Roberto G. Ordonez-Medina, Appellant,
The State of Florida, Appellee.
final until disposition of timely filed motion for rehearing.
Appeal under Florida Rule of Appellate Procedure 9.141(b)(2)
from the Circuit Court for Miami-Dade County Lower Tribunal
No. 04-14122, Nushin Sayfie, Judge.
G. Ordonez-Medina, in proper person.
Jo Bondi, Attorney General, for appellee.
SALTER, FERNANDEZ and LUCK, JJ.
Ordonez-Medina appeals from the trial court's order
denying his motion for postconviction DNA testing, pursuant
to Florida Rule of Criminal Procedure 3.853. The trial court
found Ordonez-Medina had not met his burden to show a
reasonable probability that he would have been acquitted if
the DNA evidence from the firearm had been admitted at trial.
See Lambrix v. State, No. SC16-56, 2017 WL 931105,
at *6 (Fla. Mar. 9, 2017) ("[I]t is the defendant's
burden to explain, with reference to specific facts about the
crime and the items requested to be tested, how the DNA
testing will exonerate the defendant of the crime or will
mitigate the defendant's sentence. [A] trial court does
not err in denying a motion for DNA testing where the
defendant cannot show that there is a reasonable probability
that the absence or presence of DNA at a crime scene would
exonerate him or lessen his sentence." (quotations
omitted, second alteration in original)). For three reasons,
we agree with the trial court's finding and affirm.
Ordonez-Medina confessed to shooting his ex-girlfriend.
Ordonez-Medina gave a recorded confession that he grabbed the
firearm, pointed it at the victims' vehicle, and fired
into the vehicle, striking his ex-girlfriend on the left side
of her hip. Earlier, Ordonez-Medina confessed to a different
law enforcement officer that he shot the victim. And even
earlier, shortly after the attempted murder, Ordonez-Medina
spontaneously stated to a third law enforcement officer that
he shot the victim.
a law enforcement officer eyewitness saw Ordonez-Medina with
a firearm in his hand immediately after the shooting. This
eyewitness officer heard the argument between Ordonez-Medina
and his ex-girlfriend, heard the shooting, saw Ordonez-Medina
follow the victims in the car, and followed Ordonez-Medina as
he had the firearm in his hand. The officer, after he stopped
Ordonez-Medina car, took possession of the firearm from the
front passenger seat.
Ordonez-Medina faulted his trial counsel for not pursuing an
accident/diminished capacity defense. In Ordonez-Medina's
2012 post-conviction motion, he alleged that his trial
counsel was ineffective for failing to offer evidence that
the shooting was an accident or the result of diminished
capacity because of a mental illness.
Florida Supreme Court, in a series of DNA testing cases, has
concluded that with confessions, eyewitness testimony, and an
accident defense, the defendant cannot show a reasonable
probability of an acquittal. The identity of the defendant in
these kinds of cases, the Court has explained, is not in
doubt. See Hitchcock v. State, 991 So.2d 337, 348
(Fla. 2008) ("We agree with the circuit court's
finding that Hitchcock has not demonstrated how DNA testing
would result in newly discovered evidence likely to produce
an acquittal on retrial. DNA analysis of the pubic hairs
found on the victim would not exonerate Hitchcock because he
admitted having sexual intercourse with her.");
Sireci v. State, 908 So.2d 321, 325 (Fla. 2005)
("[W]e conclude that, in light of the other evidence of
guilt, there is no reasonable probability that Sireci would
have been acquitted or received a lesser sentence if the
State had not introduced into evidence the hair on
Poteet's sock. As we have noted, seven witnesses
testified that Sireci admitted to them that he killed Poteet.
We find no error in this regard."); Robinson v.
State, 865 So.2d 1259, 1265 (Fla. 2004) ("Robinson
failed to state in the motion how DNA testing of all the
items listed would exonerate him of or even mitigate his
sentences for robbery, sexual battery, and first-degree
murder. Notably, Robinson stipulated that he shot the victim
twice in the head, but claimed that the first shot was
accidental and took place after the two engaged in consensual
sex. Thus, his identity and physical contact with the
decedent are not at issue. (citation omitted)); see also
Hartline v. State, 806 So.2d 595, 595-96 (Fla. 5th DCA
2002) ("[W]e agree with the court below that there is no
reasonable probability of acquittal if the DNA evidence was
reexamined. Hartline's identity was not in question and
based on the sexual activity with the child victim which he
admitted performing, the victim's testimony, and acts an
eyewitness described, even exculpatory DNA results would not
have been given any weight by the jury.").
we have the same kind of evidence. Ordonez-Medina confessed;
an eyewitness saw him with a gun immediately after the
shooting; and his preferred defense was that the shooting was
an accident (not that he didn't do it). With all this,
Ordonez-Medina has not shown a reasonable probability that he