HB 0061

CS

CHAMBER ACTION

1	The Governmental Operations Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to the postsentencing testing of DNA
7	evidence; amending s. 925.11, F.S.; revising the
8	circumstances under which a person who has been sentenced
9	for committing a felony may petition the court for
10	postsentencing testing of DNA evidence; abolishing certain
11	time limitations imposed upon such testing; authorizing a
12	governmental entity to dispose of physical evidence if the
13	sentence imposed has expired and another law or rule does
14	not require that the evidence be retained; providing for
15	retroactive application; providing an effective date.
16
17	Be It Enacted by the Legislature of the State of Florida:
18
19	Section 1.  Section 925.11, Florida Statutes, is amended to
20	read:
21	925.11  Postsentencing DNA testing.--
22	(1)  PETITION FOR EXAMINATION.--
23	(a)  A person who has been convicted of a felony and
24	sentenced for committing that offense tried and found guilty of
25	committing a crime and has been sentenced by a court established
26	by the laws of this state may petition that court to order the
27	examination of physical evidence collected at the time of the
28	investigation of the crime for which he or she has been
29	sentenced which may contain DNA (deoxyribonucleic acid) and
30	which would exonerate that person or mitigate the sentence that
31	person received.
32	(b)  A petition for postsentencing DNA testing may be filed
33	or considered at any time following the date that the judgment
34	and sentence in the case becomes final. Except as provided in
35	subparagraph 2., a petition for postsentencing DNA testing may
36	be filed or considered:
37	1.  Within 4 years following the date that the judgment and
38	sentence in the case becomes final if no direct appeal is taken,
39	within 4 years following the date that the conviction is
40	affirmed on direct appeal if an appeal is taken, within 4 years
41	following the date that collateral counsel is appointed or
42	retained subsequent to the conviction being affirmed on direct
43	appeal in a capital case, or by October 1, 2005, whichever
44	occurs later; or
45	2.  At any time if the facts on which the petition is
46	predicated were unknown to the petitioner or the petitioner's
47	attorney and could not have been ascertained by the exercise of
48	due diligence.
49	(2)  METHOD FOR SEEKING POSTSENTENCING DNA TESTING.--
50	(a)  The petition for postsentencing DNA testing must be
51	made under oath by the sentenced defendant and must include the
52	following:
53	1.  A statement of the facts relied on in support of the
54	petition, including a description of the physical evidence
55	containing DNA to be tested and, if known, the present location
56	or the last known location of the evidence and how it was
57	originally obtained;
58	2.  A statement that the evidence was not previously tested
59	for DNA or a statement that the results of any previous DNA
60	testing were inconclusive and that subsequent scientific
61	developments in DNA testing techniques would likely produce a
62	definitive result;
63	3.  A statement that the sentenced defendant is innocent
64	and how the DNA testing requested by the petition will exonerate
65	the defendant of the crime for which the defendant was sentenced
66	or will mitigate the sentence received by the defendant for that
67	crime;
68	4.  A statement that identification of the defendant is a
69	genuinely disputed issue in the case, and why it is an issue;
70	5.  Any other facts relevant to the petition; and
71	6.  A certificate that a copy of the petition has been
72	served on the prosecuting authority.
73	(b)  Upon receiving the petition, the clerk of the court
74	shall file it and deliver the court file to the assigned judge.
75	(c)  The court shall review the petition and deny it if it
76	is insufficient. If the petition is sufficient, the prosecuting
77	authority shall be ordered to respond to the petition within 30
78	days.
79	(d)  Upon receiving the response of the prosecuting
80	authority, the court shall review the response and enter an
81	order on the merits of the petition or set the petition for
82	hearing.
83	(e)  Counsel may be appointed to assist the sentenced
84	defendant if the petition proceeds to a hearing and if the court
85	determines that the assistance of counsel is necessary and makes
86	the requisite finding of indigency.
87	(f)  The court shall make the following findings when
88	ruling on the petition:
89	1.  Whether the sentenced defendant has shown that the
90	physical evidence that may contain DNA still exists;
91	2.  Whether the results of DNA testing of that physical
92	evidence would be admissible at trial and whether there exists
93	reliable proof to establish that the evidence has not been
94	materially altered and would be admissible at a future hearing;
95	and
96	3.  Whether there is a reasonable probability that the
97	sentenced defendant would have been acquitted or would have
98	received a lesser sentence if the DNA evidence had been admitted
99	at trial.
100	(g)  If the court orders DNA testing of the physical
101	evidence, the cost of such testing may be assessed against the
102	sentenced defendant unless he or she is indigent. If the
103	sentenced defendant is indigent, the state shall bear the cost
104	of the DNA testing ordered by the court.
105	(h)  Any DNA testing ordered by the court shall be carried
106	out by the Department of Law Enforcement or its designee, as
107	provided in s. 943.3251.
108	(i)  The results of the DNA testing ordered by the court
109	shall be provided to the court, the sentenced defendant, and the
110	prosecuting authority.
111	(3)  RIGHT TO APPEAL; REHEARING.--
112	(a)  An appeal from the court's order on the petition for
113	postsentencing DNA testing may be taken by any adversely
114	affected party.
115	(b)  An order denying relief shall include a statement that
116	the sentenced defendant has the right to appeal within 30 days
117	after the order denying relief is entered.
118	(c)  The sentenced defendant may file a motion for
119	rehearing of any order denying relief within 15 days after
120	service of the order denying relief. The time for filing an
121	appeal shall be tolled until an order on the motion for
122	rehearing has been entered.
123	(d)  The clerk of the court shall serve on all parties a
124	copy of any order rendered with a certificate of service,
125	including the date of service.
126	(4)  PRESERVATION OF EVIDENCE.--
127	(a)  Governmental entities that may be in possession of any
128	physical evidence in the case, including, but not limited to,
129	any investigating law enforcement agency, the clerk of the
130	court, the prosecuting authority, or the Department of Law
131	Enforcement shall maintain any physical evidence collected at
132	the time of the crime for which a postsentencing testing of DNA
133	may be requested.
134	(b)  Except for a case in which the death penalty is
135	imposed, the evidence shall be maintained for at least the
136	period of time set forth in subparagraph (1)(b)1. In a case in
137	which the death penalty is imposed, the evidence shall be
138	maintained for 60 days after execution of the sentence. In all
139	other cases, a governmental entity may dispose of the physical
140	evidence if the term of the sentence imposed in the case has
141	expired and
142	(c)  A governmental entity may dispose of the physical
143	evidence before the expiration of the period of time set forth
144	in paragraph (1)(b) if all of the conditions set forth below are
145	met.
146	1.  The governmental entity notifies all of the following
147	individuals of its intent to dispose of the evidence: the
148	sentenced defendant, any counsel of record, the prosecuting
149	authority, and the Attorney General.
150	2.  The notifying entity does not receive, within 90 days
151	after sending the notification, either a copy of a petition for
152	postsentencing DNA testing filed pursuant to this section or a
153	request that the evidence not be destroyed because the sentenced
154	defendant will be filing the petition before the time for filing
155	it has expired.
156	3.  no other provision of law or rule requires that the
157	physical evidence be preserved or retained.
158	Section 2.  This act shall take effect upon becoming a law
159	and shall apply retroactively to October 1, 2005.

CODING: Words stricken are deletions; words underlined are additions.