HB 71

1	A bill to be entitled
2	An act relating to evidence; amending s. 925.11, F.S.;
3	revising requirements for petitions for examination of
4	evidence and postsentencing DNA testing; requiring entry
5	of DNA profile information into a national DNA index
6	system; revising requirements for retention of DNA
7	evidence; providing additional requirements for disposal
8	of physical evidence; requiring a system for reporting and
9	tracking specified motions; providing for retroactive
10	application; requiring a report; providing for DNA
11	identification of missing persons; creating s. 925.12,
12	F.S.; creating the Florida Commission on Innocence;
13	defining the term "exoneration"; providing membership;
14	providing terms of office; providing powers and duties;
15	providing for a report and responses; providing for an
16	annual appropriation to cover expenses; providing a
17	deadline for initial appointments; providing effective
18	dates.
19
20	Be It Enacted by the Legislature of the State of Florida:
21
22	Section 1.  Effective upon this act becoming a law and
23	applicable retroactive to September 30, 2005, section 925.11,
24	Florida Statutes, is amended to read:
25	925.11  Postsentencing DNA testing.--
26	(1)  PETITION FOR EXAMINATION.--
27	(a)  A person who is under a sentence of imprisonment or
28	death has been tried and found guilty of committing a crime and
29	has been sentenced by a court established by the laws of this
30	state may petition a that court to order the examination of
31	physical evidence collected at the time of the investigation of
32	the crime for which he or she has been sentenced which may
33	contain DNA (deoxyribonucleic acid) and which would exonerate
34	that person or mitigate the sentence that person received.
35	(b)  Except as provided in subparagraph 2., a petition for
36	postsentencing DNA testing may 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 sentenced defendant is
60	requesting DNA testing using a new method or technology that is
61	substantially more probative than the prior DNA testing. results
62	of any previous DNA testing were inconclusive and that
63	subsequent scientific developments in DNA testing techniques
64	would likely produce a definitive result;
65	3.  A statement that the sentenced defendant is innocent
66	and how the DNA testing requested by the petition will exonerate
67	the defendant of the crime for which the defendant was sentenced
68	or will mitigate the sentence received by the defendant for that
69	crime.;
70	4.  If a trial was conducted, a statement that
71	identification of the defendant was is a genuinely disputed
72	issue in the trial. case, and why it is an issue;
73	5.  Any other facts relevant to the petition.; and
74	6.  A certificate that a copy of the petition has been
75	served on the prosecuting authority.
76	(b)  Upon receiving the petition, the clerk of the court
77	shall file it and deliver the court file to the assigned judge.
78	(c)  The court shall review the petition and deny it if it
79	is insufficient. If the petition is sufficient, the prosecuting
80	authority shall be ordered to respond to the petition within 30
81	days. The court shall direct the prosecuting authority to take
82	measures and notify all relevant entities to preserve the
83	specific evidence relating to a petition under subsection (1).
84	(d)  Upon receiving the response of the prosecuting
85	authority, the court shall review the response and enter an
86	order on the merits of the petition or set the petition for
87	hearing.
88	(e)  Counsel may be appointed to assist the sentenced
89	defendant if the petition proceeds to a hearing and if the court
90	determines that the assistance of counsel is necessary and makes
91	the requisite finding of indigency.
92	(f)  The court shall make the following findings when
93	ruling on the petition:
94	1.  Whether the sentenced defendant has shown that the
95	physical evidence that may contain DNA still exists.;
96	2.  Whether the results of DNA testing of that physical
97	evidence would be admissible at trial and whether there exists
98	reliable proof to establish that the evidence has not been
99	materially altered and would be admissible at a future hearing.;
100	and
101	3.  Whether there is a reasonable probability that the
102	sentenced defendant would have been acquitted or would have
103	received a lesser sentence if the DNA evidence had been admitted
104	at trial.
105	(g)  If the court orders DNA testing of the physical
106	evidence, the cost of such testing may be assessed against the
107	sentenced defendant unless he or she is indigent. If the
108	sentenced defendant is indigent, the state shall bear the cost
109	of the DNA testing ordered by the court.
110	(h)  Any DNA testing ordered by the court shall be carried
111	out by the Department of Law Enforcement or its designee, as
112	provided in s. 943.3251.
113	(i)  The results of the DNA testing ordered by the court
114	shall be provided to the court, the sentenced defendant, and the
115	prosecuting authority. The prosecuting authority shall enter any
116	DNA profile found into the National DNA Index System. If the DNA
117	test results exclude the petitioner, then the petitioner's DNA
118	reference sample must be destroyed.
119	(3)  RIGHT TO APPEAL; REHEARING.--
120	(a)  An appeal from the court's order on the petition for
121	postsentencing DNA testing may be taken by any adversely
122	affected party.
123	(b)  An order denying relief shall include a statement that
124	the sentenced defendant has the right to appeal within 30 days
125	after the order denying relief is entered.
126	(c)  The sentenced defendant may file a motion for
127	rehearing of any order denying relief within 15 days after
128	service of the order denying relief. The time for filing an
129	appeal shall be tolled until an order on the motion for
130	rehearing has been entered.
131	(d)  The clerk of the court shall serve on all parties a
132	copy of any order rendered with a certificate of service,
133	including the date of service.
134	(4)  PRESERVATION OF EVIDENCE.--
135	(a)  Governmental entities that may be in possession of any
136	physical evidence in the case, including, but not limited to,
137	any investigating law enforcement agency, the clerk of the
138	court, the prosecuting authority, or the Department of Law
139	Enforcement shall maintain any physical evidence collected at
140	the time of the crime for which a postsentencing testing of DNA
141	may be requested.
142	(b)  Except for a case in which the death penalty is
143	imposed, the evidence shall be maintained for at least the
144	period of time the sentenced defendant is incarcerated for the
145	crime in connection with which the evidence was collected set
146	forth in subparagraph (1)(b)1. In a case in which the death
147	penalty is imposed, the evidence shall be maintained for 60 days
148	after execution of the sentence.
149	(c)  A governmental entity may dispose of the physical
150	evidence before the expiration of the period of time set forth
151	in paragraph (1)(b) if all of the conditions set forth below are
152	met:.
153	1.  The evidence will be returned to its rightful owner
154	unless it is of such a size, bulk, or physical character as to
155	render retention impracticable.
156	2.  The governmental entity takes reasonable measures to
157	remove and preserve portions of the material evidence sufficient
158	to permit future DNA testing.
159	3.1.  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	4.2.  The notifying entity does not receive, within 180 90
164	days after sending the notification, either a copy of a petition
165	for postsentencing DNA testing filed pursuant to this section or
166	a request that the evidence not be destroyed because the
167	sentenced defendant will be filing the petition before the time
168	for filing it has expired.
169	5.3.  No other provision of law or rule requires that the
170	physical evidence be preserved or retained.
171	(5)  SYSTEM FOR REPORTING MOTIONS.--
172	(a)  The Attorney General shall establish a system for
173	reporting and tracking motions filed in accordance with this
174	section.
175	(b)  In operating the system established under paragraph
176	(a), the state courts shall provide to the Attorney General any
177	requested assistance in operating such a system and in ensuring
178	the accuracy and completeness of information included in that
179	system.
180	Section 2.  Not later than 2 years after the date of
181	enactment of this act, the Attorney General shall submit a
182	report to the Legislature that lists each petition filed under
183	s. 925.11, Florida Statutes, and the following information about
184	each petition:
185	(1)  Whether DNA testing was ordered pursuant to such
186	petition.
187	(2)  Whether the applicant obtained relief on the basis of
188	DNA test results.
189	(3)  Whether further proceedings occurred following a
190	granting of relief and the outcome of such proceedings.
191	Section 3.  DNA profiles of missing persons.--Each
192	governmental entity possessing a DNA profile of a missing person
193	or of unidentified human remains shall submit the DNA profile to
194	the National Missing Persons DNA Database of the Federal Bureau
195	of Investigation.
196	Section 4.  Section 925.12, Florida Statutes, is created to
197	read:
198	925.12  Florida Commission on Innocence.--
199	(1)  As used in this section, the term "exoneration"
200	includes any case in which:
201	(a)  The courts of this state or the Board of Executive
202	Clemency have made a postconviction determination of actual
203	innocence;
204	(b)  DNA testing has led to a conviction being vacated, an
205	indictment being dismissed, or an acquittal upon retrial;
206	(c)  A conviction has been reversed and vacated, an
207	indictment dismissed, or a defendant was subsequently acquitted
208	based on new evidence of innocence or other constitutional
209	violation that calls into question the integrity of the judicial
210	process; or
211	(d)  Any other vacation of conviction or dismissal of
212	indictment that the Florida Commission on Innocence feels is
213	appropriate to investigate.
214	(2)(a)  The Florida Commission on Innocence is hereby
215	created.
216	(b)  The commission shall be composed of 12 members. The
217	Chief Justice of the Supreme Court shall appoint one member, who
218	shall serve as the commission's presiding officer. The presiding
219	officer shall appoint two members of the general public who do
220	not have any legal, law enforcement, criminal justice, or
221	forensic science background from a pool of applications
222	submitted by members of the general public. The presiding
223	officer shall also appoint two members of the academic
224	community, one specializing in criminal justice and one
225	specializing in forensic science. One member shall be appointed
226	by the Florida Public Defenders Association. One member shall be
227	appointed by the Florida Prosecuting Attorneys Association. The
228	Criminal Courts Steering Committee shall appoint one member, who
229	shall have experience in the judiciary or be a certified court
230	mediator or arbitrator. One member shall be appointed by The
231	Florida Bar. One member shall be appointed by the Governor. One
232	member shall be appointed by the chair of the Democratic Caucus
233	of the House of Representatives. One member shall be appointed
234	by the chair of the Republican Caucus of the House of
235	Representatives.
236	(c)  Each member shall serve a 2-year term.
237	(3)(a)  The commission shall thoroughly investigate:
238	1.  All postconviction exonerations, including convictions
239	vacated based on a plea to time served, to:
240	a.  Ascertain what errors or defects, if any, occurred in
241	the investigation, prosecution, defense, or judicial
242	administration of the case that led to the wrongful conviction.
243	b.  Identify errors and defects in the criminal justice
244	process in the state generally.
245	c.  Develop solutions to correct the identified errors and
246	defects.
247	d.  Identify procedures and programs to prevent future
248	wrongful convictions.
249	2.  Any colorable allegations that an innocent person has
250	been executed.
251	(b)  The commission shall determine meeting frequency,
252	place, and protocol, except that the commission shall not meet
253	less than once per calendar quarter.
254	(c)  The commission may enter contracts for research
255	services it considers necessary to complete the investigation of
256	a particular case, including forensic testing and autopsies.
257	(d)  The commission may administer oaths and issue
258	subpoenas signed by the presiding officer to compel the
259	production of documents and attendance of witnesses considered
260	necessary to an investigation. A commission subpoena shall be
261	served as provided in s. 48.031. On application of the
262	commission, a circuit court shall compel compliance with a
263	subpoena in the same manner as for circuit court subpoenas.
264	(4)(a)  The commission shall compile a detailed annual
265	report of its findings and recommendations, including any
266	proposed legislation to implement procedures and programs to
267	prevent future wrongful convictions, and present the report to
268	the Chief Justice of the Supreme Court, the chair of the
269	Democratic Caucus of the House of Representatives, and the chair
270	of the Republican Caucus of the House of Representatives.
271	(b)  The report shall be available to the public upon
272	request.
273	(c)  The findings and recommendations contained in the
274	report may not be used as evidence in any subsequent civil or
275	criminal proceeding.
276	(d)  Not later than the 60th day after the date of receipt
277	of the report required by this subsection, the Chief Justice of
278	the Supreme Court, the chair of the Democratic Caucus of the
279	House of Representatives, and the chair of the Republican Caucus
280	of the House of Representatives, singly or jointly, shall
281	respond to the commission in writing concerning the findings and
282	recommendations in the report.
283	(e)  The report and the responses may be used by the
284	commission to request appropriate legislation or court rule as
285	required.
286	(5)(a)  The commission shall receive an annual
287	appropriation to cover copying, mailing, and meeting expenses;
288	expert travel expenses and consulting fees; and contractor
289	services for administrative or research needs.
290	(b)  Commission members shall donate their time, energy,
291	and expertise. Expenses for per diem and travel by commission
292	members may be reimbursed as provided in s. 112.061.
293	(6)  The initial appointments to the commission shall be
294	made no later than 60 days after the effective date of this
295	section.
296	Section 5.  Except as otherwise expressly provided in this
297	act, this act shall take effect July 1, 2006.

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