Galloway v. State

• Decision Date: 19 December 2001
• Docket Number: No. 1D01-959.,1D01-959.
• Citation: 802 So.2d 1173
• Parties: Donald GALLOWAY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

802 So.2d 1173

Donald GALLOWAY, Appellant, v.STATE of Florida, Appellee.

No. 1D01-959.

District Court of Appeal of Florida, First District.

December 19, 2001.

Appellant, pro se.

Robert A. Butterworth, Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for appellee.

WOLF, J.

Appellant, who was convicted in 1979 along with two co-defendants of two counts of robbery and one count of sexual battery, challenges an order denying his motion for postconviction deoxyribonucleic acid (DNA) testing.During the pendency of this appeal, the Florida Supreme Court adopted rule 3.853 of the Florida Rules of Criminal Procedure, which provides the procedure for obtaining postconviction DNA testing under new legislation authorizing such testing in criminal cases.SeeAmendment to Florida Rules of Criminal Procedure Creating Rule 3.853 (DNA Testing), Amendment to Florida Rules of Appellate Procedure 9.140 & 9.141,26 Fla. L. Weekly S687, ___ So.2d ___, 2001 WL 1276878(Fla.Oct. 18, 2001).We have considered appellant's motion in light of the requirements of the new rule.SeeLockheed Space Operations v. Pham,600 So.2d 1261, 1264(Fla. 1st DCA1992)(Ervin, J., concurring)(quotingTurner v. United States,410 F.2d 837, 842(5th Cir.1969) for the proposition that "changes in... law relating only to procedure or remedy are usually held immediately applicable to pending cases, including those on appeal from a lower court");see alsoRothermel v. Florida Parole & Probation Comm'n,441 So.2d 663, 665(Fla. 1st DCA1983)(same).Nevertheless, we affirm as the allegations contained in appellant's motion are legally insufficient to support granting postconviction DNA testing in his case.

Rule 3.853 of the Florida Rules of Criminal Procedure requires motions for postconviction DNA testing to be under oath and include

(1) a statement of the facts relied on in support of the motion, including a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained;

(2) a statement that the evidence was not tested previously for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result;

(3) a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime;

(4) a statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received; [and]

(5) a statement of any other facts relevant to the motion....

Amendment,26 Fla. L. Weekly at S688, ___ So.2d ___.Appellant's motion was under oath and included a description of the physical evidence to be tested, its last known location, and how the evidence had been originally obtained; a statement that the evidence had not previously been tested for DNA; a statement that identification of appellant was a genuinely disputed issue at trial; and a statement that appellan...