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Mosley v. State

Florida Court of Appeals, First District

December 6, 2019

Samuel M. Mosley, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Okaloosa County. Michael A. Flowers, Judge.

          Samuel M. Mosley, pro se, Appellant.

          Ashley Moody, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.

          B.L. Thomas, J.

         Appellant filed a motion for postconviction DNA (deoxyribonucleic acid) testing of evidence under Florida Rule of Criminal Procedure 3.853. The evidence was collected during the investigation of a brutal rape of a 14-year old girl who was choked into unconsciousness during the crime and suffered extensive hemorrhaging of her eyes and face as well as large bruises on her neck and back. Appellant was convicted at trial of sexual battery with the use of force likely to cause serious personal injury under section 794.011(3), Florida Statutes, with a special finding that he was more than 18-years of age (he was 42-years old at the time of the crime) and the victim was under the age of 18. He had an extensive criminal history, and his scoresheet required a minimum sentence of 30 years in prison. He was sentenced to life in prison.

         On appeal, he argued only that the trial court erred in failing to conduct a proper hearing to allow him to discharge his counsel for purposes of sentencing. This Court affirmed his conviction without opinion. Mosley v. State, 244 So.3d 198 (Fla. 1st DCA 2018).

         After he filed his unsworn motion for DNA testing, the trial court dismissed the motion because Appellant failed to submit the motion under oath to comply with Florida Rule of Criminal Procedure 3.853. Appellant now argues that the dismissal was in error, as he should have been allowed to amend the motion to comply with the rule. See Hickey v. State, 763 So.2d 1213, 1214 (Fla. 1st DCA 2000). But because the trial transcripts and Appellant's own motion demonstrate that the requested DNA testing would not exonerate him or mitigate his sentence, and his identity as the perpetrator of the sexual battery was not in dispute, we affirm the dismissal. Gresham v. State, 181 So.3d 1207 (Fla. 1st DCA 2015) (finding harmless error in denying motion for DNA testing on merits without requiring State response where it was apparent claims for testing were meritless as it was undisputed that no DNA evidence linked appellant to victim, but other evidence supported conviction); Menendez v. State, 41 So.3d 1066, 1067-68 (Fla. 3d DCA 2010) (although trial court denied motion for DNA testing for wrong reason, court affirmed as evidence sought for testing would not exonerate defendant convicted of murdering a prostitute where he confessed to murder and to paying victim for sex; evidence that prostitute had sex with other men "would not have created a reasonable probability that that movant would have been acquitted or would have received a lesser sentence").

         Facts

         In 2016, a 14-year-old girl had an argument with her mother in south Alabama. To avoid further arguments, the girl decided to hitchhike to Florida to see a friend. The victim was dropped off late at night in Crestview, about three miles from her friend's home. As she began to walk down the street, Appellant drove near her, honked his horn repeatedly, and when the girl decided to see why Appellant was seeking her attention, he asked her if she wanted some money. Realizing that Appellant was attempting to engage in prostitution, the victim immediately told him she was only 14-years old and was not a prostitute.

         This did not stop Appellant from attempting to engage the young girl, and he continued to offer her money. Thinking that he might be asking her to do a chore, she asked him if he meant that he would pay her to do a chore. She became afraid, and to avoid "something worse from happening" and possibly being "shoved into the trunk," the victim entered Appellant's car and they drove to a car wash so she could vacuum the car. She took two dollars from Appellant to get change for the vacuum, but the machine would not work. The victim returned to Appellant's car, where they engaged in small talk. Appellant then asked her if she had engaged in sex. The victim replied that she had never had sex. When someone Appellant seemed to know drove into the car wash, he immediately drove away from the car wash to park in another area, which made the victim uneasy.

         Appellant then began urging the victim to have sex with him. At this point, the victim became very afraid and uncomfortable. She reminded Appellant she was only 14-years old. She told him she did not want to have sex with him and that he could do that with someone else. After he continued to pressure her, she tried to leave the car. Appellant shoved his forearm against her neck, pinning her to the seat, and pulled her back into the car. He choked her until she lost consciousness. When she regained consciousness, Appellant had pulled her pants down and was raping her. The victim cried out, but Appellant screamed at her, telling her to "shut up." When the victim began to cry again, Appellant choked her. "If I didn't stop crying then he would be choking me and then he would give me a few seconds to breathe."

         When Appellant finished raping the victim, she managed to get out of the car. He asked her if she wanted him to take her to the police station, but she told him she would not tell anyone what happened and "to stay away from me." She managed to walk to another location where she found a woman working. Barely able to breathe, the victim tried to tell the woman about the sexual battery. The victim got a ride to her friend's house, whose mother quickly realized that the girl had been raped. The friend's mother called the victim's mother and promptly took the victim to the hospital.

         Interviewed at the hospital by an Okaloosa Sheriff's investigator, the victim could barely speak due to the choking injuries to her throat, and the investigator observed that her eyes were "extremely red." She later gave a precise description of Appellant's car interior, including a case in the back seat containing an assortment of compact discs and watches. She described Appellant's gold teeth, long hair, and tattoos. She described the seat covers on the two front seats, including the seat in which she was sexually assaulted. She described the color of the car's ...


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