Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-969 _____________________________ WILSON HOLMES, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Mark Borello, Judge. March 26, 2020 PER CURIAM. Appellant appeals the summary denial of his Motion for Postconviction DNA Testing pursuant to Florida Rule of Criminal Procedure 3.853. Appellant argues there was no physical evidence proving he committed the crimes for which he was convicted, and the evidence presented at trial was not tested for DNA. Because Appellant’s motion is conclusively refuted by the record, we affirm. The record establishes that the victim was attacked at a post office by an unknown male in 1999. During the attack, the victim bit one of the assailant’s fingers. Later, when she was examined at the hospital, the victim informed staff that she could feel something stuck in her teeth. A piece of flesh was removed and collected as part of the sexual assault kit. Subsequently, the case became a cold case. Then in 2010, to clear out a backlog of cold cases, the sexual assault kit was sent for DNA testing. The DNA testing on the piece of skin removed from the victim’s teeth came back as a match for Appellant. Thereafter, Appellant was arrested, charged, and found guilty of kidnapping and sexual battery. He was sentenced to three concurrent life sentences. Appellant’s motion seeks DNA testing of the victim’s clothing, the sexual assault kit, a blood stain card, skin removed from the victim’s teeth, and any other biological material collected from the victim. Appellant acknowledges the State claims to have tested the skin in 2010 and matched it to him. However, he questions the results and alleges the State acted in bad faith when it refused to provide a portion of the skin to the defense for testing. In the State’s response to Appellant’s motion, it argued that the evidence with the most probative value was tested. Specifically, the piece of skin retrieved from between the victim’s teeth matched Appellant’s DNA—the statistical value of the match was 1 in 490 billion African American males, which is rare. The State opined the DNA match to Appellant from the skin sample was more probative than any DNA results from the clothing that was found to contain blood but was negative for semen. And, as was told to the jury, the skin sample no longer exists as the entire sample was consumed during testing. The State further argued that Appellant failed to demonstrate how further DNA testing would result in exoneration given the DNA match. The postconviction court denied Appellant’s motion, finding there was not a reasonable probability of acquittal or a lesser sentence. This timely appeal followed. The postconviction court’s summary denial of a postconviction motion filed pursuant to rule 3.853 is reviewed under the de novo standard. Lambrix v. State, 124 So. 3d 890, 895 (Fla. 2013). The postconviction court must attach portions of the record that conclusively demonstrate the defendant is not entitled to relief when summarily denying a motion for postconviction DNA testing. Jordan v. State, 950 So. 2d 442, 444 (Fla. 4th DCA 2007). 2 “It is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence.” Zeigler v. State, 116 So. 3d 255, 258 (Fla. 2013) (internal quotation and citation omitted). To determine whether DNA testing is warranted, the court must find a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA testing had been admitted at trial. Id. at 259 (citing Fla. R. Crim. P. (c)(5)(C)); see also Scott v. State, 46 So. 3d 529, 533 (Fla. 2009). ‘“In order for the trial court to make the required findings, the movant must demonstrate the nexus between the potential results of the DNA testing on each piece of evidence and the issues in the case.’” Gore v. State, 32 So. 3d 614, 618 (Fla. 2010) (quoting Hitchcock v. State, 866 So. 2d 23, 27 (Fla. 2004)). Here, Appellant fails to carry his burden of demonstrating he would be exonerated, or his sentence mitigated, by additional DNA testing. The records attached to the order on appeal document Appellant’s DNA matched that of the skin located in the victim’s mouth, and the victim identified Appellant as the perpetrator in court. Appellant fails to establish how the 2010 DNA test was inconclusive, especially considering the statistical value of the match. See Newberry v. State, 870 So. 2d 926, 927 (Fla. 4th DCA 2004) (holding defendant failed to establish DNA testing was inconclusive where “(1) DNA tests were performed; (2) expert testified as to their reliability and the defendant’s DNA matched the DNA found on the victim, but (3) the defendant offered contrary evidence challenging the reliability of the prior testing methods”). AFFIRMED. LEWIS, B.L. THOMAS, and M.K. THOMAS, JJ., concur. 3 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Wilson Holmes, pro se, Appellant. Ashley Moody, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee. 4