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This proceeding involves the appeal of the circuit court's

denial of Mr. King’s Amended Motion to Release Evidence for

Additional DNA Testing. The motion was brought pursuant to Fla.

R. Crim. Proc. 3.853 and Fla. Stat. ch. 925.11 (2001).

The following symbols will be used to designate references to

the record in the instant case:

"HR.1" -- The record of the hearing held of the original

Motion to Release Evidence of Additional DNA Testing held in the

Circuit Court on January 8, 2002.

"HR.2" -- The record of the hearing held on the Amended Motion

to Release Evidence for Additional DNA testing held in the Circuit

Court on January 11, 2002.

"Att."-- The exhibits attached to this pleading, numbered as

follows:

1. Motion to Release Evidence for Additional DNA testing.

2. Order Denying CCRC-M’s Motion to Release Evidence for

Additional DNA Testing

3. Amended Motion to Release Evidence for Additional DNA

Testing.

4. State’s Response to Amended Motion to Release Evidence

for Additional DNA Testing

5. Order Denying Defendant’s Amended Motion to Release

Evidence for Additional DNA Testing.

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6. Transcript of hearing held on January 8, 2002.

This Court has set oral argument for January 15, 2002, at 9:00

a.m.

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PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . i

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . iii

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . 1

FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ISSUE I

THE LOWER COURT ERRED IN DENYING MR. KING’S AMENDED MOTION TO

RELEASE EVIDENCE FOR ADDITIONAL DNA TESTING.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

THE STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 4

CONCLUSION AND RELIEF SOUGHT . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 10

1

Mr. King filed a Motion to Release Evidence for Additional DNA

Testing on January 7, 2002 in the Circuit Court of the Sixth

Judicial Circuit in Pinellas County, Florida. (Att. 1). Argument

was heard on the motion on January 8, 2002 in front of the

Honorable Susan F. Schaeffer. (HR.1). Judge Schaeffer entered an

Order Denying CCRC-M’s Motion to Release Evidence for Additional

DNA Testing on January 8, 2002. (Att. 2). Mr. King filed an

Amended Motion to Release Evidence for Additional DNA Testing on

January 11, 2002 in the Circuit Court. (Att. 3). The State filed

the State’s Response to Amended Motion to Release Evidence for

Additional DNA Testing on January 11, 2002). (Att. 4). Argument

was heard on the amended motion on January 11, 2002 in the Circuit

Court. (HR.2). Judge Schaeffer provided defense counsel with an

Order Denying Defendant’s Amended Motion to Release Evidence for

Additional DNA Testing on January 13, 2002. (Att. 5.). A Notice of

Appeal was filed with the Clerk of the Court in Pinellas County on

January 14, 2002. (Att. 6).

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1. On October 1, 2001, Fla. Stat. 925.11 (2001), came into

effect allowing prisoners who met certain criteria to challenge

their convictions through DNA testing.

2. Mr. King petitioned the Circuit court to engage in DNA

testing on certain pieces of evidence. Certain pieces of evidence

were present within the Pinellas County Sheriff’s Office, other

pieces of evidence were not. The missing pieces of evidence are

Initial Appeal Brief of Appellant, Issue I).

3. After Mr. King petitioned the court for DNA testing, it

was discovered that the State, at the behest of the Governor’s

Office, had sent evidence in this cause to the Florida Department

of Law Enforcement (FDLE) for DNA testing months prior, and that

they had already received the results. The State had received

copies of the lab results from FDLE in August of 2001, and copies

of that report were provided to Mr. King’s counsel on December 4,

2001.

4. Certain pieces of evidence appeared in the FDLE report,

Specifically, a hair fragment found on the nightgown of the murder

victim, three hairs obtained from the pubic hair combings of the

murder victim, and fingernail scrapings taken from both the right

and left hands of the murder victim.

5. The FDLE report stated that DNA analysis was not able to

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be conducted on this evidence due either to quality or quantity of

Successive Motion for Postconviction Relief).

6. Mr. King retained an expert, Dr. Gary Litman, to review

the FDLE report.

7. On January 7, 2002, Dr. Litman informed counsel that FDLE

does not perform mitochondrial DNA analysis. The analysis which

FDLE does perform is Short Tandem Repeat Typing (STR) analysis.

STR typing is less sophisticated than mitochondrial testing. Thus,

when FDLE issues a report, such as was done in this case, stating

that no profile could be obtained due either to quantity or

condition of the sample, their analysis does not mean that there is

not enough to perform mitochondrial DNA test results. Dr. Litman

explained that FDLE has in the past sent the samples to other

laboratories to conduct the additional mitochondrial testing. That

was not done in this case. Mitochondrial DNA testing, unlike STR

testing, can be performed on hair fragments with no root attached.

Thus, results from the more sophisticated scientific procedure,

mitochondrial DNA testing, would likely produce a definitive result

not obtainable by STR testing.

8. Based upon this information, counsel for Mr. King

immediately filed a Motion to Release Evidence for Additionl DNA

Testing, requesting mitochondrial DNA testing on the hair evidence

and a retesting of the fingernail scrapings. The Circuit Court

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denied the motion, in part because of technical pleading

deficiencies. Thus, counsel filed an amended motion correcting any

technical deficiencies. That motion was denied on January 13,

2002.

Under the principles set forth by this Court in Stephens v.

State , 748 So.2d 1028 (Fla. 1999), this claim is a mixed question

of law and fact requiring de-novo review with deference only to the

factual findings by the lower court.

The Circuit Court denied Mr. King’s Amended Motion to Release

Evidence for DNA Testing on the several grounds. Pursuant to Fla.

R. Crim. Proc. 3.853(c)(5)(C), the court was required to make the

following findings:

The court shall make the following findings

when ruling on the motion:

(A) Whether it has been shown that the

physical evidence that may contain DNA exists

(B) Whether the results of DNA testing of that

physical evidence 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.

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(C) Whether thee is a reasonable probability

that the movant would have been acquitted or

would have received lesser sentence if the DNA

evidence had been admitted at trial.

Fla. R. Crim. Proc. 3.853(c)(5)(C)(2001).

The circuit court failed to make the findings required by statute.

There is no ruling as to whether the evidence exists, nor is there

a ruling that the evidence would likely be admissible at trial or

whether there exists reliable proof to establish that the evidence

containing the tested DNA is authentic. (Att. 5).

In addition, there is nothing in the court’s order which

denies that mitochondrial DNA testing is more sophisticated than

the STR testing previously employed by FDLE. Nor does the court

find that such testing would not produce a more definitive result

than the STR typing. Further, the court does not find that such

testing is unavailable. The court did, however, rule that there

does not exist a reasonable probability that the defendant would be

acquitted or would receive a life sentence. (Att. 5).

Mr. King submits that if the hairs found both on the nightgown

of the deceased and in her pubic area were tested another suspect

would be identified. If a third person were revealed, the jury

would have had reason to acquit Mr. King. Given that the location

of the hairs is such an intimate area of the deceased’s body, there

does exist a reasonable probability that the jury’s verdict would

have been different.

The evidence against Mr. King was entirely circumstantial.

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The presence of another person, even if unidentified, would have

weighed heavily upon a jury relying upon the scant evidence in the

case. The State agreed that the testing of such evidence was

warranted when they sent such evidence to be tested by FDLE months

ago. Their submission of such evidence for testing is an admission

of the importance of such testing. Only now, when an execution

date has been set, does the State change their position and deny

the value of such DNA testing. The exculpatory value of any

evidence showing another possible suspect is obvious- it supports

an actual innocence claim both in front of the jury and in front of

this court. Each person listed by the court as having been in

contact with the body could be eliminated by DNA comparison. The

presence of hairs of unknown origin would shift to the State the

burden of explaining where those hairs came from.

The court stated in its order that, "There is no statute or

rule that requires additional DNA testing," (Att. 5, pg. 3,

emphasis in original), and thus, Mr. King should not be allowed

mitochondrial DNA testing. Although there is no rule which

"requires" additional testing, Fla. R. Crim. Proc. 3.853(c)(7),

does give the court authority to have an additional test so long as

good cause is shown. The Circuit Court found that good cause had

not been shown to warrant another testing by an additional

laboratory pursuant to Fla. R. Crim. Proc. 3.853(c)(7). This

ruling was erroneous because good cause was shown due to the fact

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that FDLE does not perform the more sensitive DNA tests which would

produce a definitive result. This fact in and of itself is good

cause to allow another laboratory to perform an additional DNA

test. Because FDLE does not have the capacity to perform the

necessary test, good cause has been shown and the court should have

released the evidence to another laboratory.

Based upon the foregoing, Mr. King submits that the purpose of

Fla. Stat. ch. 925.11 (2001) has been thwarted by the lower court’s

refusal to release the evidence for mitochondrial DNA testing.

Thus, Mr. King requests the following relief:

1. That the Court vacate and set aside the lower court’s

order denying the release evidence for additional DNA testing and

allow the release of such evidence to a laboratory to perform

mitochondrial DNA testing.

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I HEREBY CERTIFY that a true copy of the foregoing Initial

Brief has been has been furnished by United States Mail, first

class postage prepaid, to all counsel of record on this _____ day

of January, 2002.

________________________________

Richard E. Kiley

Florida Bar No. 0558893

Assistant CCC

________________________________

April E. Haughey

Florida Bar No. 0119180

Assistant CCC

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE

3801 Corporex Park Drive

Suite 210

Tampa, Florida 33619

813-740-3544

Counsel for Appellant

Copies furnished to:

Carol M. Dittmar

Assistant Attorney General

Office of the Attorney General

2002 N. Lois Avenue

Tampa, FL 33607

C. Marie King

Assistant State Attorney

Office of the State Attorney

P.O. Box 5028

Clearwater, FL 33758-5028

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Commission on Capital Cases

ATTN: Mary Jean

402 S. Monroe Street

Tallahassee, FL 32399-1300

Susan Schwartz

Assistant General Counsel

Florida Department of Corrections

2601 Blair Stone Road

Tallahassee, FL 32399-2500

The Honorable Thomas D. Hall

Clerk, Supreme Court of Florida

ATTN: Tanya Carroll

Supreme Court Building

500 S. Duval Street

Tallahassee, FL 32399-1927

United States Court of Appeals for the

Eleventh Circuit

ATTN: Joyce Pope

56 Forsyth Street N.W.

Atlanta, GA 30303

United States Supreme Court

ATTN: Cynthia Rapp

Washington, D.C. 20543

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I hereby certify that a true copy of the foregoing Initial

Brief, was generated in a Courier New, 12 point font, pursuant to

________________________________

Richard E. Kiley

Florida Bar No. 0558893

Assistant CCC

________________________________

April E. Haughey

Florida Bar No. 0119180

Assistant CCC

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE

3801 Corporex Park Drive

Suite 210

Tampa, Florida 33619

813-740-3544

Counsel for Appellant