       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             ELIAS ROSADO,
                                Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-2968

                             [March 6, 2019]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Paul L. Backman,
Judge; L.T. Case No. 07-002858CF10A.

   Elias Rosado, Florida City, pro se.

  Ashley B. Moody, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Elias Rosado appeals an order summarily denying his second rule
3.850 motion and an order prohibiting further pro se filing in this case.
We affirm the denial of the rule 3.850 motion and reverse the sanction.

    In 2007, Rosado pleaded guilty to burglary of a structure, and he was
sentenced to ten years in prison as a habitual offender. He filed a prior
rule 3.850 motion that was denied after an evidentiary hearing and
affirmed on appeal. Rosado v. State, 67 So. 3d 220 (Fla. 4th DCA 2011).
He also filed a rule 3.800(a) motion to correct an illegal sentence that was
denied and affirmed on appeal. Rosado v. State, 234 So. 3d 747 (Fla. 4th
DCA 2017).

   On July 19, 2017, Rosado filed this rule 3.850 motion alleging newly
discovered evidence after he received a notice from the State that DNA
statistical probabilities may have been miscalculated in his case. The
notice stated that the Broward Sheriff’s Office Crime Laboratory
inappropriately used Combined Probability of Inclusion (CPI) to calculate
the statistical probabilities of genetic profiles in complex mixture DNA
cases. The notice did not indicate whether CPI calculations were used in
Rosado’s case. He sought to withdraw his plea, alleging that he would
have proceeded to trial if he had known that the DNA statistics were
miscalculated.

   The trial court ordered the State to file a response to the rule 3.850
motion in ninety days. After the State did not timely respond, Rosado filed
two motions to hear and rule and he requested supplemental DNA
discovery including all serology and DNA reports and to allow further
testing.

    More than a year after Rosado filed this rule 3.850 motion and eight
months after the court’s order, the State filed its response. The State
explained that the notice about calculation errors in complex DNA mixture
cases did not apply in this case because the sample analyzed was not a
mixture. It was blood from a single person. The State argued there was
no good cause to allow postconviction discovery. Referring to filings in
Rosado’s other cases, the State asked the court to prohibit further pro se
filing.

   The trial court denied the rule 3.850 motion, and following an order to
show cause pursuant to State v. Spencer, 751 So. 2d 47 (Fla. 1999), the
court prohibited further pro se filing in this case.

   We affirm the denial of Rosado’s rule 3.850 motion because the State’s
generic DNA Brady 1 notice does not apply to Rosado’s case. As a result,
there is no newly discovered evidence that could have affected the
voluntariness of his plea.

   However, we agree with Rosado that the trial court erred in prohibiting
further pro se filing in this case. See Gaston v. State, 141 So. 3d 627 (Fla.
4th DCA 2014). Rosado’s second rule 3.850 motion, filed in response to
the State’s Brady notice, was not an abuse of procedure. The Brady notice
did not provide enough information for him to understand that the
calculation error did not occur in his case. The Spencer order to show
cause was directed at this case, not his other unrelated cases. On appeal,
the State acknowledges that apart from his motions to hear and rule and
his request for discovery, this case is controlled by Gaston. These motions
were related to the State’s delay in responding to the rule 3.850 motion. A
prompt response would have shown that the Brady notice was inapplicable
and there was no need for further discovery. The record does not show
that Rosado abused the postconviction process in this case. See Fla. R.

1   Brady v. Maryland, 373 U.S. 83 (1963).

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Crim. P. 3.850(n). Accordingly, the sanction prohibiting further pro se
filing is reversed.

  Affirmed in part; reversed in part.

WARNER, GROSS and KLINGENSMITH, JJ., concur.

                           *            *   *

  Not final until disposition of timely filed motion for rehearing.




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