ROY J. MARSH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A factual dispute arises when a defendant claims DNA evidence exists and the State denies it, requiring an evidentiary hearing.
Marsh sought postconviction DNA testing of evidence from his 1987 convictions. The State responded that the investigating agency had no custody of evi…
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COVINGTON, Judge.
Roy J. Marsh challenges the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We reverse and remand for further proceedings.
In 1987, a jury found Marsh guilty of sexual battery, engaging a child in sexual activity, and incest. In his motion, Marsh sought DNA testing of all the physical evidence that was gathered during the investigation of this case. The trial court concluded that the motion was facially sufficient and ordered the State to respond to Marsh’s motion pursuant to Florida Rule of Criminal Procedure 3.853(c)(2). The State responded by pointing out that, according to the investigating law enforce ment agency, it did not have custody of any evidence in the case. The State further claimed that it “has ascertained that no physical evidence suitable for DNA testing was submitted at trial.” As proof of this, the State attached the individual evidence listing for these cases. Based on this response, the trial court denied Marsh’s motion without an evidentiary hearing finding that no physical evidence containing DNA existed.
Where a defendant claims that DNA evidence exists, but the State denies the claim, a factual dispute results and an evidentiary hearing is required. Borland v. State, 848 So. 2d 1288 (Fla. 2d DCA 2003). Because in this case the State’s response created a factual dispute, the trial court should have conducted a hearing. Accordingly, we reverse and remand for the trial court to conduct a hearing on Marsh’s motion.
Reversed and remanded.
WHATLEY and CANADY, JJ., Concur.
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Spaziano v. State, 879 So. 2d 51 (Fla. 5th DCA 2004)…nviction relief petitioner, who twenty-three years after his conviction requested DNA testing of certain items of evidence, was entitled to an evidentiary hearing to address issue of whether testable evidence still existed); see also Marsh v. State, 852 So. 2d 945 (Fla. 2d DCA 2003) (holding that the trial court was required to conduct hearing on defendant’s motion for postconviction DNA testing after the state denied having any physical evidence suitable for DNA testing); Borland v. State, 848 So. 2d 1288 (F…
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Carter v. State, 913 So. 2d 701 (Fla. 3d DCA 2005)…t DNA testing could be performed, this evidence would not exonerate the Defendant.” Where a defendant claims that DNA evidence exists, but the state denies the claim, a factual dispute results and an evidentiary hearing is required. Marsh v. State, 852 So. 2d 945 (Fla. 2d DCA 2003)(if state’s response creates a factual dispute, trial court should conduct evidentiary hearing to resolve it); Riley v. State, 851 So. 2d 811 (Fla. 2d DCA 2003)(“Neither the trial court nor this court can address the factual discre…
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Jordan v. State, 950 So. 2d 442 (Fla. 3d DCA 2007)…ate that evidence is no longer in its possession and cannot be found may not be summarily resolved and requires an evidentiary hearing. See Carter, 913 So. 2d at 702; see also Spaziano v. State, 879 So. 2d 51, 54 (Fla. 5th DCA 2004); Marsh v. State, 852 So. 2d 945, 946 (Fla. 2d DCA 2003). In the event that the trial court finds after conducting an evi-dentiary hearing that DNA evidence contained in the swabs could provide an exculpatory result, the trial court must conduct an evidentiary hearing on whether th…
Authorities Cited
- Borland v. State, 848 So. 2d 1288 (Fla. 2d DCA 2003)