NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
WILLIAM JOHN MONTEZ, )
DOC #166014, )
)
Appellant, )
)
v. ) Case No. 2D16-4525
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed October 4, 2017.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Hillsborough County; Kimberly K.
Fernandez, Judge.
William John Montez, pro se.
WALLACE, Judge.
William Montez appeals from the postconviction court's summary denial of
his second motion for postconviction DNA testing, which was filed under Florida Rule of
Criminal Procedure 3.853. Because the postconviction court failed to make a required
finding that there was reliable proof to establish the authenticity of the alleged murder
weapon that was submitted for DNA testing, we reverse and remand for an evidentiary
hearing to determine the item's authenticity.
The Factual and Procedural Background
Because we have previously discussed at length the facts of this case, we
will not recite them in detail here. See Montez v. State, 86 So. 3d 1243 (Fla. 2d DCA
2012). However, for purposes of this opinion, it suffices to say that in April 2000, Mr.
Montez was found guilty of first-degree murder and sentenced to life in prison. Over ten
years later, Mr. Montez filed his initial motion for postconviction DNA testing under rule
3.853. Mr. Montez requested DNA testing of the murder weapon, a black nylon
stocking, which was found tied in a knot around the victim's neck. This black nylon
stocking was admitted into evidence as State's Exhibit #5 at trial.1 The postconviction
court denied the motion, finding that Mr. Montez failed to demonstrate a reasonable
probability that the requested DNA testing would lead to his acquittal. On appeal, this
court reversed the postconviction court's summary denial of Mr. Montez's motion and
remanded for an evidentiary hearing. See Montez, 86 So. 3d at 1245.
Upon remand, the postconviction court entered an order granting Mr.
Montez's motion in November 2012. In addition to finding that the alleged murder
weapon still existed and that there was a reasonable probability that the defendant
could be acquitted based upon the results of DNA testing of the alleged murder
weapon, the postconviction court found, in pertinent part, as follows:
The Court hereby finds that DNA testing of the evidence
(State's Exhibit #5), the alleged murder weapon, likely would
be admissible at trial based upon the establishment of the
chain of custody maintained by law enforcement and the
Clerk of the Court, as the evidence custodian. There exists
reasonable proof to establish that any such DNA testing,
performed by the Florida Department of Law Enforcement
1
The nylon stocking appears to have been originally inventoried as Item
#12 by the Tampa Police Department.
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(FDLE) would be authentic and admissible at future
proceedings.
After granting the motion, the postconviction court entered another order releasing the
alleged murder weapon to the care, custody, and control of the Tampa Police
Department (TPD) for transport to FDLE. However, when the alleged murder weapon
was handed over to TPD for transport, the item was apparently found in an open,
unsealed paper bag.2 As a result, the unsealed paper bag containing the item was
placed in a manila envelope, which was sealed and given to FDLE for testing.
After FDLE completed its examination of the alleged murder weapon, the
postconviction court held an evidentiary hearing regarding the written results of the DNA
testing. Over Mr. Montez's objections that there were chain of custody and
contamination problems, a FDLE technician testified that she found the DNA of both Mr.
Montez and the victim on the alleged murder weapon. After the hearing concluded, the
postconviction court entered a "notice of compliance" with this court's mandate.
Consequently, Mr. Montez filed a petition for writ of mandamus in this court to compel
the circuit court to issue a final order on the postconviction DNA proceedings. We
dismissed the petition for Mr. Montez "to file a separate motion for postconviction DNA
testing under Florida Rule of Criminal Procedure 3.853." Montez v. State, 192 So. 3d
53 (Fla. 2d DCA 2015) (unpublished disposition).
Upon this court's dismissal of his petition, Mr. Montez filed a second
motion for postconviction DNA testing. In his motion, Mr. Montez requested the
2
At a status hearing, the assistant state attorney informed the court that
the alleged murder weapon "had been opened" and "exposed to the elements." At a
later evidentiary hearing regarding the DNA test results, an FDLE technician testified
that when she received the item for testing, it was found in an "unsealed" paper bag.
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postconviction court to conduct a DNA test of the actual murder weapon. Although he
acknowledged that a black stocking had been the subject of prior DNA testing, Mr.
Montez asserted that the postconviction court failed to make the requisite finding that
the item containing the tested DNA was authentic. In particular, Mr. Montez alleged that
FDLE tested the wrong nylon stocking because it was most likely mishandled or
replaced with an identical stocking.3 He further alleged that even if the actual murder
weapon was tested, the item was contaminated due to its mishandling and the fact that
it was found in an open, unsealed bag.
After finding that Mr. Montez's motion for postconviction DNA testing was
facially sufficient and then ordering the State to respond to it, the postconviction court
summarily denied the motion. It reasoned that because the alleged murder weapon had
"already been tested for DNA" and the test results matched the DNA profiles of both Mr.
Montez and the victim, no further testing was required. It further found that FDLE did
not test the wrong item because, at trial, a crime scene technician identified State's
Exhibit #5 as the stocking that was tied around the victim's neck. Accordingly, the
postconviction court concluded that because State's Exhibit #5 was released for DNA
testing in 2012, the correct item was tested.
Mr. Montez filed a motion for rehearing. In his motion, he argued that the
postconviction court not only relied improperly upon the inconclusive testimony of
3
In support of his allegation that the murder weapon could have been
mishandled or replaced with an identical stocking, Mr. Montez highlighted the TPD
Property Record Form, which was dated June 23, 1999. This form apparently indicates
that item #12 was placed into the same package with an identical black stocking. Mr.
Montez also appeared to argue that the tested nylon stocking was not the actual murder
weapon because the tested nylon stocking contained a knot and had hairs in it, whereas
State's Exhibit #5 allegedly did not have such features.
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certain witnesses but also failed to address the "serious chain of custody and laboratory
procedural errors." The postconviction court denied the motion, finding that even if a
different stocking had been substituted in the place of State's Exhibit #5, it "could not
order DNA testing of an item that cannot be found." The postconviction court further
reasoned that even if the original item had been replaced and then later found and
tested for DNA evidence, it would not be admissible in evidence at a future hearing
because the circumstances were indicative of probable tampering. This appeal
followed. Mr. Montez makes the same arguments on appeal.
Discussion
When a postconviction court enters an order on a motion for
postconviction DNA testing under rule 3.853, the court "must make the findings outlined
in rule 3.853(c)(5)." Montez, 86 So. 3d at 1244. Specifically, the postconviction court
must find:
(A) Whether it has been shown that physical evidence that
may contain DNA still exists.
(B) Whether the results of DNA testing of that physical
evidence likely would be admissible at trial and whether
there exists reliable proof to establish that the evidence
containing the tested DNA is authentic and would be
admissible at a future hearing.
(C) Whether there is a reasonable probability that the
movant would have been acquitted or would have received a
lesser sentence if the DNA evidence had been admitted at
trial.
Fla. R. Crim. P. 3.853(c)(5) (emphasis added); see also Montez, 86 So. 3d at 1244.
Here, as the rule clearly provides, the postconviction court was required to
make the above three findings when it ruled on Mr. Montez's first rule 3.853 motion.
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Although the postconviction court made the first and third findings, it failed to make the
second finding. More specifically, the postconviction court failed to determine whether
reliable proof existed to establish the authenticity of the black nylon stocking that was
submitted for DNA testing, i.e., it was the alleged murder weapon. Instead, the
postconviction court found that "there existed reasonable proof to establish that any
such DNA testing, performed by [FDLE] would be authentic and admissible at future
proceedings." To be sure, while rule 3.853 requires the postconviction court to find that
any DNA testing of the evidence would be admissible, it also requires the postconviction
court to find that reliable proof exists to establish that the item containing the tested
DNA is authentic. Here, no such proof was introduced into evidence at the hearing.
Indeed, the postconviction court's reliance upon the trial testimony of the crime scene
technician was not sufficient to establish reliable proof of the item's authenticity because
the testimony did not account for the twelve-year gap between the time of trial and the
time that the item was tested. Nor did the testimony account for the discovery of the
item in an allegedly open, unsealed paper bag before it was sent to FDLE for testing.
Accordingly, because the postconviction court failed to determine whether the tested
stocking was authentic, the postconviction court erred in relying upon the DNA results of
an unauthenticated item to deny Mr. Montez's second motion.
We express no opinion on whether the nylon stocking that was submitted
for testing was or was not the actual murder weapon. We also express no opinion on
whether the State will be required to submit this item for further testing or a different
item for initial testing. Instead, we hold only that based on the limited record before us,
an evidentiary hearing is necessary—as this court discussed in our 2012 opinion—to
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determine whether the tested nylon stocking was not contaminated and is what the
State claims it is, i.e., the murder weapon that was tied around the victim's neck. See
Swafford v. State, 946 So. 2d 1060, 1061 (Fla. 2006) (requiring the postconviction court
to "enter an order making findings as to whether the evidence which was tested is
authentic, has been contaminated, or such other findings in respect to the tested
evidence as the circuit court determines to be appropriate" (quoting Swafford v. State,
871 So. 2d 874 (Fla. 2004) (table report of unpublished order))); cf. Espinoza v. State,
13 So. 3d 1088, 1090 (Fla. 3d DCA 2009) (discussing Swafford and indicating that
where the defendant raises "some specific claim regarding possible contamination of
the DNA samples," the reviewing court may remand the case to the postconviction court
to determine the item's authenticity, even if the item has already been the subject of
DNA testing).
Finally, we note our disagreement with the postconviction court's
alternative findings on rehearing. The postconviction court first found that even if a
different stocking had been substituted in the place of State's Exhibit #5, it "could not
order DNA testing of an item that cannot be found." However, in reaching this
conclusion, the postconviction court erroneously assumed that if an authentic item of
evidence is replaced with a substitute, the authentic item cannot be found. Such a
conclusion does not follow from the premise. Further, the postconviction court also
erroneously assumed that even if the authentic item had been replaced with a substitute
and was later found and tested for DNA evidence, the authentic item would not be
admissible at a subsequent hearing because of the probability of tampering. But here
again, such a conclusion does not necessarily follow from the premise; one cannot
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exclude the possibility of a satisfactory explanation for the supposed switch of one item
for another.
Therefore, because the postconviction court erred in failing to determine
whether reliable proof exists to establish the authenticity of the black nylon stocking, we
reverse the postconviction court's order summarily denying Mr. Montez's second rule
3.853 motion. On remand, the trial court shall conduct such further proceedings as may
be necessary to make the requisite findings and to enter an appropriate order on the
motion.
Reversed and remanded.
SLEET and ROTHSTEIN-YOUAKIM, JJ., Concur.
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