Third District Court of Appeal
State of Florida
Opinion filed June 7, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-296
Lower Tribunal No. 04-14122
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Roberto G. Ordonez-Medina,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Nushin Sayfie, Judge.
Robert G. Ordonez-Medina, in proper person.
Pamela Jo Bondi, Attorney General, for appellee.
Before SALTER, FERNANDEZ and LUCK, JJ.
LUCK, J.
Roberto Ordonez-Medina appeals from the trial court’s order denying his
motion for postconviction DNA testing, pursuant to Florida Rule of Criminal
Procedure 3.853. The trial court found Ordonez-Medina had not met his burden to
show a reasonable probability that he would have been acquitted if the DNA
evidence from the firearm had been admitted at trial. See Lambrix v. State, No.
SC16-56, 2017 WL 931105, at *6 (Fla. Mar. 9, 2017) (“[I]t is the defendant’s
burden to explain, with reference to specific facts about the crime and the items
requested to be tested, how the DNA testing will exonerate the defendant of the
crime or will mitigate the defendant's sentence. [A] trial court does not err in
denying a motion for DNA testing where the defendant cannot show that there is a
reasonable probability that the absence or presence of DNA at a crime scene would
exonerate him or lessen his sentence.” (quotations omitted, second alteration in
original)). For three reasons, we agree with the trial court’s finding and affirm.
First, Ordonez-Medina confessed to shooting his ex-girlfriend. Ordonez-
Medina gave a recorded confession that he grabbed the firearm, pointed it at the
victims’ vehicle, and fired into the vehicle, striking his ex-girlfriend on the left side
of her hip. Earlier, Ordonez-Medina confessed to a different law enforcement
officer that he shot the victim. And even earlier, shortly after the attempted
murder, Ordonez-Medina spontaneously stated to a third law enforcement officer
that he shot the victim.
Second, a law enforcement officer eyewitness saw Ordonez-Medina with a
firearm in his hand immediately after the shooting. This eyewitness officer heard
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the argument between Ordonez-Medina and his ex-girlfriend, heard the shooting,
saw Ordonez-Medina follow the victims in the car, and followed Ordonez-Medina
as he had the firearm in his hand. The officer, after he stopped Ordonez-Medina
car, took possession of the firearm from the front passenger seat.
Third, Ordonez-Medina faulted his trial counsel for not pursuing an
accident/diminished capacity defense. In Ordonez-Medina’s 2012 post-conviction
motion, he alleged that his trial counsel was ineffective for failing to offer evidence
that the shooting was an accident or the result of diminished capacity because of a
mental illness.
The Florida Supreme Court, in a series of DNA testing cases, has concluded
that with confessions, eyewitness testimony, and an accident defense, the
defendant cannot show a reasonable probability of an acquittal. The identity of the
defendant in these kinds of cases, the Court has explained, is not in doubt. See
Hitchcock v. State, 991 So. 2d 337, 348 (Fla. 2008) (“We agree with the circuit
court’s finding that Hitchcock has not demonstrated how DNA testing would result
in newly discovered evidence likely to produce an acquittal on retrial. DNA
analysis of the pubic hairs found on the victim would not exonerate Hitchcock
because he admitted having sexual intercourse with her.”); Sireci v. State, 908 So.
2d 321, 325 (Fla. 2005) (“[W]e conclude that, in light of the other evidence of
guilt, there is no reasonable probability that Sireci would have been acquitted or
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received a lesser sentence if the State had not introduced into evidence the hair on
Poteet’s sock. As we have noted, seven witnesses testified that Sireci admitted to
them that he killed Poteet. We find no error in this regard.”); Robinson v. State,
865 So. 2d 1259, 1265 (Fla. 2004) (“Robinson failed to state in the motion how
DNA testing of all the items listed would exonerate him of or even mitigate his
sentences for robbery, sexual battery, and first-degree murder. Notably, Robinson
stipulated that he shot the victim twice in the head, but claimed that the first shot
was accidental and took place after the two engaged in consensual sex. Thus, his
identity and physical contact with the decedent are not at issue. (citation omitted));
see also Hartline v. State, 806 So. 2d 595, 595-96 (Fla. 5th DCA 2002) (“[W]e
agree with the court below that there is no reasonable probability of acquittal if the
DNA evidence was reexamined. Hartline’s identity was not in question and based
on the sexual activity with the child victim which he admitted performing, the
victim’s testimony, and acts an eyewitness described, even exculpatory DNA
results would not have been given any weight by the jury.”).
Here, we have the same kind of evidence. Ordonez-Medina confessed; an
eyewitness saw him with a gun immediately after the shooting; and his preferred
defense was that the shooting was an accident (not that he didn’t do it). With all
this, Ordonez-Medina has not shown a reasonable probability that he would have
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been acquitted if DNA from the firearm had been admitted at trial. We, therefore,
affirm.
Affirmed.
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