FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
Appeal from the Circuit Court for Volusia County, Leah R.
Melissa Montle and Seth E. Miller, of Innocence Project of
Florida, Inc., Tallahassee, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean
Parrish, Assistant Attorney General, Daytona Beach, for
Poole, Jr., appeals the summary denial of his motion for DNA
testing filed pursuant to Florida Rule of Criminal Procedure
3.853. The postconviction court's one-page unelaborated
denial order was entered without ordering the State to
respond to the motion and without any court records attached
to the order. Due to these deficiencies, we reverse and
1981, following a jury trial, Poole was convicted of
kidnapping, sexual battery, robbery, and aggravated assault.
According to the victim's testimony, Poole was one of the
three perpetrators of these crimes against her. Poole denied
committing the crimes or even being present when the crimes
were committed. The objective trial evidence that the State
used to link Poole to the crimes was that blood type
"O" was discovered at the crime scene and that
Poole has type "O" blood. No other scientific tests
were performed on other evidence prior to trial, which
consisted of pubic hairs, blood, semen, and oral swabs.
Poole's convictions were affirmed on direct appeal.
Poole v. State, 413 So.2d 898 (Fla. 5th DCA 1982).
Rule of Criminal Procedure 3.853(d) provides that a
"motion for postconviction DNA testing may be filed or
considered at any time following the date that the judgment
and the sentence in the case becomes final." Prior to
Poole's present motion, in 2012, Poole, by counsel, moved
for DNA testing. Following an evidentiary hearing, the
postconviction court granted Poole's motion in part. The
court found that Poole met his burden of proof that there
exists a reasonable probability that he would have been
acquitted if the DNA evidence had been admitted at trial. The
court ordered the Florida Department of Law Enforcement
("FDLE") to perform the DNA testing, declining
Poole's request for the DNA testing to be conducted by an
accredited laboratory other than the FDLE because Poole had
not established the requisite "good cause" under
rule 3.853(c)(7). We affirmed the State's appeal of this
order without opinion. State v. Poole, 162 So.3d
1039 (Fla. 5th DCA 2015).
FDLE performed the DNA testing on various items of evidence
and issued a report that was favorable to Poole but did not
completely exonerate him. Poole, through counsel, then sought
the unredacted FDLE case file for review by his own DNA
expert to determine whether additional, more sensitive DNA
testing on these same items of evidence that had not been
performed by the FDLE could exonerate him. Poole eventually
moved to compel the production of this information, which the
has now filed the instant motion for additional testing,
attaching an affidavit from Dr. Julie Heinig, the laboratory
director in the forensics department of the DNA Diagnostic
Center located in Fairfield, Ohio, in support of his motion.
Dr. Heinig opined that she agreed with the results and
conclusions in the FDLE report but that more advanced and
sensitive DNA testing, which was not performed by the FDLE,
would be particularly useful in this case and may achieve
more robust and complete DNA profiles, especially on the more
degraded samples tested. Dr. Heinig further opined that there
was no scientific reason not to perform this additional
testing and that her lab is accredited and has both the
capability and the extensive experience to perform this more
particularized DNA testing in these types of cases. Finally,
Poole alleged that he would bear the cost of this additional
testing at this independent laboratory.
3.853(c) sets forth the procedure that the court must follow
where, as here, the motion for postconviction DNA testing is
facially sufficient. First, the court must order the
prosecuting authority to respond to the motion within thirty
days or such other time as determined by the court. Fla. R.
Crim. P. 3.853(c)(2). Thereafter, upon receipt of this
response, the court shall review the response and then either
enter an order on the merits or set the motion for hearing.
Id. at 3.853(c)(3).
postconviction court erred when it denied Poole's motion
without holding an evidentiary hearing or attaching to the
order portions of the record conclusively refuting
Poole's motion. See Girley v. State, 935 So.2d
55, 56 (Fla. 1st DCA 2006); Reddick v. State, 929
So.2d 34, 36-37 (Fla. 4th DCA 2006); Schofield v.
State, 861 So.2d 1244, 1246 (Fla. 2d DCA 2003). The
court also erred by ruling on the motion without requiring a
response from the State. See Girley, 935 So.2d at
we reverse the order on appeal and remand to the
postconviction court with directions that the court order the
State to file a response to the motion, and thereafter, upon
receipt and review of the response, to either set the motion
for hearing or enter an order on the merits. Moreover,
because the postconviction court previously held that Poole
met his evidentiary burden to demonstrate that there is a
reasonable probability that Poole would have been acquitted
if DNA evidence had been admitted at trial, the State's
response should, at a minimum, address whether it has any
objections to the additional, more sensitive DNA testing