RICHARD NEWBERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Newberry challenged the denial of his petition for post-sentencing DNA testing under Florida Rule of Criminal Procedure 3.853. The court affirmed the denial, holding that DNA tests showing his guilt are not "inconclusive" merely because the defendant contested their reliability or because newer testing techniques might be more refined.
The court held that Newberry cannot obtain additional DNA testing under Rule 3.853 because the original DNA tests were not inconclusive. Tests are not rendered inconclusive merely because a defendant contested their reliability at trial or because newer testing techniques might be more refined.
[1] A petition for post-sentencing DNA testing under Florida Rule of Criminal Procedure 3.853 must state that the evidence was not previously tested for DNA, or that previous…
[2] DNA testing is not considered "inconclusive" for the purposes of post-sentencing DNA testing when DNA tests were performed, experts testified to their reliability and a m…
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“In order to obtain testing pursuant to that rule, the petition must include 'a statement that the evidence was not tested previously for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result.'”
Establishes the statutory requirement for post-sentencing DNA testing petitions under Rule 3.853(b)(2)
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceNewberry was convicted in 1991 of sexual battery based on definitive DNA testing evidence that matched his DNA to evidence from the victim. At trial, …
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PER CURIAM.
We withdraw our previously issued opinion and substitute the following in its place.
Appellant challenges the trial court’s summary denial of his petition for post-sentencing DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. In order to obtain testing pursuant to that rule, the petition must include “a statement that the evidence was not tested previously for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result.” Fla. R.Crim. P. 3.853(b)(2). Because appellant cannot show that the DNA testing conducted was “inconclusive,” we affirm.
In appellant’s 1991 trial for sexual battery, the state produced evidence of definitive DNA testing pointing to appellant as the perpetrator. Appellant presented evi dence contesting the reliability of the tests, but the jury rejected his evidence. This court affirmed his conviction. See New-berry v. State, 616 So .2d 1093 (Fla. 4th DCA 1993). He now claims that the tests were “inconclusive” because developments in DNA testing techniques have improved and would produce more reliable results. Although there is no case law interpreting what is meant by “inconclusive,” we do not understand it to encompass cases such as this one, where (1) DNA tests were performed; (2) experts testified as to their reliability and the defendant’s DNA matched the DNA found on the victim, but (3) the defendant offered contrary evidence challenging the reliability of the pri-or testing methods. The tests were not inconclusive, merely contested. Neither Rule 3.853 nor the statute allowing post-conviction testing, section 925.11(2)(a), Florida Statutes (2002), provides for additional testing in such circumstances.
Affirmed.
WARNER, SHAHOOD and HAZOURI, JJ., concur.
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Holmes v. State (Fla. 1st DCA 2020)…in located in the victim’s mouth, and the victim identified Appellant as the perpetrator in court. Appellant fails to establish how the 2010 DNA test was inconclusive, especially considering the statistical value of the match. See Newberry v. State, 870 So. 2d 926, 927 (Fla. 4th DCA 2004) (holding defendant failed to establish DNA testing was inconclusive where “(1) DNA tests were performed; (2) expert testified as to their reliability and the defendant’s DNA matched the DNA found on the victim, but (3) the d…
Authorities Cited
- Newberry v. State, 616 So. 2d 1093 (Fla. 4th DCA 1993)