IN THE FLORIDA SUPREME COURT

COMES NOW THE DEFENDANT, BRETT A. BOGLE, by and through

undersigned counsel, and hereby files the following reply and response to the State’s motion.

The State suggests that Mr. Bogle has missed the deadline for filing a petition on his interlocutory appeal based on Trepal v. State, 754 So. 2d 702 (Fla. 2000) This is incorrect. Several facts that were omitted from the State’s procedural history explain why this is not so.

On June 13, 2001, Judge Fuente ordered that DNA testing could be conducted in Mr. Bogle’s case and that the State could extract Mr. Bogle’s blood in order to conduct that testing. This was ordered pursuant to oral requests by the State first made on May 24, 2001. At the May 24th hearing, the issue had been deferred to a later date for argument.

On June 6, 2001, defense counsel argued that the State should be required to make a showing of good cause for its discovery request. As the State concedes, in its Response in Opposition to Defendant’s Motion to Stay Proceedings and State’s Motion to Dismiss Appeal, "[a] court order is [] needed to obtain samples of the defendant’s blood and to release any evidence in the property of the Clerk of Court to be tested." However, the State says that "[t]here is no support for [Mr. Bogle’s] claim" that the State was "required to show cause for retesting." Response in Opposition to Defendant’s Motion to Stay Proceedings and State’s Motion to Dismiss Appeal, at 4.

On June 13, 2001, Judge Fuente issued his order stating that the State did not have to show good cause. As the State has explained: "Bogle also argues that by requesting retesting the State is conceding error and should be required to show cause for retesting. There is no support for this claim and the trial court’s denial of this argument was clearly within its discretion." Response, at 4.

Counsel filed a notice of appeal and a motion to stay the blood draw in order to permit appellate review on June 21, 2001. However, the trial court did not rule on the stay motion, which included the issue of the deadline for the blood draw, until it could hear argument of counsel. That argument could not be scheduled due to Judge Fuente’s busy court docket until July 13, 2001. And the State agreed to not proceed with the blood draw. On July 18^th after the July 13^th hearing, Judge Fuente set a new deadline of August 2, 2001, for the blood draw. On July 27, 2001, Judge Fuente issued a replacement order, nunc pro tunc to July 16, 2001, setting the deadline for the blood draw as August 2, 2001. The State scheduled the blood draw for July 31, 2001.

The State argues the thirty days to file a petition challenging the discovery order expired on July 13, 2001. Under the State’s interpretation of Trepal, the time for filing the petition in this Court would have run before all of the issues had been resolved. The time should run from the date of the Court’s final order of July 18, 2001, setting the deadline for the blood draw for August 2nd. Under defense counsel’s interpretation of Trepal, the time period for filing the petition to this Court would run thirty (30) days from the last of the trial court’s orders, which was July 18, 2001. Since the July 18^th order relies on determinations made in the June 13^th order, Mr. Bogle is appealing both orders. On July 27, 2001, Mr. Bogle received a "replacement order" filed by Judge Fuente on July 24, 2001, nunc pro tunc to July 16, 2001. Evidently, this order was to replace the Court’s order of July 18^th. Therefore, the thirty-day time period would run either from July 16 or 18^th depending on which order is followed. Under either scenario, Mr. Bogle has not waived his right to appeal all of the orders on this issue. If counsel erred, it was in prematurely filing a notice of appeal because she was uncertain how this Court could entertain a motion for stay if notice of appeal had not been filed. More importantly, Mr. Bogle’s interlocutory appeal should not be dismissed because of confusion over the procedures in his case. The bottom line is that the accompanying petition was filed within thirty days of the order that the State was relying upon to schedule the blood draw for July 31^st. And the State has acknowledged that "[a] court order is needed [] to obtain samples of the defendant’s blood and to release any evidence in the property of the Clerk of the Court to be tested." Response, at 5.

The accompanying petition is timely filed, as it is filed within thirty days of order upon which the State was relying when it scheduled the blood draw for July 31, 2001.

Even if the Court finds that Mr. Bogle did not follow the proper procedure, a review of the lower court's orders are necessary because any appeal from the final action in this case may not provide an adequate remedy for the alleged impropriety. The State's arguments elevate form over substance given that the State is not arguing that Mr. Bogle cannot appeal. Even assuming arguendo that Mr. Bogle did not follow the procedures set out in Trepal, this Court has made it clear its "constitutional responsibility [is] to refrain from dismissing a cause solely because an improper remedy has been sought." Spaziano v. State, 660 So. 2d 1363, 1365 (Fla. 1995). To dismiss Mr. Bogle’s appeal would be to elevate form over substance.

The State also argued that even if Mr. Bogle’s appeal is properly before the Court, it is without merit because "at no time has the State said it was ‘reopening the criminal investigation of Mr. Bogle’s case.’" See, State’s Response at page 4. The State contends that because of the allegations in Mr. Bogle’s post-conviction motion, the State "felt it was prudent to retest certain evidence in preparation for any subsequent evidentiary hearing." See, State’s Response at page 4.

The State has failed to explain what evidence it intends to test, saying it was going to test "everything." In its Response, the State contends that items of evidence were "never" tested for DNA. See, State’s Response at page 2. This is a surprising development since Special Agent Deadman testified at trial that there was an insufficient sample to test anything else. The State failed to list what items were "never" tested. Instead, the State now wants carte blanche to retest the items of evidence that it says were improperly tested. This surely is re-opening the criminal investigation. The State believes it is entitled to re-test the evidence because Mr. Bogle claimed in his 3.850 motion that he is innocent and that the DNA testing done in 1990-91 was flawed. However, the claims that Mr. Bogle now makes are no different from the issues at trial. In 1991, Mr. Bogle claimed he was innocent and that the DNA testing was flawed. The State had its opportunity to prosecute, and it conducted DNA testing, which it argued was reliable and that Mr. Bogle was guilty. In fact, Assistant State Attorney Karen Cox argued to the jury in closing that:

There was a well-connected chain of events that leads to one conclusion and one conclusion alone, but the Hillsborough County Sheriff’s Office continued their investigation and enlisted the help of the greatest crime laboratory in the world, the FBI Crime Laboratory...

®. 556-557). Obviously, the State was very confident in its results in 1991. Now, the State contends that it is entitled to re-test its "reliable" evidence without stating what, if anything, was wrong with the previous testing because:

DNA testing at this point in the proceedings is the most expeditious way of fairly addressing defendant’s arguments...

See, State’s Response at page 5. The State never attempts to explain why the DNA testing that it is proposing will result in evidence that is not barred by Zeigler v. State, 654 So.2d 1162 (Fla. 1995). The State’s own description of the testing is a "retesting." Response, at 3. There is no explanation for why reliable DNA testing could not have been done by the State years ago.

Post-conviction proceedings are brought by the defendant who has the burden of proof to establish that the trial was constitutionally unreliable. The State must rely on the same records and evidence it produced at trial. This is similar to the claim in Johnson v. Mississippi, 108 S. Ct. 1981 (1988), where the State had introduced a judgment and sentence that was later declared null and void. The State of Mississippi was not permitted to defend the sentence of death obtained on the back of the invalid judgment and sentence, by arguing evidence that Mr. Johnson had really engaged in the behavior represented by the invalid judgment and sentence. Since the evidence (the judgment and sentence) that the jury heard had been established to be unreliable, the only question was whether on the basis of the trial record was the error harmless beyond a reasonable doubt. When an unconstitutional felony has been considered in sentencing, this Court is restricted in its analysis to the facts and issues adduced at trial. It cannot consider whether the defendant really may have committed the crime at issue in the vacated judgment and sentence. The reviewing court is bound by the record in assessing the prejudicial impact of the presentation of evidence subsequently established as unreliable. Cf. Duest v. Singletary, 997 F. 2d 1336 (11^th Cir. 1993)(The 11^th circuit twice rejects the State’s argument that Duest would have been sentenced to death regardless of the consideration of the unconstitutional aggravating factor and holds that it cannot be harmless); Rivera v. State, 629 So. 2d 105 (Fla. 1993); Preston v. State, 564 So. 2d 120 (Fla. 1990). Reliance on the trial record to determine the harm from the discovery that the jury heard unreliable evidence is not a new concept.

Although the State has conceded an evidentiary hearing on these claims, it has still not set out a factual or legal basis for DNA testing, nor has it named the items of evidence it intends to test that were "never" tested. The State asserts that not only was there no previous obligation to show good cause before it seeks post-conviction discovery, but that the newly enacted Fla. Stat. § 925.11 does not apply to the State. Thus, the proper interpretation of this new DNA statute that is at issue.

Finally, the State has erroneously argued that Mr. Bogle would not be harmed by the State re-testing the forensic evidence.

The only possible harm that the defendant has asserted is that the evidence may be used up during testing. Since FDLE is the laboratory specified in the statute to do such testing, this concern is of no moment.

See, State’s Response at page 5. Of course, such an event would violate Section 925.11(4), Fla. Stat., which imposes upon law enforcement agencies a duty to preserve any DNA testable evidence.

Moreover, the fact that FDLE is to conduct the DNA re-testing is of great importance to Mr. Bogle because the FBI crime lab, which trained the FDLE technicians, admits it bungled the testing in 1991. That is why the State finds it necessary to re-test the evidence in the first place. Justifiably, Mr. Bogle has no confidence that the FDLE, a branch of the prosecution, will be any more thorough or careful than the "greatest crime lab in the world." In fact, the police officer who is to transport the sample drawn from Mr. Bogle is the same officer who prosecuted this case in 1991. Contrary to the State’s argument, the reliability of this testing is of great "moment."

Under Fla. Stat. 925.11, Mr. Bogle is entitled to request DNA testing if he can prove the requirements under the statute. The DNA statute does not give the State carte blanche testing and two chances to prosecute the case. An interlocutory appeal should be entertained in this case as is explained in the accompanying petition.

WHEREFORE, for the foregoing reasons, Mr. Bogle respectfully requests that this Court allow an interlocutory appeal of the lower court’s orders permitting a blood draw in order to conduct DNA testing and grant a stay of his post-conviction proceedings and any DNA testing pending a decision by this Court .

I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by United States Mail, first class postage prepaid to all counsel of record on August__, 2001.

__________________

TERRI L. BACKHUS

Florida Bar No. 0946427

Backhus & Izakowitz, PA.

303 S. Westland Avenue

Tampa, FL 33606

(813) 259-4424

Attorney for Mr. Bogle

cc:

Ms. Sharon Vollrath

Office of the State Attorney

Courthouse Annex, 4th Floor

800 E. Kennedy

Tampa, FL 33602

The Honorable William Fuente

Courthouse Annex

800 E. Kennedy

Tampa, FL 33602

Ms. Kim Hopkins

Asst. Attorney General

2002 N. Lois Ave., Ste. 700

Tampa, FL 33607