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
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 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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