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DRAFT AS OF 5 April 2005

FLORIDA HOUSE OF REPRESENTATIVES

HB 247, 2005

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

A bill to be entitled An act relating to DNA evidence; amending s. 925.11, F.S., relating to prohibition on requesting DNA testing in connection with plea agreements; removing deadline for filing petition; mandating preservation of evidence; adding requirement of the entry of a preservation order for DNA evidence; providing for entry of DNA profiles into law enforcement databases; establishing monitoring and tracking program for postsentencing DNA testing; establishing Florida Commission on Innocence; creating s. 925.12, F.S.; providing an effective date. 925.11 Postsentencing DNA testing.–

(1) Petition for examination.–

A person who has been tried and found guilty of committing a crime and has been sentenced by a court established by the laws of this state

is under a sentence of imprisonment or death may petition that the court to order the examination of physical evidence collected at the time of the investigation of the crime for which he or she has been sentenced which may contain DNA (deoxyribonucleic acid) and which would exonerate that person or mitigate the sentence that person received.

Except as provided in subparagraph 2., a petition for postsentencing DNA testing may be filed or considered:

Within 4 years following the date that the judgment and sentence in the case becomes final if no direct appeal is taken, within 4 years following the date that the conviction is affirmed on direct appeal if an appeal is taken, within 4 years following the date that collateral counsel is appointed or retained subsequent to the conviction being affirmed on direct appeal in a capital case, or by October 1, 2005, whichever occurs later; or
At any time if the facts on which the petition is predicated were unknown to the petitioner or the petitioner’s attorney and could not have been ascertained by the exercise of due diligence

. (2) Method for seeking postsentencing DNA testing.–

The petition for postsentencing DNA testing must be made under oath by the sentenced defendant and must include the following:
1. A statement of the facts relied on in support of the petition, including a description of the physical evidence containing DNA to be tested and, if known, the present location or the last known location of the evidence and how it was originally obtained;
2. A statement that the evidence was not previously tested for DNA or a statement that the results of any previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques would likely produce a definitive result;

the sentenced defendant is requesting DNA testing using a new method or technology that is substantially more probative than the prior DNA testing.

A statement that the sentenced defendant is innocent and how the DNA testing requested by the petition will exonerate the defendant of the crime for which the defendant was sentenced or will mitigate the sentence received by the defendant for that crime;

If a trial was conducted , a statement that identification of the defendant is was a genuinely disputed issue in the case trial, and why it is an issue;

Any other facts relevant to the petition; and

A certificate that a copy of the petition has been served on the prosecuting authority.

Upon receiving the petition, the clerk of the court shall file it and deliver the court file to the assigned judge.

The court shall review the petition and deny it if it is insufficient. If the petition is sufficient, the prosecuting authority shall be ordered to respond to the petition within 30 days. The court shall direct the prosecuting authority to take measures and notify all relevant entities to preserve the specific evidence relating to a motion under subsection (1) .

Upon receiving the response of the prosecuting authority, the court shall review the response and enter an order on the merits of the petition or set the petition for hearing.

Counsel may be appointed to assist the sentenced defendant if the petition proceeds to a hearing and if the court determines that the assistance of counsel is necessary and makes the requisite finding of indigency.

The court shall make the following findings when ruling on the petition:

Whether the sentenced defendant has shown that the physical evidence that may contain DNA still exists;
Whether the results of DNA testing of that physical evidence would be admissible at trial and whether there exists reliable proof to establish that the evidence has not been materially altered and would be admissible at a future hearing; and
Whether there is a reasonable probability that the sentenced defendant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.

If the court orders DNA testing of the physical evidence, the cost of such testing may be assessed against the sentenced defendant unless he or she is indigent. If the sentenced defendant is indigent, the state shall bear the cost of the DNA testing ordered by the court.

Any DNA testing ordered by the court shall be carried out by the Department of Law Enforcement or its designee, as provided in s. 943.3251.

The results of the DNA testing ordered by the court shall be provided to the court, the sentenced defendant, and the prosecuting authority. The prosecuting authority shall enter any DNA profile found into the National DNA Index System. If the DNA test results exclude the petitioner, then petitioners DNA reference sample must be destroyed . (3) Right to appeal; rehearing.–

An appeal from the court’s order on the petition for postsentencing DNA testing may be taken by any adversely affected party.
An order denying relief shall include a statement that the sentenced defendant has the right to appeal within 30 days after the order denying relief is entered.
The sentenced defendant may file a motion for rehearing of any order denying relief within 15 days after service of the order denying relief. The time for filing an appeal shall be tolled until an order on the motion for rehearing has been entered.
The clerk of the court shall serve on all parties a copy of any order rendered with a certificate of service, including the date of service.

(4
) Preservation of evidence.–

Governmental entities that may be in possession of any physical evidence in the case, including, but not limited to, any investigating law enforcement agency, the clerk of the court, the prosecuting authority, or the Department of Law Enforcement shall maintain any physical evidence collected at the time of the crime for which a postsentencing testing of DNA may be requested.
Except for a case in which the death penalty is imposed, the evidence shall be maintained for at least the period of time set forth in subparagraph (1)(b)

a person is incarcerated for the crime in connection with which the evidence was collected. In a case in which the death penalty is imposed, the evidence shall be maintained for 60 days after execution of the sentence.

A governmental entity may dispose of the physical evidence before the expiration of the period of time set forth in paragraph (1)(b)

4(b) if all of the conditions set forth below are met.

The evidence must be returned to its rightful owner, or is of such a size, bulk, or physical character as to render retention impractible; and
The governmental entity takes reasonable measures to remove and preserve portions of the material evidence sufficient to permit future DNA testing; and

3 The governmental entity notifies all of the following individuals of its intent to dispose of the evidence: the sentenced defendant, any counsel of record, the prosecuting authority, and the Attorney General.

4 The notifying entity does not receive, within 90 180 days after sending the notification, either a copy of a petition for postsentencing DNA testing filed pursuant to this section or a request that the evidence not be destroyed because the sentenced defendant will be filing the petition before the time for filing it has expired .

5 No other provision of law or rule requires that the physical evidence be preserved or retained.

(5) DNA identification of missing persons

Each governmental entity shall be required to submit the DNA profiles of missing persons and unidentified human remains to the National Missing Persons DNA Database of the Federal Bureau of Investigation.

(6) System for reporting motions

The Attorney General shall establish a system for reporting and tracking motions filed in accordance with this section.
In operating the system established under paragraph (a), the state courts shall provide to the Attorney General any requested assistance in operating such a system and in ensuring the accuracy and completeness of information included in that system.
Not later than 2 years after the date of enactment of this Act, the Attorney General shall submit a report to the legislature that contains:
1. A list of petitions filed under this section;
2. Whether DNA testing was ordered pursuant to such petition;
3. Whether the applicant obtained relief on the basis of DNA test results; and
4. Whether further proceedings occurred following a granting of relief and the outcome of such proceedings. 925.11 Florida Commission on Innocence
  1. Definitions. Exoneration shall include any case in which the Florida courts or the State Board of Executive Clemency has made a post-conviction determination of actual innocence; post-conviction DNA testing has led to a conviction being vacated, an indictment dismissed, or an acquittal upon retrial; a conviction has been reversed and vacated, an indictment dismissed, or a defendant was subsequently acquitted based on new evidence of innocence or other constitutional violation that calls into question the integrity of the judicial process; or any other post-conviction vacation of conviction or dismissal of indictment which this commission feels is appropriate to investigate.
  2. Creation. The Florida Commission on Innocence is hereby created.
  3. Composition of the commission.
1. The commission shall be composed of 12 members. The Chief Justice of the Florida Supreme Court shall appoint one member, who will be the commissions presiding officer. The presiding officer shall choose two members of the general public who do not have any legal, law enforcement, criminal justice or forensic science background from a pool of applications submitted by members of the general public interested in serving on the commission. The presiding officer shall also choose two members of the academic community, one specializing in criminal justice and one in forensic science. One member shall be selected by the Public Defenders Association. One member shall be selected by the Association of Prosecuting Attorneys. One member shall be selected by the Criminal Courts Steering Committee, who shall have experience in the judiciary, or be a certified court mediator or arbitrator. One member shall be selected by the Florida Bar. One member shall be selected by the Governor. One member shall be selected by the Chair of the Democratic Caucus. One member shall be selected by the Chair of the Republican Caucus.
2. Terms. Each member shall serve a two year term.
(4) Duties and Powers.

The commission shall thoroughly investigate:
1. all post-conviction exonerations, including convictions vacated based on a plea to time served, to:
  1. ascertain what errors or defects, if any, occurred in the investigation, prosecution, defense or judicial administration of the case that led to the wrongful conviction;;
  2. identify errors and defects in the criminal justice process in the state generally;
  3. develop solutions and methods to correct the identified errors and defects; and
  4. identify procedures and programs to prevent future wrongful convictions.
2. colorable allegations that an innocent person has been executed.

The commission shall determine meeting frequency, place and protocol, except that the commission shall not meet less than once per quarter.
The commission may enter contracts for research services as considered necessary to complete the investigation of a particular case, including forensic testing and autopsies.
The commission may administer oaths and issue subpoenas, signed by the president officer, to compel the production of documents and attendance of witnesses as considered necessary to conduct a thorough investigation. A subpoena of the commission shall be served by a peace officer in the manner in which circuit court subpoenas are served. On application of the commission, a circuit court shall compel compliance with the subpoena in the same manner as for circuit court subpoenas.

(5) Reporting.

The commission shall compile a detained annual report of its findings and recommendations, including any proposed legislation to implement procedures and programs to prevent future wrongful convictions, and present the report to the Chief Justice of the Florida Supreme Court, the Democratic Caucus Chair and the Republican Caucus Chair.
The report shall be available to the public upon request.
The findings and recommendations contained in the report may not be used as evidence in any subsequent civil or criminal proceeding.
Not later than the 60th day after the date of receipt of the report required by this article, the Chief Justice of the Florida Supreme Court, the Democratic Caucus Chair and the Republican Caucus Chair, singly or jointly, shall issue a formal written response to the findings and recommendations to the commission.
The report and any response(s) may be used to request appropriate legislation and/or court rule as required.

(6) Funding.

The commission shall be appropriated an
annual budget of $_____________ to cover copying, mailing, meeting expenses, expert travel expenses and consulting fees, and contractor services for excessive administrative or research needs.
Commission members shall donate their time, energy and expertise. Expenses for travel by commission members may be reimbursed according to established guidelines for state employees.

(7) Miscellaneous .

The appointments required herein shall be made no later than 60 days from the effective date of this act.

This act shall take effect on July 1, 2005 .

Floridians for Alternatives to the Death Penalty
PMB 335
2603 NW 13th St (AKA Dr. MLK Jr. Hwy)
Gainesville, FL 32609
(800) 973-6548
[email protected]

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