Senate Bill sb0186
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    Florida Senate - 2006        (Corrected Copy)           SB 186
    By Senator Villalobos
    38-248-06
  1                      A bill to be entitled
  2         An act relating to the postsentence testing of
  3         DNA evidence; amending s. 925.11, F.S.;
  4         revising the circumstances under which a person
  5         who has been sentenced for committing a felony
  6         may petition the court for postsentence testing
  7         of DNA evidence; abolishing certain time
  8         limitations imposed upon such testing;
  9         authorizing a governmental entity to dispose of
10         physical evidence if the sentence imposed has
11         expired and another law or rule does not
12         require that the evidence be retained;
13         providing for retroactive application;
14         providing an effective date.
15  
16  Be It Enacted by the Legislature of the State of Florida:
17  
18         Section 1.  Section 925.11, Florida Statutes, is
19  amended to read:
20         925.11  Postsentencing DNA testing.--
21         (1)  Petition for examination.--
22         (a)  A person who has been convicted of a felony and
23  sentenced for committing that offense tried and found guilty
24  of 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 or mitigate the sentence
30  that person received.
31  
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    Florida Senate - 2006        (Corrected Copy)           SB 186
    38-248-06
 1         (b)  A petition for postsentencing DNA testing may be
 2  filed or considered at any time following the date that the
 3  judgment and sentence in the case becomes final. Except as
 4  provided in subparagraph 2., a petition for postsentencing DNA
 5  testing may be filed or considered:
 6         1.  Within 4 years following the date that the judgment
 7  and sentence in the case becomes final if no direct appeal is
 8  taken, within 4 years following the date that the conviction
 9  is affirmed on direct appeal if an appeal is taken, within 4
10  years following the date that collateral counsel is appointed
11  or retained subsequent to the conviction being affirmed on
12  direct appeal in a capital case, or by October 1, 2005,
13  whichever occurs later; or
14         2.  At any time if the facts on which the petition is
15  predicated were unknown to the petitioner or the petitioner's
16  attorney and could not have been ascertained by the exercise
17  of due diligence.
18         (2)  Method for seeking postsentencing DNA testing.--
19         (a)  The petition for postsentencing DNA testing must
20  be made under oath by the sentenced defendant and must include
21  the following:
22         1.  A statement of the facts relied on in support of
23  the petition, including a description of the physical evidence
24  containing DNA to be tested and, if known, the present
25  location or the last known location of the evidence and how it
26  was originally obtained;
27         2.  A statement that the evidence was not previously
28  tested for DNA or a statement that the results of any previous
29  DNA testing were inconclusive and that subsequent scientific
30  developments in DNA testing techniques would likely produce a
31  definitive result;
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    Florida Senate - 2006        (Corrected Copy)           SB 186
    38-248-06
 1         3.  A statement that the sentenced defendant is
 2  innocent and how the DNA testing requested by the petition
 3  will exonerate the defendant of the crime for which the
 4  defendant was sentenced or will mitigate the sentence received
 5  by the defendant for that crime;
 6         4.  A statement that identification of the defendant is
 7  a genuinely disputed issue in the case, and why it is an
 8  issue;
 9         5.  Any other facts relevant to the petition; and
10         6.  A certificate that a copy of the petition has been
11  served on the prosecuting authority.
12         (b)  Upon receiving the petition, the clerk of the
13  court shall file it and deliver the court file to the assigned
14  judge.
15         (c)  The court shall review the petition and deny it if
16  it is insufficient. If the petition is sufficient, the
17  prosecuting authority shall be ordered to respond to the
18  petition within 30 days.
19         (d)  Upon receiving the response of the prosecuting
20  authority, the court shall review the response and enter an
21  order on the merits of the petition or set the petition for
22  hearing.
23         (e)  Counsel may be appointed to assist the sentenced
24  defendant if the petition proceeds to a hearing and if the
25  court determines that the assistance of counsel is necessary
26  and makes the requisite finding of indigency.
27         (f)  The court shall make the following findings when
28  ruling on the petition:
29         1.  Whether the sentenced defendant has shown that the
30  physical evidence that may contain DNA still exists;
31  
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    Florida Senate - 2006        (Corrected Copy)           SB 186
    38-248-06
 1         2.  Whether the results of DNA testing of that physical
 2  evidence would be admissible at trial and whether there exists
 3  reliable proof to establish that the evidence has not been
 4  materially altered and would be admissible at a future
 5  hearing; and
 6         3.  Whether there is a reasonable probability that the
 7  sentenced defendant would have been acquitted or would have
 8  received a lesser sentence if the DNA evidence had been
 9  admitted at trial.
10         (g)  If the court orders DNA testing of the physical
11  evidence, the cost of such testing may be assessed against the
12  sentenced defendant unless he or she is indigent. If the
13  sentenced defendant is indigent, the state shall bear the cost
14  of the DNA testing ordered by the court.
15         (h)  Any DNA testing ordered by the court shall be
16  carried out by the Department of Law Enforcement or its
17  designee, as provided in s. 943.3251.
18         (i)  The results of the DNA testing ordered by the
19  court shall be provided to the court, the sentenced defendant,
20  and the prosecuting authority.
21         (3)  Right to appeal; rehearing.--
22         (a)  An appeal from the court's order on the petition
23  for postsentencing DNA testing may be taken by any adversely
24  affected party.
25         (b)  An order denying relief shall include a statement
26  that the sentenced defendant has the right to appeal within 30
27  days after the order denying relief is entered.
28         (c)  The sentenced defendant may file a motion for
29  rehearing of any order denying relief within 15 days after
30  service of the order denying relief. The time for filing an
31  
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    Florida Senate - 2006        (Corrected Copy)           SB 186
    38-248-06
 1  appeal shall be tolled until an order on the motion for
 2  rehearing has been entered.
 3         (d)  The clerk of the court shall serve on all parties
 4  a copy of any order rendered with a certificate of service,
 5  including the date of service.
 6         (4)  Preservation of evidence.--
 7         (a)  Governmental entities that may be in possession of
 8  any physical evidence in the case, including, but not limited
 9  to, any investigating law enforcement agency, the clerk of the
10  court, the prosecuting authority, or the Department of Law
11  Enforcement shall maintain any physical evidence collected at
12  the time of the crime for which a postsentencing testing of
13  DNA may be requested.
14         (b)  Except for a case in which the death penalty is
15  imposed, the evidence shall be maintained for at least the
16  period of time set forth in subparagraph (1)(b)1. In a case in
17  which the death penalty is imposed, the evidence shall be
18  maintained for 60 days after execution of the sentence. In all
19  other cases, a governmental entity may dispose of the physical
20  evidence if the term of the sentence imposed in the case has
21  expired and
22         (c)  A governmental entity may dispose of the physical
23  evidence before the expiration of the period of time set forth
24  in paragraph (1)(b) if all of the conditions set forth below
25  are met.
26         1.  The governmental entity notifies all of the
27  following individuals of its intent to dispose of the
28  evidence: the sentenced defendant, any counsel of record, the
29  prosecuting authority, and the Attorney General.
30         2.  The notifying entity does not receive, within 90
31  days after sending the notification, either a copy of a
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    Florida Senate - 2006        (Corrected Copy)           SB 186
    38-248-06
 1  petition for postsentencing DNA testing filed pursuant to this
 2  section or a request that the evidence not be destroyed
 3  because the sentenced defendant will be filing the petition
 4  before the time for filing it has expired.
 5         3.  no other provision of law or rule requires that the
 6  physical evidence be preserved or retained.
 7         Section 2.  This act shall take effect upon becoming a
 8  law, and shall apply retroactively to October 1, 2005.
 9  
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11                          SENATE SUMMARY
12    Removes the time limitation for filing a petition for
      postsentence testing of DNA evidence. Authorizes the
13    disposal of physical evidence if the sentence imposed has
      expired and another law or rule does not require that the
14    evidence be retained.
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