         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                              NOT FINAL UNTIL TIME EXPIRES TO
                                              FILE MOTION FOR REHEARING AND

                                               DISPOSITION THEREOF IF FILED

NATHANIEL POOLE, JR.,

             Appellant,

 v.                                                  Case No. 5D17-1442

STATE OF FLORIDA,

           Appellee.
________________________________/

Opinion filed September 7, 2017

3.853 Appeal from the Circuit
Court for Volusia County,
Leah R. Case, Judge.

Melissa Montle and Seth E. Miller, of
Innocence Project of Florida, Inc.,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Bonnie Jean Parrish,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

      Nathaniel Poole, Jr., appeals the summary denial of his motion for DNA testing

filed pursuant to Florida Rule of Criminal Procedure 3.853. The postconviction court’s

one-page unelaborated denial order was entered without ordering the State to respond

to the motion and without any court records attached to the order.      Due to these

deficiencies, we reverse and remand.
      In 1981, following a jury trial, Poole was convicted of kidnapping, sexual battery,

robbery, and aggravated assault. According to the victim’s testimony, Poole was one of

the three perpetrators of these crimes against her. Poole denied committing the crimes

or even being present when the crimes were committed. The objective trial evidence that

the State used to link Poole to the crimes was that blood type “O” was discovered at the

crime scene and that Poole has type “O” blood. No other scientific tests were performed

on other evidence prior to trial, which consisted of pubic hairs, blood, semen, and oral

swabs. Poole’s convictions were affirmed on direct appeal. Poole v. State, 413 So. 2d

898 (Fla. 5th DCA 1982).

      Florida Rule of Criminal Procedure 3.853(d) provides that a “motion for

postconviction DNA testing may be filed or considered at any time following the date that

the judgment and the sentence in the case becomes final.” Prior to Poole’s present

motion, in 2012, Poole, by counsel, moved for DNA testing. Following an evidentiary

hearing, the postconviction court granted Poole’s motion in part. The court found that

Poole met his burden of proof that there exists a reasonable probability that he would

have been acquitted if the DNA evidence had been admitted at trial. The court ordered

the Florida Department of Law Enforcement (“FDLE”) to perform the DNA testing,

declining Poole’s request for the DNA testing to be conducted by an accredited laboratory

other than the FDLE because Poole had not established the requisite “good cause” under

rule 3.853(c)(7).1 We affirmed the State’s appeal of this order without opinion. State v.

Poole, 162 So. 3d 1039 (Fla. 5th DCA 2015).


      1   Rule 3.853(c)(7) states:

               (7) The court-ordered DNA testing shall be ordered to be
               conducted by the Department of Law Enforcement or its

                                           2
       The FDLE performed the DNA testing on various items of evidence and issued a

report that was favorable to Poole but did not completely exonerate him. Poole, through

counsel, then sought the unredacted FDLE case file for review by his own DNA expert to

determine whether additional, more sensitive DNA testing on these same items of

evidence that had not been performed by the FDLE could exonerate him.                  Poole

eventually moved to compel the production of this information, which the court granted.

       Poole has now filed the instant motion for additional testing, attaching an affidavit

from Dr. Julie Heinig, the laboratory director in the forensics department of the DNA

Diagnostic Center located in Fairfield, Ohio, in support of his motion. Dr. Heinig opined

that she agreed with the results and conclusions in the FDLE report but that more

advanced and sensitive DNA testing, which was not performed by the FDLE, would be

particularly useful in this case and may achieve more robust and complete DNA profiles,

especially on the more degraded samples tested. Dr. Heinig further opined that there

was no scientific reason not to perform this additional testing and that her lab is accredited

and has both the capability and the extensive experience to perform this more

particularized DNA testing in these types of cases. Finally, Poole alleged that he would

bear the cost of this additional testing at this independent laboratory.

       Rule 3.853(c) sets forth the procedure that the court must follow where, as here,

the motion for postconviction DNA testing is facially sufficient. First, the court must order

the prosecuting authority to respond to the motion within thirty days or such other time as



              designee, as provided by statute. However, the court, upon a
              showing of good cause, may order testing by another
              laboratory or agency certified by the American Society of
              Crime Laboratory Directors/Laboratory Accreditation Board
              (ASCLD/LAB) or Forensic Quality Services, Inc. (FQS) if
              requested by a movant who can bear the cost of such testing.

                                              3
determined by the court. Fla. R. Crim. P. 3.853(c)(2). Thereafter, upon receipt of this

response, the court shall review the response and then either enter an order on the merits

or set the motion for hearing. Id. at 3.853(c)(3).

       The postconviction court erred when it denied Poole’s motion without holding an

evidentiary hearing or attaching to the order portions of the record conclusively refuting

Poole’s motion. See Girley v. State, 935 So. 2d 55, 56 (Fla. 1st DCA 2006); Reddick v.

State, 929 So. 2d 34, 36–37 (Fla. 4th DCA 2006); Schofield v. State, 861 So. 2d 1244,

1246 (Fla. 2d DCA 2003). The court also erred by ruling on the motion without requiring

a response from the State. See Girley, 935 So. 2d at 56.

       Accordingly, we reverse the order on appeal and remand to the postconviction

court with directions that the court order the State to file a response to the motion, and

thereafter, upon receipt and review of the response, to either set the motion for hearing

or enter an order on the merits. Moreover, because the postconviction court previously

held that Poole met his evidentiary burden to demonstrate that there is a reasonable

probability that Poole would have been acquitted if DNA evidence had been admitted at

trial, the State’s response should, at a minimum, address whether it has any objections

to the additional, more sensitive DNA testing techniques described in Dr. Heinig’s affidavit

to be performed at Poole’s expense at an accredited outside laboratory, and if so, the

specific grounds for the objection.

       REVERSED and REMANDED, with directions.

COHEN, C.J., LAMBERT and EISNAUGLE, JJ., concur.




                                             4
