JAMES BAIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Bain appealed the denial of his motions for DNA testing under Florida Rule of Criminal Procedure 3.853, filed over 30 years after his 1974 conviction for rape, burglary, and kidnapping. The appellate court reversed the denial of his pro se DNA testing motion, finding it timely under an amended statute with no filing deadline, while affirming the denial of his formal motion for DNA evidence examination as facially insufficient.
The court held that Bain's pro se motion for DNA testing was timely because an amendment to section 925.11, Florida Statutes, effective June 23, 2006, imposed no time limit on rule 3.853 motions filed on or after October 1, 2005, and the 2003 dismissal without prejudice set no filing deadline. However, the formal motion for DNA evidence examination was facially insufficient, and its denial was properly affirmed.
[1] A statutory amendment removing time limits for postconviction DNA testing motions applies to motions filed on or after October 1, 2005.
[2] A postconviction court cannot deny a refiled motion as untimely when it dismissed the initial motion without prejudice and set no filing deadline.
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Join FLexlaw to unlock all legal intelligence“due to an amendment to section 925.11, Florida Statutes, enacted on June 23, 2006, no time limit applies to rule 3.853 motions for postconviction DNA testing filed on or after October 1, 2005”
Establishes the statutory change that eliminated the timeliness bar to Bain's 2006 motion
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Join FLexlaw to unlock all legal intelligenceBain was convicted in 1974 of rape, burglary with assault, and kidnapping following a jury trial. In 2003, he filed a rule 3.853 motion for DNA testin…
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SALCINES, Judge.
James Bain appeals the summary denial of his motion for DNA evidence examination and his pro se motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We affirm the postcon-viction court’s denial of the motion for DNA evidence examination. We reverse the denial of the Bain’s pro se motion for DNA testing and remand for further proceedings.
On May 23, 1974, Bain was convicted of rape, burglary with an assault, and kidnapping after a jury trial. On September 30, 2003, Bain filed a rule 3.853 motion, which the postconviction court dismissed without prejudice to Bain filing a facially sufficient motion. On May 23, 2006, more than two years later, Bain filed the rule 3.853 motions that are the subject of this appeal. In summarily denying both motions, the postconviction court found that they were untimely, in part because Bain’s delay in refiling was an abuse of process.
However, due to an amendment to section 925.11, Florida Statutes, enacted on June 23, 2006, no time limit applies to rule 3.853 motions for postconviction DNA testing filed on or after October 1, 2005. See Ch. 2006-292, §§ 1, 4, at 2204-7, Laws of Fla. (codified in § 925.11, Fla. Stat. (2006)). Moreover, in dismissing Bain’s 2003 rule 3.853 motion without prejudice, the postconviction court set no filing deadline. Consequently, the postconviction court erroneously denied the 2006 motions as untimely. See Jumper v. State, 903 So. 2d 264 (Fla. 2d DCA 2005) (holding that postconviction court could not deny a refilled rule 3.850 motion as untimely when postconviction court did not set a filing deadline in dismissing defendant’s first rule 3.850 motion without prejudice to refiling.)
Because Bain timely filed his pro se motion for DNA testing the postconviction court should have addressed the motion on the merits. Accordingly, on remand, the postconviction court shall require the State to respond and, if necessary, hold an evidentiary hearing in this matter. See Fla.R.Crim. P. 3.853; Girley v. State, 935 So. 2d 55 (Fla. 1st DCA 2006).
Although Bain’s motion for DNA evidence examination also was timely, it is facially insufficient. Ordinarily, a facially insufficient rule 3.853 motion should be dismissed or denied without prejudice to the refiling of a facially sufficient motion. See, e.g., Harvey v. State, 925 So. 2d 1111 (Fla. 2d DCA 2006); Lemay v. State, 921 So. 2d 853 (Fla. 2d DCA 2006); Scarborough v. State, 906 So. 2d 379 (Fla. 2d DCA 2005). However, Bain requests the same relief for the same reasons in both motions. In light of our holding on Bain’s pro se motion for DNA testing, we affirm the postconviction court’s denial of Bain’s motion for DNA evidence examination.
Affirmed in part, reversed in part, and remanded.
SILBERMAN and KELLY, JJ., Concur.
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Rosa v. State, 147 So. 3d 583 (Fla. 4th DCA 2014)…nation, the movant may not have a meaningful opportunity to cure the deficiency. “Ordinarily, a facially insufficient rule 3.853 motion should be dismissed or denied without prejudice to the refiling of a facially sufficient motion.” Bain v. State, 963 So. 2d 913, 914 (Fla. 2d DCA 2007). The State acknowledges that typically our affir-mance of a denial like this would be without prejudice to the refiling of a facially sufficient motion. See, e.g., Harvey v. State, 925 So. 2d 1111 (Fla. 2d DCA 2006); Lemay v.…
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Bain v. State, 9 So. 3d 723 (Fla. 2d DCA 2009)…the perpetrator. The postconviction court denied Bain’s motion as untimely. He appealed, and this court reversed because “no time limit applies to rule 3.853 motions for postconviction DNA testing filed on or after October 1, 2005.” Bain v. State, 963 So. 2d 913, 914 (Fla. 2d DCA 2007). This court directed the postconviction court to order the State to respond to the motion and to hold a hearing if necessary. Id.; see also Fla. R.Crim. P. 3.853(c)(2). On remand, the State responded that certain physical ex…
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Thomas v. State, 3 So. 3d 387 (Fla. 2d DCA 2009)…ction court specifically advises the defendant that failing to file an amended motion within the court-imposed time frame will result in the defendant being forever barred from seeking postconviction DNA testing. We recognize that in Bain v. State, 963 So. 2d 913, 914 (Fla. 2d DCA 2007), this court stated that Bain’s amended rule 3.853 motion could not be dismissed as untimely because “the postconviction court set no filing deadline” for the amended motion. However, that statement was dicta, and the primai'y…
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
- Rasheed Randolph v. State, 903 So. 2d 264 (Fla. 2d DCA 2005)
- Harvey v. State, 925 So. 2d 1111 (Fla. 2d DCA 2006)
- Artis Scarborough v. State, 906 So. 2d 379 (Fla. 2d DCA 2005)
- Lemay v. State, 921 So. 2d 853 (Fla. 2d DCA 2006)
- Girley v. State, 935 So. 2d 55 (Fla. 1st DCA 2006)