       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           JOEL THEODORE,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-2180

                             [April 25, 2018]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Michael I. Rothschild,
Judge; L.T. Case No. 13-14736 CF10A.

   Joel Theodore, Perry, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and James J.
Carney, Senior Assistant Attorney General, West Palm Beach, for
appellee.

PER CURIAM.

   Joel Theodore appeals an order summarily denying his Florida Rule of
Criminal Procedure 3.850 motion.

   After receiving a notice from the state that DNA evidence in his case
may have relied on improper statistical calculations, Theodore moved to
withdraw his plea. He alleged in part that he would not have entered the
plea and would have proceeded to trial if he had known that the DNA
evidence was inaccurate.

   The trial court denied the motion, concluding that Theodore failed to
show prejudice and his claim was conclusively refuted by a DNA inquiry
form signed by Theodore and the attorneys at the time of the plea. On
the form, the defense attorney and the prosecutor confirmed that they
were unaware of any physical evidence for which DNA testing could
exonerate Theodore. This statement does not mean that there was no
DNA evidence in his case. The form does not refute his claim that the
state’s DNA evidence was inaccurate and that the faulty DNA statistical
calculations induced his plea.

   Despite some equivocal language, Theodore’s rule 3.850 motion states
a facially sufficient claim that is not conclusively refuted by the attached
DNA inquiry form. Accordingly, we reverse the summary denial of the
motion and remand for further proceedings.

   Reversed and remanded.

DAMOORGIAN, CIKLIN and KLINGENSMITH, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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