dissenting.
First, I agree with the majority that establishing whether DNA testing was “not reasonably available to the movant” pursuant to section 517.035.2(3)(a) is not solely a question of whether the technology to perform a test existed anywhere. However, it is confusing to label subsection (a) a subjective test. I disagree with the majority to the extent it is saying the test is “subjective” insofar as that would require a determination of the movant’s state of mind or awareness. Instead, I believe the statute instructs the hearing court to review the objective facts surrounding each individual case to determine whether the technology, if it then existed, was reasonably available to that particular individual.
Second, this case should be remanded to the motion court for a hearing. In a post-conviction DNA-testing proceeding, the motion court may make findings of fact and conclusions of law with or without a hearing. See section 54.7.035.8 RSMo Supp.2001. Here, the motion court did not conduct a hearing, because it believed that the statute did not apply to those who pled guilty. As this was error, this Court should reverse and remand.
However, the majority opinion goes beyond this, ordering outright the DNA testing based only on allegations and attached papers. The General Assembly intended that a motion court decide whether to have an evidentiary hearing, in order that credibility may be explored — and the movant prove his allegations by a preponderance of the evidence. Section 547.035.6. Certain issues — 1) the determination of rea*51sonable availability of DNA testing in the early 1990s, 2) the reasonable probability that Weeks would not have been convicted if the DNA results were exculpatory, and 3) whether Weeks can overcome the factual admissions made in his guilty plea— should be decided first by a motion court.