HB 61

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

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