               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                          IN THE DISTRICT COURT OF APPEAL
                                          OF FLORIDA
                                          SECOND DISTRICT



WILLIAM JOHN MONTEZ,             )
DOC #166014,                     )
                                 )
           Appellant,            )
                                 )
v.                               )                Case No. 2D16-4525
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed October 4, 2017.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Hillsborough County; Kimberly K.
Fernandez, Judge.

William John Montez, pro se.



WALLACE, Judge.

              William Montez appeals from the postconviction court's summary denial of

his second motion for postconviction DNA testing, which was filed under Florida Rule of

Criminal Procedure 3.853. Because the postconviction court failed to make a required

finding that there was reliable proof to establish the authenticity of the alleged murder

weapon that was submitted for DNA testing, we reverse and remand for an evidentiary

hearing to determine the item's authenticity.
                       The Factual and Procedural Background

              Because we have previously discussed at length the facts of this case, we

will not recite them in detail here. See Montez v. State, 86 So. 3d 1243 (Fla. 2d DCA

2012). However, for purposes of this opinion, it suffices to say that in April 2000, Mr.

Montez was found guilty of first-degree murder and sentenced to life in prison. Over ten

years later, Mr. Montez filed his initial motion for postconviction DNA testing under rule

3.853. Mr. Montez requested DNA testing of the murder weapon, a black nylon

stocking, which was found tied in a knot around the victim's neck. This black nylon

stocking was admitted into evidence as State's Exhibit #5 at trial.1 The postconviction

court denied the motion, finding that Mr. Montez failed to demonstrate a reasonable

probability that the requested DNA testing would lead to his acquittal. On appeal, this

court reversed the postconviction court's summary denial of Mr. Montez's motion and

remanded for an evidentiary hearing. See Montez, 86 So. 3d at 1245.

              Upon remand, the postconviction court entered an order granting Mr.

Montez's motion in November 2012. In addition to finding that the alleged murder

weapon still existed and that there was a reasonable probability that the defendant

could be acquitted based upon the results of DNA testing of the alleged murder

weapon, the postconviction court found, in pertinent part, as follows:

              The Court hereby finds that DNA testing of the evidence
              (State's Exhibit #5), the alleged murder weapon, likely would
              be admissible at trial based upon the establishment of the
              chain of custody maintained by law enforcement and the
              Clerk of the Court, as the evidence custodian. There exists
              reasonable proof to establish that any such DNA testing,
              performed by the Florida Department of Law Enforcement


              1
             The nylon stocking appears to have been originally inventoried as Item
#12 by the Tampa Police Department.


                                           -2-
              (FDLE) would be authentic and admissible at future
              proceedings.

After granting the motion, the postconviction court entered another order releasing the

alleged murder weapon to the care, custody, and control of the Tampa Police

Department (TPD) for transport to FDLE. However, when the alleged murder weapon

was handed over to TPD for transport, the item was apparently found in an open,

unsealed paper bag.2 As a result, the unsealed paper bag containing the item was

placed in a manila envelope, which was sealed and given to FDLE for testing.

              After FDLE completed its examination of the alleged murder weapon, the

postconviction court held an evidentiary hearing regarding the written results of the DNA

testing. Over Mr. Montez's objections that there were chain of custody and

contamination problems, a FDLE technician testified that she found the DNA of both Mr.

Montez and the victim on the alleged murder weapon. After the hearing concluded, the

postconviction court entered a "notice of compliance" with this court's mandate.

Consequently, Mr. Montez filed a petition for writ of mandamus in this court to compel

the circuit court to issue a final order on the postconviction DNA proceedings. We

dismissed the petition for Mr. Montez "to file a separate motion for postconviction DNA

testing under Florida Rule of Criminal Procedure 3.853." Montez v. State, 192 So. 3d

53 (Fla. 2d DCA 2015) (unpublished disposition).

              Upon this court's dismissal of his petition, Mr. Montez filed a second

motion for postconviction DNA testing. In his motion, Mr. Montez requested the



              2
               At a status hearing, the assistant state attorney informed the court that
the alleged murder weapon "had been opened" and "exposed to the elements." At a
later evidentiary hearing regarding the DNA test results, an FDLE technician testified
that when she received the item for testing, it was found in an "unsealed" paper bag.


                                           -3-
postconviction court to conduct a DNA test of the actual murder weapon. Although he

acknowledged that a black stocking had been the subject of prior DNA testing, Mr.

Montez asserted that the postconviction court failed to make the requisite finding that

the item containing the tested DNA was authentic. In particular, Mr. Montez alleged that

FDLE tested the wrong nylon stocking because it was most likely mishandled or

replaced with an identical stocking.3 He further alleged that even if the actual murder

weapon was tested, the item was contaminated due to its mishandling and the fact that

it was found in an open, unsealed bag.

              After finding that Mr. Montez's motion for postconviction DNA testing was

facially sufficient and then ordering the State to respond to it, the postconviction court

summarily denied the motion. It reasoned that because the alleged murder weapon had

"already been tested for DNA" and the test results matched the DNA profiles of both Mr.

Montez and the victim, no further testing was required. It further found that FDLE did

not test the wrong item because, at trial, a crime scene technician identified State's

Exhibit #5 as the stocking that was tied around the victim's neck. Accordingly, the

postconviction court concluded that because State's Exhibit #5 was released for DNA

testing in 2012, the correct item was tested.

              Mr. Montez filed a motion for rehearing. In his motion, he argued that the

postconviction court not only relied improperly upon the inconclusive testimony of



              3
               In support of his allegation that the murder weapon could have been
mishandled or replaced with an identical stocking, Mr. Montez highlighted the TPD
Property Record Form, which was dated June 23, 1999. This form apparently indicates
that item #12 was placed into the same package with an identical black stocking. Mr.
Montez also appeared to argue that the tested nylon stocking was not the actual murder
weapon because the tested nylon stocking contained a knot and had hairs in it, whereas
State's Exhibit #5 allegedly did not have such features.


                                            -4-
certain witnesses but also failed to address the "serious chain of custody and laboratory

procedural errors." The postconviction court denied the motion, finding that even if a

different stocking had been substituted in the place of State's Exhibit #5, it "could not

order DNA testing of an item that cannot be found." The postconviction court further

reasoned that even if the original item had been replaced and then later found and

tested for DNA evidence, it would not be admissible in evidence at a future hearing

because the circumstances were indicative of probable tampering. This appeal

followed. Mr. Montez makes the same arguments on appeal.

                                        Discussion

              When a postconviction court enters an order on a motion for

postconviction DNA testing under rule 3.853, the court "must make the findings outlined

in rule 3.853(c)(5)." Montez, 86 So. 3d at 1244. Specifically, the postconviction court

must find:

              (A) Whether it has been shown that physical evidence that
              may contain DNA still exists.

              (B) Whether the results of DNA testing of that physical
              evidence likely 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.

              (C) Whether there is a reasonable probability that the
              movant would have been acquitted or would have received a
              lesser sentence if the DNA evidence had been admitted at
              trial.

Fla. R. Crim. P. 3.853(c)(5) (emphasis added); see also Montez, 86 So. 3d at 1244.

              Here, as the rule clearly provides, the postconviction court was required to

make the above three findings when it ruled on Mr. Montez's first rule 3.853 motion.




                                            -5-
Although the postconviction court made the first and third findings, it failed to make the

second finding. More specifically, the postconviction court failed to determine whether

reliable proof existed to establish the authenticity of the black nylon stocking that was

submitted for DNA testing, i.e., it was the alleged murder weapon. Instead, the

postconviction court found that "there existed reasonable proof to establish that any

such DNA testing, performed by [FDLE] would be authentic and admissible at future

proceedings." To be sure, while rule 3.853 requires the postconviction court to find that

any DNA testing of the evidence would be admissible, it also requires the postconviction

court to find that reliable proof exists to establish that the item containing the tested

DNA is authentic. Here, no such proof was introduced into evidence at the hearing.

Indeed, the postconviction court's reliance upon the trial testimony of the crime scene

technician was not sufficient to establish reliable proof of the item's authenticity because

the testimony did not account for the twelve-year gap between the time of trial and the

time that the item was tested. Nor did the testimony account for the discovery of the

item in an allegedly open, unsealed paper bag before it was sent to FDLE for testing.

Accordingly, because the postconviction court failed to determine whether the tested

stocking was authentic, the postconviction court erred in relying upon the DNA results of

an unauthenticated item to deny Mr. Montez's second motion.

              We express no opinion on whether the nylon stocking that was submitted

for testing was or was not the actual murder weapon. We also express no opinion on

whether the State will be required to submit this item for further testing or a different

item for initial testing. Instead, we hold only that based on the limited record before us,

an evidentiary hearing is necessary—as this court discussed in our 2012 opinion—to




                                             -6-
determine whether the tested nylon stocking was not contaminated and is what the

State claims it is, i.e., the murder weapon that was tied around the victim's neck. See

Swafford v. State, 946 So. 2d 1060, 1061 (Fla. 2006) (requiring the postconviction court

to "enter an order making findings as to whether the evidence which was tested is

authentic, has been contaminated, or such other findings in respect to the tested

evidence as the circuit court determines to be appropriate" (quoting Swafford v. State,

871 So. 2d 874 (Fla. 2004) (table report of unpublished order))); cf. Espinoza v. State,

13 So. 3d 1088, 1090 (Fla. 3d DCA 2009) (discussing Swafford and indicating that

where the defendant raises "some specific claim regarding possible contamination of

the DNA samples," the reviewing court may remand the case to the postconviction court

to determine the item's authenticity, even if the item has already been the subject of

DNA testing).

                Finally, we note our disagreement with the postconviction court's

alternative findings on rehearing. The postconviction court first found that even if a

different stocking had been substituted in the place of State's Exhibit #5, it "could not

order DNA testing of an item that cannot be found." However, in reaching this

conclusion, the postconviction court erroneously assumed that if an authentic item of

evidence is replaced with a substitute, the authentic item cannot be found. Such a

conclusion does not follow from the premise. Further, the postconviction court also

erroneously assumed that even if the authentic item had been replaced with a substitute

and was later found and tested for DNA evidence, the authentic item would not be

admissible at a subsequent hearing because of the probability of tampering. But here

again, such a conclusion does not necessarily follow from the premise; one cannot




                                            -7-
exclude the possibility of a satisfactory explanation for the supposed switch of one item

for another.

               Therefore, because the postconviction court erred in failing to determine

whether reliable proof exists to establish the authenticity of the black nylon stocking, we

reverse the postconviction court's order summarily denying Mr. Montez's second rule

3.853 motion. On remand, the trial court shall conduct such further proceedings as may

be necessary to make the requisite findings and to enter an appropriate order on the

motion.

               Reversed and remanded.


SLEET and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                           -8-
