ALLEN ZOLLMAN A/K/A ALLAN RAY DENTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The trial court erred by determining evidence no longer existed based solely on the State's unsworn response without an evidentiary hearing.
Appellant sought post-conviction DNA testing of evidence. The trial court denied the motion based on the State's unsworn response stating the evidence…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Factual Dispute cases and more on FLexlaw
[*776] CANADY, Judge.
Allen Zollman appeals the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.853, seeking post-conviction DNA testing of certain items of evidence. We previously reversed the trial court’s ruling that Zollman’s motion was facially insufficient. Zollman v. State, 820 So. 2d 1059 (Fla. 2d DCA 2002). In this appeal, Zollman argues that the trial court erred on remand when it determined, based solely on the State’s unsworn response to his motion, that the evidence that he seeks to have tested no longer exists. Because the trial court could not properly make such a factual determination without affording Zollman the benefit of an evidentiary hearing, we reverse.
This case is very similar to another case recently decided by this court, Borland v. State, 848 So. 2d 1288 (Fla. 2d DCA 2003). In Borland, as in the instant case, the movant alleged that items of evidence that could be DNA. tested still existed. Likewise, in both Borland and in the instant case the trial courts denied the motions based upon unsworn responses by the State that indicated that the evidence to be tested did not exist.
This court held in Borland that an un-sworn response or even a sworn affidavit that refutes an allegation made by the movant serves only to create a “factual dispute,” which must be resolved by an evidentiary hearing. Id. at 1290. Consequently, it was error in the instant case for the trial court to accept the State’s response as true without providing Zollman with an opportunity at an evidentiary hearing to address the issue of whether testable evidence still exists. We reverse and remand this case for proceedings consistent with this opinion.
Reversed and remanded.
FULMER and WALLACE, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hampton v. State, 924 So. 2d 34 (Fla. 3d DCA 2006)…District takes the position that even if all of the relevant record custodians file affidavits stating that testable material no longer exists, an evidentiary hearing is required and the motion cannot be disposed of summarily. See Zollman v. State, 854 So. 2d 775, 776 (Fla. 2d DCA 2003). We need not reach that issue in this case, because the State failed to make inquiry of a relevant custodian, the Crime Lab. . Naturally the possibility of a contributor through consensual intercourse would need to be consid…
-
Delidle v. State, 866 So. 2d 748 (Fla. 5th DCA 2004)…THOMPSON, J. Arthur C. Delidle appeals the summary denial of this motion -for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.853. Relying upon Zollman v. State, 854 So. 2d 775 (Fla. 2d DCA 2003) and Borland v. State, 848 So. 2d 1288 (Fla. 2d DCA 2003),. Delidle argues the trial court should have afforded him an evidentiary hearing to determine if DNA evidence existed. We disagree and affirm. In 1992, Delidle entered ple…
-
Caymitte v. State, 868 So. 2d 681 (Fla. 4th DCA 2004)…Criminal Procedure 3.853. We reverse and remand for further proceedings upon finding Caymitte’s motion legally sufficient and warranting a hearing to determine if DNA evidence existed. Hitchcock v. State, 866 So. 2d 23 (Fla.2004); Zollman v. State, 854 So. 2d 775 (Fla. 2d DCA 2003). STONE, KLEIN and MAY, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Zollman v. State, 820 So. 2d 1059 (Fla. 2d DCA 2002)
- Borland v. State, 848 So. 2d 1288 (Fla. 2d DCA 2003)