HECTOR ROSA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rosa appeals the trial court's summary denial of his Rule 3.853 motion for DNA testing. The appellate court affirmed the denial but held it was facially insufficient rather than barred as successive, allowing Rosa to refile a properly pleaded motion without prejudice.
The court affirmed the denial but rejected the State's successive motion argument because Rosa sought different relief involving different items. The motion was properly denied as facially insufficient because it did not assert that identity was a genuinely disputed issue in the case, as required by Rule 3.853(b)(4). The affirmance is without prejudice to Rosa filing a facially sufficient motion if done in good faith.
[1] A motion for DNA testing under Florida Rule of Criminal Procedure 3.853 is not successive if the movant seeks different relief or raises substantially different grounds t…
[2] A trial court should explain the basis for denying a motion for DNA testing under Florida Rule of Criminal Procedure 3.853 to allow the movant a meaningful opportunity to…
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Join FLexlaw to unlock all legal intelligence“Appellant sought different relief ... and did not raise 'substantially the same ground' as previously raised.”
Establishes that the second motion was not barred as successive because it involved different DNA items than the prior motion.
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Join FLexlaw to unlock all legal intelligenceRosa had previously filed a Rule 3.853 motion for DNA testing of certain items, which was denied and affirmed on appeal. He then filed a second motion…
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We affirm the trial court’s order which summarily denied appellant’s Florida Rule of Criminal Procedure 3.853 motion for DNA testing.
We disagree with the State’s position that the motion was barred as successive. Appellant filed a prior motion for DNA testing of different items which was denied and affirmed by this Court on appeal. Rosa v. State, 881 So.2d 1125 (Fla. 4th DCA 2004). “[Ajppellant sought different relief ... and did not raise ‘substantially the same ground’ as previously raised.” Ochala v. State, 93 So.3d 1167, 1169 (Fla. 1st DCA 2012).
Rule 3.853(c)(2) provides: “The court shall review the motion and deny it if it is facially insufficient.” The trial court provided no explanation for its denial in this case. The better practice is for the trial court to explain the basis for denial in its order. See Anderson v. State, 627 So.2d 1170 (Fla.1993); Terry v. State, 970 So.2d 863 (Fla. 4th DCA 2007); Dieudonne v. State, 958 So.2d 516 (Fla. 4th DCA 2007). Without an explanation, 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. State, 921 So.2d 853 (Fla. 2d DCA 2006).
*584We agree that the motion was facially insufficient because it did not assert that identity was a genuinely disputed issue in this case. Fla. R. Crim. P. 3.853(b)(4). Appellant’s motion alleged that none of his DNA would be found in the victim’s sexual assault kit. He does not explain how, under- the circumstances of this case, this would exonerate him or mitigate the sentence that he received.
Our affirmance is without prejudice to appellant filing a facially sufficient motion but only if he can do so in good faith. See Oquendo v. State, 2 So.3d 1001, 1005 (Fla. 4th DCA 2008) (citing Spera v. State, 971 So.2d 754, 762 (Fla.2007)). We caution appellant, and all postconviction movants, that sanctions may be imposed for false, frivolous, or bad faith filing. Oquendo, 2 So.3d at 1006-07.
Affirmed.
DAMOORGIAN, C.J., LEVINE and CONNER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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McCLOUD v. State, 177 So. 3d 310 (Fla. 4th DCA 2015)…a Rule of Criminal Procedure 3.853(b)(4). Also, the motion was not verified as required in Rule 3.853(b). Affirmance is without prejudice to appellant promptly filing a legally sufficient motion if he can do so in good faith. Rosa v. [*311] State, 147 So. 3d 583, 584 (Fla. 4th DCA 2014) (citing Oquendo v. State, 2 So. 3d 1001, 1005 (Fla. 4th DCA 2008)). Affirmed without prejudice. TAYLOR and LEVINE, JJ., concur.…
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Bridges v. State, 251 So. 3d 275 (Fla. 5th DCA 2018)…PER CURIAM. [*276] AFFIRMED without prejudice to Appellant filing a facially sufficient motion if he can do so in good faith. See Rosa v. State , 147 So. 3d 583, 584 (Fla. 4th DCA 2014). COHEN, C.J. and EVANDER and TORPY, JJ., concur.…
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Stucky v. State, 251 So. 3d 356 (Fla. 5th DCA 2018)…rocedure 3.853 motion for DNA testing because it was facially insufficient. See Fla. R. Crim. P. 3.853(c)(2). We agree and affirm without prejudice. Appellant may refile a facially sufficient motion if he can do so in good faith. See Rosa v. State , 147 So. 3d 583, 584 (Fla. 4th DCA 2014) ; Luckner v. State , 979 So. 2d 1121, 1121-22 (Fla. 3d DCA 2008). AFFIRMED. COHEN, C.J., LAMBERT and EISNAUGLE, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Anderson v. State, 627 So. 2d 1170 (Fla. 1993)
- Oquendo v. State, 2 So. 3d 1001 (Fla. 4th DCA 2008)
- Dieudonne v. State, 958 So. 2d 516 (Fla. 4th DCA 2007)
- Ramad Terry v. State, 970 So. 2d 863 (Fla. 4th DCA 2007)
- Harvey v. State, 925 So. 2d 1111 (Fla. 2d DCA 2006)
- Bain v. State, 963 So. 2d 913 (Fla. 2d DCA 2007)
- Lemay v. State, 921 So. 2d 853 (Fla. 2d DCA 2006)
- Ochala v. State, 93 So. 3d 1167 (Fla. 1st DCA 2012)