6. A certificate that a copy of the petition has been
17 served on the prosecuting authority.
18 (b) Upon receiving the petition, the clerk of the
19 court shall file it and deliver the court file to the assigned
20 judge.
21 (c) The court shall review the petition and deny it if
22 it is insufficient. If the petition is sufficient, the
23 prosecuting authority shall be ordered to respond to the
24 petition within 30 days.
25 (d) Upon receiving the response of the prosecuting
26 authority, the court shall review the response and enter an
27 order on the merits of the petition or set the petition for
28 hearing.
29 (e) Counsel may be appointed to assist the sentenced
30 defendant if the petition proceeds to a hearing and if the
31 court determines that the assistance of counsel is necessary
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1 and makes the requisite finding of indigency.
2 (f) The court shall make the following findings when
3 ruling on the petition:
4 1. Whether the sentenced defendant has shown that the
5 physical evidence that may contain DNA still exists;
6 2. Whether the results of DNA testing of that physical
7 evidence would be admissible at trial and whether there exists
8 reliable proof to establish that the evidence has not been
9 materially altered and would be admissible at a future
10 hearing; and
11 3. Whether there is a reasonable probability that the
12 sentenced defendant would have been acquitted or would have
13 received a lesser sentence if the DNA evidence had been
14 admitted at trial.
15 (g) If the court orders DNA testing of the physical
16 evidence, the cost of such testing may be assessed against the
17 sentenced defendant unless he or she is indigent. If the
18 sentenced defendant is indigent, the state shall bear the cost
19 of the DNA testing ordered by the court.
20 (h) Any DNA testing ordered by the court shall be
21 carried out by the Department of Law Enforcement or its
22 designee, as provided in s. 943.3251.
23 (i) The results of the DNA testing ordered by the
24 court shall be provided to the court, the sentenced defendant,
25 and the prosecuting authority.
26 (3) RIGHT TO APPEAL; REHEARING.--
27 (a) An appeal from the court's order on the petition
28 for postsentencing DNA testing may be taken by any adversely
29 affected party.
30 (b) An order denying relief shall include a statement
31 that the sentenced defendant has the right to appeal within 30
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1 days after the order denying relief is entered.
2 (c) The sentenced defendant may file a motion for
3 rehearing of any order denying relief within 15 days after
4 service of the order denying relief. The time for filing an
5 appeal shall be tolled until an order on the motion for
6 rehearing has been entered.
7 (d) The clerk of the court shall serve on all parties
8 a copy of any order rendered with a certificate of service,
9 including the date of service.
10 (4) PRESERVATION OF EVIDENCE.--
11 (a) Governmental entities that may be in possession of
12 any physical evidence in the case, including, but not limited
13 to, any investigating law enforcement agency, the clerk of the
14 court, the prosecuting authority, or the Department of Law
15 Enforcement shall maintain any physical evidence collected at
16 the time of the crime for which a postsentencing testing of
17 DNA may be requested.
18 (b) Except for a case in which the death penalty is
19 imposed, the evidence shall be maintained for at least the
20 period of time set forth in subparagraph (1)(b)1. In a case in
21 which the death penalty is imposed, the evidence shall be
22 maintained for 60 days after execution of the sentence. In all
23 other cases, a governmental entity may dispose of the physical
24 evidence if the term of the sentence imposed in the case has
25 expired and
26 (c) A governmental entity may dispose of the physical
27 evidence before the expiration of the period of time set forth
28 in paragraph (1)(b) if all of the conditions set forth below
29 are met.
30 1. The governmental entity notifies all of the
31 following individuals of its intent to dispose of the
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1 evidence: the sentenced defendant, any counsel of record, the
2 prosecuting authority, and the Attorney General.
3 2. The notifying entity does not receive, within 90
4 days after sending the notification, either a copy of a
5 petition for postsentencing DNA testing filed pursuant to this
6 section or a request that the evidence not be destroyed
7 because the sentenced defendant will be filing the petition
8 before the time for filing it has expired.
9 3. no other provision of law or rule requires that the
10 physical evidence be preserved or retained.
11 Section 2. Section 925.12, Florida Statutes, is
12 created to read:
13 925.12 DNA testing; defendants entering pleas.--
14 (1) For defendants who have entered a plea of guilty
15 or nolo contendere to a felony on or after July 1, 2006, a
16 defendant may petition for postsentencing DNA testing under s.
17 925.11 under the following circumstances:
18 (a) The facts on which the petition is predicated were
19 unknown to the petitioner or the petitioner's attorney at the
20 time the plea was entered and could not have been ascertained
21 by the exercise of due diligence; or
22 (b) The physical evidence for which DNA testing is
23 sought was not disclosed to the defense by the state prior to
24 the entry of the plea by the petitioner.
25 (2) For defendants seeking to enter a plea of guilty
26 or nolo contendere to a felony on or after July 1, 2006, the
27 court shall inquire of the defendant and of counsel for the
28 defendant and the state as to physical evidence containing DNA
29 known to exist that could exonerate the defendant prior to
30 accepting a plea of guilty or nolo contendere. If no physical
31 evidence containing DNA that could exonerate the defendant is
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Florida Senate - 2006 SENATOR AMENDMENT
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1 known to exist, the court may proceed with consideration of
2 accepting the plea. If physical evidence containing DNA that
3 could exonerate the defendant is known to exist, the court may
4 postpone the proceeding on the defendant's behalf and order
5 DNA testing upon motion of counsel specifying the physical
6 evidence to be tested.
7 (3) It is the intent of the Legislature that the
8 Supreme Court adopt rules of procedure consistent with this
9 section for a court, prior to the acceptance of a plea, to
10 make an inquiry into the following matters:
11 (a) Whether counsel for the defense has reviewed the
12 discovery disclosed by the state and whether such discovery
13 included a listing or description of physical items of
14 evidence.
15 (b) Whether the nature of the evidence against the
16 defendant disclosed through discovery has been reviewed with
17 the defendant.
18 (c) Whether the defendant or counsel for the defendant
19 is aware of any physical evidence disclosed by the state for
20 which DNA testing may exonerate the defendant.
21 (d) Whether the state is aware of any physical
22 evidence for which DNA testing may exonerate the defendant.
23 (4) It is the intent of the Legislature that the
24 postponement of the proceedings by the court on the
25 defendant's behalf under subsection (2) constitute an
26 extension attributable to the defendant for purposes of the
27 defendant's right to a speedy trial.
28 Section 3. Rule 3.853, Florida Rules of Criminal
29 Procedure, is repealed to the extent it is inconsistent with
30 this act.
31 Section 4. This act shall take effect upon becoming a
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Florida Senate - 2006 SENATOR AMENDMENT
Bill No. SB 186
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1 law and shall apply retroactively to October 1, 2005; but
2 section 3 shall take effect only if this act is passed by the
3 affirmative vote of two-thirds of the membership of each house
4 of the Legislature.
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7 ================ T I T L E A M E N D M E N T ===============
8 And the title is amended as follows:
9 Delete everything before the enacting clause
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11 and insert:
12 A bill to be entitled
13 An act relating to the testing of DNA evidence;
14 amending s. 925.11, F.S.; revising the
15 circumstances under which a person who has been
16 sentenced for committing a felony may petition
17 the court for postsentencing testing of DNA
18 evidence; abolishing certain time limitations
19 imposed upon such testing; revising
20 requirements regarding submittal and review of
21 a petition; authorizing a governmental entity
22 to dispose of physical evidence if the sentence
23 imposed has expired and another law or rule
24 does not require that the evidence be retained;
25 creating s. 925.12, F.S.; providing for
26 postsentencing DNA testing under specified
27 circumstances; requiring a court to make
28 specified inquiries of a defendant seeking to
29 enter a plea of guilty or nolo contendere to a
30 felony; providing legislative intent that the
31 Supreme Court adopt certain rules; providing
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1 that a postponement for specified reasons be
2 considered attributable to the defendant for
3 speedy trial purposes; repealing a specified
4 Florida Rule of Criminal Procedure; providing
5 retroactive and certain contingent effect;
6 providing effective dates.
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