ROBERT WARREN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Warren appealed the dismissal of his postconviction DNA testing motion under Florida Rule of Criminal Procedure 3.853 and section 925.11. The court held that Warren's motion was facially sufficient despite not explicitly alleging the evidence was still available, as neither the rule nor statute required such an allegation.
Neither rule 3.853 nor section 925.11 requires that a movant allege the evidence is still available. Warren's motion was facially sufficient because he identified the agencies likely to have possession of the evidence and complied with other requirements of the rule and statute, even though inartfully drafted.
[1] A postconviction motion for DNA testing does not require the movant to allege that the evidence is still available for testing.
[2] A movant seeking postconviction DNA testing must describe the physical evidence containing DNA and, if known, its present or last known location and how it was obtained.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Neither the rule nor the statute requires that the movant allege that the evidence is still available to be tested.”
Establishes that the trial court's basis for dismissal—requiring an allegation that evidence was still available—was not a valid procedural requirement under rule 3.853 or section 925.11.
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Join FLexlaw to unlock all legal intelligenceWarren was convicted and incarcerated. He filed a postconviction motion for DNA testing alleging that hair and semen samples were taken from the victi…
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WHATLEY, Judge.
Robert Warren appeals the trial court’s order dismissing his motion filed pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes (2002). We reverse the trial court’s order and remand for further proceedings.
The trial court found that Warren’s motion for postconviction DNA testing failed to comply with the procedural requirements of rule 3.853 because the mo tion “does not demonstrate or allege that the evidence is still available.” A postcon-viction motion for DNA testing is governed by rule 3.853 and section 925.11. Both the rule and the statute require that the mov-ant include a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it was originally obtained. Fla. R.Crim. P. 3.853(b)(1); see also § 925.11(2)(a)(l). Neither the rule nor the statute requires that the movant allege that the evidence is still available to be tested. The motion must be sworn to by the movant, and whether or not the evidence is still in existence is likely to be beyond the knowledge of the movant, especially where, as here, the movant is incarcerated.
In his motion, Warren alleged, inter aha, that hair and semen samples were taken from the person of the victim by Bayfront Medical Center’s Rape Crisis Unit, the St. Petersburg Police Department, or the Pinellas County Sheriffs Office. He further alleged that the evidence was then turned over to the Florida Department of Law Enforcement or the Federal Bureau of Investigation for forensic testing. Pursuant to the requirements of the rule and the statute, Warren is obligated to provide information regarding the location of the evidence only if he has knowledge of said location. It would be preferable that if a movant has no knowledge regarding the location of the evidence, he so state in the motion. Warren listed several agencies that might have had, or might have, possession of the evidence in question, and we conclude that although inartfully drafted, Warren’s motion satisfied the requirement that he provide, if known, “the present location or the last known location of the evidence.”
Because we conclude that Warren also complied with the other requirements of rule 3.853 and section 925.11, and therefore filed a facially sufficient motion for postconviction DNA testing, we reverse the trial court’s order and remand with instructions to the trial court to order the prosecuting authority to respond to the motion. See Fla. R.Crim. P. 3.853(c)(2).
Reversed and remanded.
NORTHCUTT and SILBERMAN, JJ., Concur.
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Warren v. State, 884 So. 2d 1074 (Fla. 2d DCA 2004)…vidence collected during the investigation that preceded his conviction for rape. This court previously held that Warren’s rule 3.853 motion was facially sufficient and instructed the trial court to order the State to respond. See Warren v. State, 851 So. 2d 817 (Fla. 2d DCA 2003). After obtaining the State’s response, the trial court accepted the State’s conclusion that the evidence for which Warren requested DNA testing no longer exists. The trial court then summarily denied Warren’s rule 3.853 motion.…