SHURON HESTER
v.
STATE OF FLORIDA
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Appellant, convicted of sexual battery and lewd/lascivious molestation of a child, challenged the trial court's denial of his motion for postconviction DNA testing under Florida Rule of Criminal Procedure 3.835. The appellate court affirmed the denial, finding that Appellant failed to establish how DNA testing would create a reasonable probability of acquittal.
The court affirmed the denial of Appellant's DNA testing motion because he failed to lay out with specificity how DNA testing of the requested items would result in a reasonable probability of acquittal, as required by Rule 3.835 and Hitchcock v. State.
[1] A motion for postconviction DNA testing must specify with particularity for each item how DNA testing would give rise to a reasonable probability of acquittal or a lesser…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Rule 3.853 requires the movant to 'lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence.'”
The court citing the applicable rule to explain what appellant failed to establish
In 2013, a jury convicted Appellant of sexually abusing his stepdaughter when she was ten years old, including touching her vagina and hitting her wit…
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August 29, 2019 B.L. THOMAS, J.
Appellant challenges the trial court’s denial of his motion for postconviction DNA testing filed under Florida Rule of Criminal Procedure 3.835. Because Appellant’s claims do not establish a reasonable probability that he would be acquitted at trial, we affirm.
In 2013, a jury found Appellant guilty of sexual battery on a victim less than twelve years of age and lewd or lascivious molestation of a person less than eighteen years of age. At trial, the victim testified that when she was ten years old, Appellant, her stepfather, entered her bedroom at night and touched her vagina with his hands and penis. She testified that Appellant hit her on the thigh with a belt or cord, from which she still had a mark. She also testified that Appellant would threaten to beat her if she reported the crimes.
The court sentenced Appellant to life in prison for the sexual battery count and to a consecutive fifty-year sentence for the lewd and lascivious molestation count. After his conviction, Appellant filed pro se motions to withdraw plea, correct sentence, mitigate sentence, and for postconviction relief alleging ineffective assistance of counsel, all of which were denied.
In 2018, Appellant filed the instant motion for DNA testing. In his motion, Appellant raised three claims that the postconviction court properly denied as successive. He also requested the DNA testing of “[a]ll items the JSO collected; (i.e. bed sheets, underwear, clothes) any form, of items that can be tested to clear my name.” Appellant made only vague references as to how DNA testing related to his case.
Rule 3.853 requires the movant to “lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence.” Hitchcock v. State, 866 So. 2d 23, 27 (Fla. 2004). Appellant did not explain with specificity, or indeed at all, how DNA testing of the named items would create a reasonable probability of his acquittal. He stated that “there could have been a presence or non-presence of bodily fluids on the sheets or underwear,” but did not assert whether these fluids belonged to him or some other party. Further, he made no assertion as to how the “presence or non-presence” of such fluids would lead to his acquittal but stated only that testing “could” show the jury that the fluids “could” be present or not present. Because Appellant failed to establish how DNA testing would create a reasonable probability of his acquittal, the postconviction court properly denied his motion.
AFFIRMED.
ROWE and OSTERHAUS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
_____________________________ Shuron Hester, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee.