IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
NATHANIEL POOLE, JR.,
Appellant,
v. Case No. 5D17-1442
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed September 7, 2017
3.853 Appeal from the Circuit
Court for Volusia County,
Leah R. Case, Judge.
Melissa Montle and Seth E. Miller, of
Innocence Project of Florida, Inc.,
Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Bonnie Jean Parrish,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
Nathaniel Poole, Jr., appeals the summary denial of his motion for DNA testing
filed pursuant to Florida Rule of Criminal Procedure 3.853. The postconviction court’s
one-page unelaborated denial order was entered without ordering the State to respond
to the motion and without any court records attached to the order. Due to these
deficiencies, we reverse and remand.
In 1981, following a jury trial, Poole was convicted of kidnapping, sexual battery,
robbery, and aggravated assault. According to the victim’s testimony, Poole was one of
the three perpetrators of these crimes against her. Poole denied committing the crimes
or even being present when the crimes were committed. The objective trial evidence that
the State used to link Poole to the crimes was that blood type “O” was discovered at the
crime scene and that Poole has type “O” blood. No other scientific tests were performed
on other evidence prior to trial, which consisted of pubic hairs, blood, semen, and oral
swabs. Poole’s convictions were affirmed on direct appeal. Poole v. State, 413 So. 2d
898 (Fla. 5th DCA 1982).
Florida Rule of Criminal Procedure 3.853(d) provides that a “motion for
postconviction DNA testing may be filed or considered at any time following the date that
the judgment and the sentence in the case becomes final.” Prior to Poole’s present
motion, in 2012, Poole, by counsel, moved for DNA testing. Following an evidentiary
hearing, the postconviction court granted Poole’s motion in part. The court found that
Poole met his burden of proof that there exists a reasonable probability that he would
have been acquitted if the DNA evidence had been admitted at trial. The court ordered
the Florida Department of Law Enforcement (“FDLE”) to perform the DNA testing,
declining Poole’s request for the DNA testing to be conducted by an accredited laboratory
other than the FDLE because Poole had not established the requisite “good cause” under
rule 3.853(c)(7).1 We affirmed the State’s appeal of this order without opinion. State v.
Poole, 162 So. 3d 1039 (Fla. 5th DCA 2015).
1 Rule 3.853(c)(7) states:
(7) The court-ordered DNA testing shall be ordered to be
conducted by the Department of Law Enforcement or its
2
The FDLE performed the DNA testing on various items of evidence and issued a
report that was favorable to Poole but did not completely exonerate him. Poole, through
counsel, then sought the unredacted FDLE case file for review by his own DNA expert to
determine whether additional, more sensitive DNA testing on these same items of
evidence that had not been performed by the FDLE could exonerate him. Poole
eventually moved to compel the production of this information, which the court granted.
Poole has now filed the instant motion for additional testing, attaching an affidavit
from Dr. Julie Heinig, the laboratory director in the forensics department of the DNA
Diagnostic Center located in Fairfield, Ohio, in support of his motion. Dr. Heinig opined
that she agreed with the results and conclusions in the FDLE report but that more
advanced and sensitive DNA testing, which was not performed by the FDLE, would be
particularly useful in this case and may achieve more robust and complete DNA profiles,
especially on the more degraded samples tested. Dr. Heinig further opined that there
was no scientific reason not to perform this additional testing and that her lab is accredited
and has both the capability and the extensive experience to perform this more
particularized DNA testing in these types of cases. Finally, Poole alleged that he would
bear the cost of this additional testing at this independent laboratory.
Rule 3.853(c) sets forth the procedure that the court must follow where, as here,
the motion for postconviction DNA testing is facially sufficient. First, the court must order
the prosecuting authority to respond to the motion within thirty days or such other time as
designee, as provided by statute. However, the court, upon a
showing of good cause, may order testing by another
laboratory or agency certified by the American Society of
Crime Laboratory Directors/Laboratory Accreditation Board
(ASCLD/LAB) or Forensic Quality Services, Inc. (FQS) if
requested by a movant who can bear the cost of such testing.
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determined by the court. Fla. R. Crim. P. 3.853(c)(2). Thereafter, upon receipt of this
response, the court shall review the response and then either enter an order on the merits
or set the motion for hearing. Id. at 3.853(c)(3).
The postconviction court erred when it denied Poole’s motion without holding an
evidentiary hearing or attaching to the order portions of the record conclusively refuting
Poole’s motion. See Girley v. State, 935 So. 2d 55, 56 (Fla. 1st DCA 2006); Reddick v.
State, 929 So. 2d 34, 36–37 (Fla. 4th DCA 2006); Schofield v. State, 861 So. 2d 1244,
1246 (Fla. 2d DCA 2003). The court also erred by ruling on the motion without requiring
a response from the State. See Girley, 935 So. 2d at 56.
Accordingly, we reverse the order on appeal and remand to the postconviction
court with directions that the court order the State to file a response to the motion, and
thereafter, upon receipt and review of the response, to either set the motion for hearing
or enter an order on the merits. Moreover, because the postconviction court previously
held that Poole met his evidentiary burden to demonstrate that there is a reasonable
probability that Poole would have been acquitted if DNA evidence had been admitted at
trial, the State’s response should, at a minimum, address whether it has any objections
to the additional, more sensitive DNA testing techniques described in Dr. Heinig’s affidavit
to be performed at Poole’s expense at an accredited outside laboratory, and if so, the
specific grounds for the objection.
REVERSED and REMANDED, with directions.
COHEN, C.J., LAMBERT and EISNAUGLE, JJ., concur.
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