Court sets procedures for postconviction DNA testing November 1, 2001 Managing Editor Regular News Court sets procedures for postconviction DNA testing Mark D. Killian Managing Editor The Florida Supreme Court has amended its procedural rules to allow only inmates who were “tried and found guilty” to seek exoneration or a sentence reduction through DNA evidence. The adoption of Florida Rule of Criminal Procedure 3.853, and amendments to Florida Rules of Appellate Procedure 9.140 and 9.141 also impose a two-year time limit on inmates to request testing and is very similar to a state law (Ch. 2001-97) that went into effect October 1. The court also said because the amendments to Rules 9.140 and 9.141 had not previously been published, it will accept comment on the changes until December 17. (The text of the amended rules can be found beginning on page 14.) Case nos. SC01-363 & SC01-1649. The 4-3 court declined to make postconviction DNA testing available to those who plead guilty or nolo contendere, which was advocated by the Criminal Procedures Rules Committee, but was not permitted in the new DNA law. In a brief, House Speaker Tom Feeney, R-Oviedo, told the court that expanding the rule to authorize DNA testing for those who plead guilty or no contest “would violate the separation of powers provision of the Florida Constitution,” because expanding the pool of those eligible for DNA testing is substantive in nature “and cannot be reasonably construed to be procedural.” The majority – Chief Justice Charles Wells and Justices Leander Shaw, Major Harding and Fred Lewis – said the court adopted “the appended procedures to effectuate the new legislation without reaching the constitutional issues raised in this proceeding.” In a separate opinion by Justice Harry Lee Anstead – concurring in part and dissenting in part – Anstead said he would have adopted a comprehensive rule providing for postconviction DNA testing of all those convicted who could meet the “rigorous requirements of the proposed rule.” “I cannot agree with the majority’s apparent decision to reject the committee’s proposal, and to essentially postpone any consideration of those issues not resolved by the enactment of legislation providing for limited postconviction DNA testing until an inmate claiming an unjust conviction and entitlement to DNA testing brings those issues to the court.” wrote Anstead in his opinion, in which Justices Barbara Pariente and Peggy Quince concurred. “Rather than delay, we should enthusiastically embrace the use of science which can only serve to enhance confidence in our criminal justice system and bring more certainty to a determination of guilt or innocence, or just punishment.” The court said the committee’s proposed Rule 3.853 varied from the new DNA legislation in several other respects, including the laboratory or agency that must conduct the testing. Ch. 2001-97, section 1, creates §925.11(2)(h), which provides for court-ordered DNA testing to be conducted by the Florida Department of Law Enforcement or its designee, as provided in §943.3251. The court said proposed rule 3.853(c)(7) tracks the legislation but further authorizes the court, on a showing of good cause, to order testing by another laboratory or agency. Subdivision (c) of the new rule provides general procedures to be followed after a motion for testing is filed. “Specifically, we have amended subdivision (c)(7) to allow the court, on a showing of good cause, to order testing by a laboratory or agency, certified by the American Society of Crime Laboratory Directors or the National Forensic Science Training Center, other than FDLE or its designee when requested by a movant who can bear the costs of such testing,” the court said. Subdivision (d) of the new rule provides time limitations for seeking postconviction DNA testing. “At this time, we adhere to the two-year time limitations contained in the new legislation,” the court said. The court, however, adopted proposed subdivision (d)(2), which addresses matters not addressed by the new legislation. As modified, it reads: “A motion to vacate filed under Rule 3.850 or a motion for postconviction or collateral relief filed under Rule 3.851, which is based solely on the results of the court-ordered DNA testing obtained under this rule, shall be treated as raising a claim of newly-discovered evidence and the time periods set forth in Rules 3.850 and 3.851 shall commence on the date that the written test results are provided to the court, the movant, and the prosecuting authority pursuant to subsection (c)(8).” The court said subdivisions (e) and (f) of the new rule provide procedures for rehearing and appeal. In response to a comment by Judge O. H. Eaton, Jr., past chair of the Criminal Procedure Rules Committee, the court said it modified proposed subdivision (f) to provide that an appeal may be taken within 30 days from the date the order on the motion is rendered, rather than within 30 days from the entry of the order. Rules 9.140 and 9.141 were amended to provide procedures for appeals from Rule 3.853 orders, which parallel the procedures for appeals in Rule 3.850 and Rule 3.800(a) proceedings.