| 1 | Representatives Quinones and Bogdanoff offered the following: |
| 2 |
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| 3 | Amendment (with title amendment) |
| 4 | Remove lines 57-249 and insert: |
| 5 | that which would exonerate that person or mitigate the sentence |
| 6 | that person received. |
| 7 | 2. A person who has entered a plea of guilty or nolo |
| 8 | contendere to a felony prior to July 1, 2006, and has been |
| 9 | sentenced by a court established by the laws of this state may |
| 10 | petition that court to order the examination of physical |
| 11 | evidence collected at the time of the investigation of the crime |
| 12 | for which he or she has been sentenced that may contain DNA |
| 13 | (deoxyribonucleic acid) and that would exonerate that person. |
| 14 | (b) A petition for postsentencing DNA testing under |
| 15 | paragraph (a) may be filed or considered at any time following |
| 16 | the date that the judgment and sentence in the case becomes |
| 17 | final. Except as provided in subparagraph 2., a petition for |
| 18 | postsentencing DNA testing may be filed or considered: |
| 19 | 1. Within 4 years following the date that the judgment and |
| 20 | sentence in the case becomes final if no direct appeal is taken, |
| 21 | within 4 years following the date that the conviction is |
| 22 | affirmed on direct appeal if an appeal is taken, within 4 years |
| 23 | following the date that collateral counsel is appointed or |
| 24 | retained subsequent to the conviction being affirmed on direct |
| 25 | appeal in a capital case, or by October 1, 2005, whichever |
| 26 | occurs later; or |
| 27 | 2. At any time if the facts on which the petition is |
| 28 | predicated were unknown to the petitioner or the petitioner's |
| 29 | attorney and could not have been ascertained by the exercise of |
| 30 | due diligence. |
| 31 | (2) METHOD FOR SEEKING POSTSENTENCING DNA TESTING.-- |
| 32 | (a) The petition for postsentencing DNA testing must be |
| 33 | made under oath by the sentenced defendant and must include the |
| 34 | following: |
| 35 | 1. A statement of the facts relied on in support of the |
| 36 | petition, including a description of the physical evidence |
| 37 | containing DNA to be tested and, if known, the present location |
| 38 | or the last known location of the evidence and how it was |
| 39 | originally obtained; |
| 40 | 2. A statement that the evidence was not previously tested |
| 41 | for DNA or a statement that the results of any previous DNA |
| 42 | testing were inconclusive and that subsequent scientific |
| 43 | developments in DNA testing techniques would likely produce a |
| 44 | definitive result establishing that the petitioner is not the |
| 45 | person who committed the crime; |
| 46 | 3. A statement that the sentenced defendant is innocent |
| 47 | and how the DNA testing requested by the petition will exonerate |
| 48 | the defendant of the crime for which the defendant was sentenced |
| 49 | or will mitigate the sentence received by the defendant for that |
| 50 | crime; |
| 51 | 4. A statement that identification of the defendant is a |
| 52 | genuinely disputed issue in the case, and why it is an issue; |
| 53 | 5. Any other facts relevant to the petition; and |
| 54 | 6. A certificate that a copy of the petition has been |
| 55 | served on the prosecuting authority. |
| 56 | (b) Upon receiving the petition, the clerk of the court |
| 57 | shall file it and deliver the court file to the assigned judge. |
| 58 | (c) The court shall review the petition and deny it if it |
| 59 | is insufficient. If the petition is sufficient, the prosecuting |
| 60 | authority shall be ordered to respond to the petition within 30 |
| 61 | days. |
| 62 | (d) Upon receiving the response of the prosecuting |
| 63 | authority, the court shall review the response and enter an |
| 64 | order on the merits of the petition or set the petition for |
| 65 | hearing. |
| 66 | (e) Counsel may be appointed to assist the sentenced |
| 67 | defendant if the petition proceeds to a hearing and if the court |
| 68 | determines that the assistance of counsel is necessary and makes |
| 69 | the requisite finding of indigency. |
| 70 | (f) The court shall make the following findings when |
| 71 | ruling on the petition: |
| 72 | 1. Whether the sentenced defendant has shown that the |
| 73 | physical evidence that may contain DNA still exists; |
| 74 | 2. Whether the results of DNA testing of that physical |
| 75 | evidence would be admissible at trial and whether there exists |
| 76 | reliable proof to establish that the evidence has not been |
| 77 | materially altered and would be admissible at a future hearing; |
| 78 | and |
| 79 | 3. Whether there is a reasonable probability that the |
| 80 | sentenced defendant would have been acquitted or would have |
| 81 | received a lesser sentence if the DNA evidence had been admitted |
| 82 | at trial. |
| 83 | (g) If the court orders DNA testing of the physical |
| 84 | evidence, the cost of such testing may be assessed against the |
| 85 | sentenced defendant unless he or she is indigent. If the |
| 86 | sentenced defendant is indigent, the state shall bear the cost |
| 87 | of the DNA testing ordered by the court. |
| 88 | (h) Any DNA testing ordered by the court shall be carried |
| 89 | out by the Department of Law Enforcement or its designee, as |
| 90 | provided in s. 943.3251. |
| 91 | (i) The results of the DNA testing ordered by the court |
| 92 | shall be provided to the court, the sentenced defendant, and the |
| 93 | prosecuting authority. |
| 94 | (3) RIGHT TO APPEAL; REHEARING.-- |
| 95 | (a) An appeal from the court's order on the petition for |
| 96 | postsentencing DNA testing may be taken by any adversely |
| 97 | affected party. |
| 98 | (b) An order denying relief shall include a statement that |
| 99 | the sentenced defendant has the right to appeal within 30 days |
| 100 | after the order denying relief is entered. |
| 101 | (c) The sentenced defendant may file a motion for |
| 102 | rehearing of any order denying relief within 15 days after |
| 103 | service of the order denying relief. The time for filing an |
| 104 | appeal shall be tolled until an order on the motion for |
| 105 | rehearing has been entered. |
| 106 | (d) The clerk of the court shall serve on all parties a |
| 107 | copy of any order rendered with a certificate of service, |
| 108 | including the date of service. |
| 109 | (4) PRESERVATION OF EVIDENCE.-- |
| 110 | (a) Governmental entities that may be in possession of any |
| 111 | physical evidence in the case, including, but not limited to, |
| 112 | any investigating law enforcement agency, the clerk of the |
| 113 | court, the prosecuting authority, or the Department of Law |
| 114 | Enforcement shall maintain any physical evidence collected at |
| 115 | the time of the crime for which a postsentencing testing of DNA |
| 116 | may be requested. |
| 117 | (b) Except for a case in which the death penalty is |
| 118 | imposed, the evidence shall be maintained for at least the |
| 119 | period of time set forth in subparagraph (1)(b)1. In a case in |
| 120 | which the death penalty is imposed, the evidence shall be |
| 121 | maintained for 60 days after execution of the sentence. In all |
| 122 | other cases, a governmental entity may dispose of the physical |
| 123 | evidence if the term of the sentence imposed in the case has |
| 124 | expired and |
| 125 | (c) A governmental entity may dispose of the physical |
| 126 | evidence before the expiration of the period of time set forth |
| 127 | in paragraph (1)(b) if all of the conditions set forth below are |
| 128 | met. |
| 129 | 1. The governmental entity notifies all of the following |
| 130 | individuals of its intent to dispose of the evidence: the |
| 131 | sentenced defendant, any counsel of record, the prosecuting |
| 132 | authority, and the Attorney General. |
| 133 | 2. The notifying entity does not receive, within 90 days |
| 134 | after sending the notification, either a copy of a petition for |
| 135 | postsentencing DNA testing filed pursuant to this section or a |
| 136 | request that the evidence not be destroyed because the sentenced |
| 137 | defendant will be filing the petition before the time for filing |
| 138 | it has expired. |
| 139 | 3. no other provision of law or rule requires that the |
| 140 | physical evidence be preserved or retained. |
| 141 | Section 2. Section 925.12, Florida Statutes, is created to |
| 142 | read: |
| 143 | 925.12 DNA testing; defendants entering pleas.-- |
| 144 | (1) For defendants who have entered a plea of guilty or |
| 145 | nolo contendere to a felony on or after July 1, 2006, a |
| 146 | defendant may petition for postsentencing DNA testing under s. |
| 147 | 925.11 under the following circumstances: |
| 148 | (a) The facts on which the petition is predicated were |
| 149 | unknown to the petitioner or the petitioner's attorney at the |
| 150 | time the plea was entered and could not have been ascertained by |
| 151 | the exercise of due diligence; or |
| 152 | (b) The physical evidence for which DNA testing is sought |
| 153 | was not disclosed to the defense by the state prior to the entry |
| 154 | of the plea by the petitioner. |
| 155 | (2) For defendants seeking to enter a plea of guilty or |
| 156 | nolo contendere to a felony on or after July 1, 2006, the court |
| 157 | shall inquire of the defendant and of counsel for the defendant |
| 158 | and the state as to physical evidence containing DNA known to |
| 159 | exist that could exonerate the defendant prior to accepting a |
| 160 | plea of guilty or nolo contendere. If no physical evidence |
| 161 | containing DNA that could exonerate the defendant is known to |
| 162 | exist, the court may proceed with consideration of accepting the |
| 163 | plea. If physical evidence containing DNA that could exonerate |
| 164 | the defendant is known to exist, the court may postpone the |
| 165 | proceeding on the defendant's behalf and order DNA testing upon |
| 166 | motion of counsel specifying the physical evidence to be tested. |
| 167 | (3) It is the intent of the Legislature that the Supreme |
| 168 | Court adopt rules of procedure consistent with this section for |
| 169 | a court, prior to the acceptance of a plea, to make an inquiry |
| 170 | into the following matters: |
| 171 | (a) Whether counsel for the defense has reviewed the |
| 172 | discovery disclosed by the state and whether such discovery |
| 173 | included a listing or description of physical items of evidence. |
| 174 | (b) Whether the nature of the evidence against the |
| 175 | defendant disclosed through discovery has been reviewed with the |
| 176 | defendant. |
| 177 | (c) Whether the defendant or counsel for the defendant is |
| 178 | aware of any physical evidence disclosed by the state for which |
| 179 | DNA testing may exonerate the defendant. |
| 180 | (d) Whether the state is aware of any physical evidence |
| 181 | for which DNA testing may exonerate the defendant. |
| 182 | (4) It is the intent of the Legislature that the |
| 183 | postponement of the proceedings by the court on the defendant's |
| 184 | behalf under subsection (2) constitute an extension attributable |
| 185 | to the defendant for purposes of the defendant's right to a |
| 186 | speedy trial. |
| 187 | Section 3. Rule 3.853, Florida Rules of Criminal |
| 188 | Procedure, is repealed to the extent it is inconsistent with |
| 189 | this act. |
| 190 | Section 4. This act shall take effect upon becoming a law |
| 191 | and shall apply retroactively to October 1, 2005; but section 3 |
| 192 | shall take effect only if this act is passed by the affirmative |
| 193 | vote of two-thirds of the membership of each house of the |
| 194 | Legislature. |
| 195 |
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| 196 | ======= T I T L E A M E N D M E N T ======= |
| 197 | Remove lines 15-43 and insert: |
| 198 | require that the evidence be retained; creating s. 925.12, |
| 199 | F.S.; providing for postsentencing DNA testing under |
| 200 | specified circumstances; requiring a court to make |
| 201 | specified inquiries of a defendant seeking to enter a plea |
| 202 | of guilty or nolo contendere to a felony; providing |
| 203 | legislative intent that the Supreme Court adopt certain |
| 204 | rules; providing that a postponement for specified reasons |
| 205 | be considered attributable to the defendant for speedy |
| 206 | trial purposes; repealing a specified Florida Rule of |
| 207 | Criminal Procedure; providing retroactive and certain |
| 208 | contingent effect; providing effective dates. |