doctor putting dna sample in test tubeDNA evidence can be persuasive in a criminal case, but what happens if DNA evidence only becomes available after you are already convicted of a crime? In Florida, you may be able to pursue a post-conviction motion for DNA testing that could change your sentence or even overturn your conviction.

Post-conviction motions for DNA testing can be complicated. Below, we answer some commonly asked questions on this topic, and we encourage you to contact us directly with any additional questions.

Florida Post-Conviction Relief Attorney Answers Questions About DNA Evidence

Can I File a Post-Conviction Motion for DNA Testing?

Florida law allows a person who was convicted of a felony, or a person who pled guilty or nolo contendere before July 1, 2006, to file a post-conviction motion for DNA testing if the person was sentenced for the crime. A post-conviction motion for DNA testing is also referred to as a Rule 3.853 motion in Florida.

What Should Be in My Post-conviction Motion for DNA Testing?

Your motion must be made under oath and must include:

  • A statement of facts to support your motion. Your statement of facts must include: (1) a description of the physical evidence containing DNA to be tested; (2) if known, the present location or last known location of the evidence; and (3) if known, a statement about how the evidence was originally obtained.
  • A statement that the evidence was not previously tested for DNA or that the results of any previous DNA testing were inconclusive and that scientific developments in DNA testing would likely prove that you were not the person who committed the crime.
  • A statement that you are innocent and a description of how the DNA testing will exonerate you for the crime or mitigate your sentence.
  • A statement that identification of the defendant is genuinely disputed and why
  • Any other facts that you believe are relevant to your motion
  • A certification that a copy of the petition has been served on the prosecutors.

What Happens When the Court Receives My Motion for Post-Conviction DNA Relief?

Once the court receives your motion, the clerk will file it and deliver the court file to the judge. The judge will review your motion and then may either:

  • Deny your motion if it doesn’t meet the requirements
  • Order prosecutors to respond to your motion within 30 days.

After the court receives the prosecutor’s response, the court will review it and either:

  • Enter a decision on the merits of your motion
  • Schedule a hearing

When the court makes a ruling on your motion, it must decide:

  • Whether you have shown that physical evidence that may contain DNA still exists
  • Whether the results of DNA testing of the physical evidence would be admissible at trial
  • Whether there is a reasonable probability that you would have been acquitted or received a lesser sentence if the DNA evidence had been admitted at trial

Who Pays for the DNA Testing?

Generally, you will pay for the DNA testing unless you are indigent. If you do not have the means to pay, the state will pay for the DNA testing.

Who Does the DNA Testing?

The Florida Department of Law Enforcement, or its designee, will perform the DNA testing, and the results will be provided to you, the prosecutor, and the court.

What Evidence May be Considered in My Post-conviction Motion for DNA Testing?

The court may only consider physical evidence that was collected at the time your crime was investigated and that may contain DNA that would exonerate or mitigate your sentence.

How Long Do I Have to File a Post-conviction Motion for DNA Testing?

There is no time limit for filing a post-conviction motion for DNA testing. You may file the motion at any time.

Do I Need an Attorney to File a Post-conviction Motion for DNA Testing?

Yes. Your freedom, reputation, and future may be at stake. You deserve to work with a lawyer who is experienced in post-conviction relief motions and who will fight to make sure all of your rights are protected.

Contact Attorney Robert Malove today to find out more about whether a Rule 3.853 motion may be right for you or whether there are other ways to protect your rights after a criminal conviction.

Robert Malove
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South Florida Criminal Defense Attorney