NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOSEPH WRIGHT, )
)
Appellant, )
)
v. ) Case No. 2D15-77
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed September 30, 2015.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Polk County; Roger A. Alcott, Judge.
PER CURIAM.
Joseph Wright appeals the order denying his motion for postconviction
DNA testing under Florida Rule of Criminal Procedure 3.853. We reverse and remand
for the postconviction court to comply with the requirements of rule 3.853.
Wright was convicted after a jury trial in 1982 of sexual battery,
aggravated battery, and trespass. In 2004, the circuit court granted Wright's motion for
DNA testing, but the results were inconclusive. Alleging that a new DNA test has been
available since 2008 that would produce an accurate result showing that he was not the
perpetrator, Wright filed another facially sufficient rule 3.853 motion in 2014 requesting
DNA testing of the same items that were tested previously. See Fla. R. Crim. P.
3.853(b) (setting forth the required contents of a motion under this rule). Without
addressing Wright's allegation that a new DNA test exists, the postconviction court
denied his motion, finding no need to retest the same items.
The postconviction court erred in denying Wright's motion without first
ordering a response from the State. See Fla. R. Crim. P. 3.853(c)(2) ("If the motion is
facially sufficient, the prosecuting authority shall be ordered to respond to the motion
within 30 days or such other time as may be ordered by the court."); see Brown v. State,
967 So. 2d 398, 399 (Fla. 1st DCA 2007) (noting that the trial court ordered the State to
respond because the appellant's motion was facially sufficient). The court may deny the
motion outright only if it finds it facially insufficient. See Fla. R. Crim. P. 3.853(c)(2).
Accordingly, we reverse and remand with directions that the
postconviction court direct the State to respond to Wright's motion. "Upon receipt of the
response of the prosecuting authority, the court shall review the response and enter an
order on the merits of the motion or set the motion for hearing." Fla. R. Crim. P.
3.853(c)(3).
Reversed and remanded.
ALTENBERND, WALLACE, and CRENSHAW, JJ., Concur.
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