HB 0061

CS

CHAMBER ACTION

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

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