        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                            RUFUS MITCHELL,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D15-1412

                            [November 12, 2015]

   Appeal of order denying rule 3.853 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; David F. Crow and
John S. Kastrenakes, Judges; L.T. Case No. 501987CF002233BXXXMB.

   Rufus Mitchell, Crawfordville, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Rufus Mitchell appeals an order summarily denying his motion for
postconviction DNA testing, filed pursuant to rule 3.853, Florida Rules of
Criminal Procedure. We reverse and remand because the record does not
conclusively refute his claim.

   After a jury trial, Mitchell was found guilty of (I) of sexual battery with
threat to use force; (II) robbery; and (III) petit theft. This Court affirmed.
Mitchell v. State, 595 So. 2d 56 (Fla. 1992) (table).

   In his rule 3.853 motion, Mitchell alleged the conviction stemmed from
an incident on the beach after dark. The victim first noticed five
individuals having a heated argument. Two men left after the argument,
but the other three proceeded to commit sexual battery on her and to rob
her and her male companion of personal items. Mitchell’s name was
disclosed as one of the five men, but, he alleged, he was never positively
identified as one of the three who attacked the victim. DNA testing was
conducted before his 1991 trial, but the results were inconclusive.
Mitchell always maintained his innocence, identity has always been an
issue, and no one conclusively identified him as one of the victim’s three
attackers.1 He listed several items of physical evidence he sought to have
tested, including a rape kit that was positive for the presence of semen.
He contended the items would demonstrate the presence of DNA not
attributable to him, establishing he did not commit the offenses.

   In responding to the motion, the State argued that even if Mitchell’s
DNA was not found, that would not exonerate him. Because there were
several attackers, it would not be unexpected to find DNA from other
individuals. The closest case it cited was Galloway v. State, 802 So. 2d
1173 (Fla. 1st DCA 2001). In denying a similar motion, the Galloway court
explained,

      Appellant merely alleged in his motion that his DNA would not
      match DNA evidence found at the scene of the crimes and on
      the body of the victim of the sexual battery. Even if DNA
      testing of this evidence produced such a result, it would not
      exonerate appellant. Such evidence would not demonstrate
      that appellant was not present at the scene of the crime and
      participating with his co-defendants in the commission of the
      crimes when they occurred. The fact that only appellant’s
      co-defendants may have deposited DNA at the crime scene
      or on the body of the victim does not mean that appellant
      was not there. See People v. Pugh, 732 N.Y.S.2d 673, 2001
      WL 1426324, at *1 (N.Y. App. Div. Nov. 15, 2001) (upholding
      denial of postconviction DNA testing in single assailant rape
      case on grounds that “the absence of defendant’s semen on
      the tested material . . . would not have exonerated or tended
      to exonerate defendant”).

Id. at 1175 (emphasis added).

   However, the Third District distinguished Galloway in Hampton v.
State, 924 So. 2d 34 (Fla. 3d DCA 2006) (reversing denial of motion for
DNA testing). In Hampton, the victim had said all three male assailants
had forcible intercourse with her. The Third District reasoned that if the

1 The State’s response to this Court represents the victim did identify Mitchell,
but points to no record support for that statement. In any event, identity may be
at issue, for purposes of postconviction DNA testing, even if the victim positively
identifies the defendant. Zollman v. State, 820 So. 2d 1059, 1062 (Fla. 2d DCA
2002). In his reply to this Court, Mitchell states that one of the state witnesses
testified to seeing him leave the beach area with another individual before the
victim was attacked.

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sample collected from the victim contained three DNA profiles, and none
of them matched Hampton, such evidence could exonerate him. The
Galloway opinion, on the other hand, suggested one co-defendant
committed sexual assault and the other two were guilty as principals for
assisting; in such a case, semen proved to have been deposited by one
would not exonerate the other two. See Hampton, 924 So. 2d at 36–37.

   The summary record for this appeal does not contain any trial
testimony, but it includes the probable cause affidavit, in which the victim
reported that “all three subjects raped her.” On this record, the case
appears to be more like Hampton than Galloway. If DNA testing reveals
that semen containing the DNA profile of three different men was found
within the victim, but none of it matched Mitchell, then he could be
exonerated.

   An appellate court should affirm the summary denial of a rule 3.853
motion only if “the record shows conclusively that the appellant is entitled
to no relief.” Fla. R. App. P. 9.141(b)(2)(D). The record we have been
provided does not conclusively show that Mitchell is entitled to no relief.
Accordingly, we reverse and remand.

   Reversed and Remanded.

STEVENSON, GROSS and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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