Supreme Court of Florida ____________
No. SC2026-0528 ____________
JAMES AREN DUCKETT, Appellant,
vs.
STATE OF FLORIDA, Appellee.
April 30, 2026
PER CURIAM.
James Aren Duckett is a prisoner under sentence of death
whose execution has been stayed. In this case, he appeals the
circuit court’s order denying his request to be provided the
underlying DNA testing data necessary for an analysis and opinion
by a qualified bioinformaticist. That data was generated by a
private laboratory that tested a DNA sample relevant to Duckett’s
guilt or innocence. Duckett also appeals the circuit court’s denial
of his demands for public records in which he sought the testing
data as well as information pertaining to the private laboratory’s testing process and protocols. 1
For the reasons that follow, we reverse the circuit court’s
denial of Duckett’s request for the underlying DNA testing data. 2
However, we affirm the court’s denial of his public records demands
insofar as they sought information regarding the testing process
and protocols. Consistent with these holdings, we remand for the
underlying testing data to be provided for a statistical analysis, as
directed by the Florida Department of Law Enforcement (FDLE).
Further, if a dispute arises regarding the extent of the data
necessary for analysis, the circuit court shall hold an evidentiary
hearing to resolve the dispute.
I
On February 27, 2026, Governor Ron DeSantis signed a
warrant scheduling Duckett’s execution for March 31, 2026.
1. As explained in greater detail below, we have jurisdiction. See art. V, § 3(b)(1), Fla. Const.; § 925.11(3)(a), Fla. Stat. (2025); see also Fla. R. Crim. P. 3.853(f).
2. To the extent Duckett’s public records demands also sought the testing data, we decline to address whether the circuit court abused its discretion in denying the production of such records. Our opinion today renders moot any dispute over the correctness of the circuit court’s ruling in this respect.
-2- Following issuance of the death warrant, Duckett filed a motion,
which he later amended, seeking postconviction DNA testing under
section 925.11, Florida Statutes, and Florida Rule of Criminal
Procedure 3.853. The sample he wanted tested was a 1987 swab
from the victim’s underwear mounted on a slide (called “Q-6(3)”),
which had continuously been in the State’s possession. The swab
contained a small number of sperm heads. Duckett contended that
DNA testing would show that the sperm was not his, meaning that
someone else committed the murder and he is actually innocent.
Over two decades ago, during Duckett’s initial postconviction
proceedings, we were informed that certain items of clothing
introduced into evidence could possibly be tested for DNA,
including Q-6(3). Duckett v. State, 918 So. 2d 224, 230 (Fla. 2005).
We relinquished jurisdiction to the circuit court to allow for
determination of “whether there in fact existed clothing that could
be tested for DNA.” Id. On remand, the examiner for FDLE
determined that because Q-6(3) had deteriorated and contained too
few sperm heads, the DNA testing methods then available would not
have produced any conclusive results. Id. The examiner added
that any attempt to test the sample would have destroyed it. Id.
-3- Outside agencies confirmed the FDLE examiner’s concerns. Thus,
no testing was performed on Q-6(3). Id.
Noting these background facts, Duckett argued in his rule
3.853 motion that Q-6(3) should be tested using Single Nucleotide
Polymorphism (SNP), a technology that allows for more reliable DNA
testing of small, deteriorated samples. He requested that Q-6(3) be
sent to a private laboratory 3 because FDLE does not have the
capability to perform SNP testing.
The State agreed that Q-6(3) was potentially exculpatory and
therefore focused its arguments on the testing process. Essentially
accepting the State’s position, the circuit court granted Duckett’s
motion for DNA testing. Per section 925.11(2)(h), the court
permitted the State to exercise complete control over the location,
timing, and method of testing. When it became clear that FDLE
could not complete the SNP testing, Q-6(3) was ultimately sent to a
private laboratory requested by the State called DNA Labs
International, Inc. (DLI).
3. Duckett asked that the testing be performed by Othram, Inc. He noted that this laboratory had the appropriate capabilities and that FDLE had an existing contract with it.
-4- Meanwhile, two days after his rule 3.853 motion was granted,
Duckett filed his fifth successive postconviction motion under
Florida Rule of Criminal Procedure 3.851, in which he claimed,
among other things, that the forthcoming DNA results would
provide newly discovered evidence of his actual innocence.4 At the
Huff 5 hearing, the circuit court learned that DNA testing would not
be completed within the timeline contemplated by our scheduling
order. Therefore, the circuit court asked us for an extension of time
to allow the DNA testing to be completed and thereby give the court
the opportunity to “fully adjudicate the matter.” We granted that
request in part and issued a revised scheduling order.
At a subsequent status conference, FDLE explained that
testing would likely be completed around March 27, 2026, a date
beyond the timeframe contemplated by our revised scheduling
order. In light of this and other facts, Duckett asked the circuit
court to stay the execution and to delay ruling on his successive
4. Per our scheduling order and absent a stay, Duckett was required to file his successive postconviction motion before DNA testing results were available.
5. Huff v. State, 622 So. 2d 982 (Fla. 1993).
-5- postconviction motion until the DNA testing was completed. The
State, by contrast, urged the court to rule on the motion and allow
Duckett to file another successive rule 3.851 motion based on the
DNA results, if they were favorable to him. Agreeing with the State,
the court issued a final order summarily denying Duckett’s
successive postconviction motion and declining to stay the
execution. As for Duckett’s newly discovered evidence claim, the
court ruled there was currently no factual basis for granting relief
because it had yet to receive the DNA results.
Duckett appealed the summary denial of his successive
postconviction motion. He also moved for a stay of execution and
petitioned for a writ of habeas corpus. That appeal (case number
SC2026-0049) and petition (case number SC2026-0450) are still
pending before us. 6 Meanwhile, Duckett filed a motion in circuit
court requesting that FDLE provide him the testing data and
protocols as soon as the DNA results became available.
On March 26, 2026, we exercised our discretion and granted
Duckett’s motion for a stay of execution to allow for completion of
6. No one disputes that these matters are within this Court’s jurisdiction.
-6- the DNA testing. See § 922.06(1), Fla. Stat. (2025) (“The execution
of a death sentence may be stayed . . . incident to an appeal.”). 7
Testing was completed the following day. The Certificate of
Analysis conveyed that the DNA indicated at least one male
contributor. The report went on to conclude that “[d]ue to the
limited nature of the DNA calls obtained from this sample, it is not
suitable for genealogical comparisons or phenotype and ancestry
estimations.” In an accompanying email, FDLE relayed that the
testing was “inconclusive” and noted that neither FDLE nor DLI has
the capability to complete the testing process by performing a
statistical analysis on the data that was generated. 8 However,
FDLE suggested that a qualified bioinformaticist may be able to
perform that analysis and, thus, provide statistical calculations.
At this point, the State asked us to lift the stay of execution,
7. Justice Tanenbaum dissented.
8. In the email, FDLE explained that although testing “yielded results for Y (male-specific) SNPs,” DLI “has no mechanism to provide a statistical weight associated with only the Y SNP results,” which means it is “unable to report a match between Mr. Duckett’s Y SNPs and those detected in the sample.” By the same token, according to FDLE, this meant DLI also was unable to report an exclusion.
-7- whereas Duckett requested that we relinquish jurisdiction to the
circuit court. On March 30, 2026, we issued an order explaining
that the circuit court continued to have concurrent jurisdiction to
rule on motions related to DNA testing and successive claims filed
by Duckett and that nothing in our prior scheduling order
precluded these additional filings. Accordingly, we declined to lift
the stay and denied Duckett’s motion to relinquish as moot. 9
Thereafter, Duckett asked the circuit court to order that the
underlying testing data be released by the State and DLI for a
qualified bioinformaticist to perform a statistical analysis. He
asserted that this analysis could exonerate him and requested that
the circuit court hold an evidentiary hearing to resolve any related
factual issues. He also filed public records demands under Florida
Rule of Criminal Procedure 3.852(i), seeking the testing data as well
as DLI’s testing process and protocols. In response, the State
asserted that the testing results did not exonerate Duckett but
actually inculpate him. It further argued that no analysis of the
testing data was necessary because any such analysis would only
9. Justice Tanenbaum dissented in part.
-8- affect the degree of inculpation. The State also objected to the
disclosure of DLI’s testing process and protocols. Finally, it
contended that no evidentiary hearing was required.
After holding two status conference hearings with less than a
day’s notice and at which no sworn testimony was permitted, the
circuit court issued an order denying Duckett’s request for the
testing data. The court found that Duckett had failed to establish
how the information he sought could lead to his exoneration. The
court also denied his public records demands on the basis that they
were neither “relevant to the subject matter of a proceeding under
rule 3.851” nor “reasonably calculated to lead to the discovery of
admissible evidence.” Fla. R. Crim. P. 3.852(i)(2)(C).
Duckett appeals that order, which concluded rule 3.853
proceedings in circuit court.
II
Though neither party raises the issue, we begin by addressing
our jurisdiction to review the challenged order. See JJJTB, Inc. v.
Schmidt, 415 So. 3d 129, 132 (Fla. 2025) (“Subject matter
jurisdiction is uniquely unwaivable because it concerns a court’s
constitutional or statutory authority to hear a certain type of case,
-9- and the parties cannot confer such authority on a court.” (citing
MCR Funding v. CMG Funding Corp., 771 So. 2d 32, 35 (Fla. 4th
DCA 2000))). We are satisfied that we have jurisdiction.
Section 925.11(3)(a) provides that “[a]n appeal from the court’s
order on the petition for postsentencing DNA testing may be taken
by any adversely affected party.” Likewise, rule 3.853 provides that
“[a]n appeal may be taken to the appropriate appellate court only
from the final order disposing of the motion.” Fla. R. Crim. P.
3.853(f). Lastly, Florida Rule of Appellate Procedure 9.140 confirms
that “[a] defendant may appeal . . . orders denying relief under” rule
3.853. Fla. R. App. P. 9.140(b)(1)(D).
Here, the challenged order denied Duckett the relief he sought
under rule 3.853, namely for the complete results of his DNA
testing. In other words, the order “adversely affected” him.
§ 925.11, Fla. Stat. Moreover, the order here is “final” as required
by rule 3.853(f) because it concluded the rule 3.853 proceedings
and brought “an end to the judicial labor,” S. L. T. Warehouse Co. v.
Webb, 304 So. 2d 97, 99 (Fla. 1974). Notably, we have exercised
appellate jurisdiction to review final orders denying capital
defendants’ motions for postconviction DNA testing, citing the
- 10 - constitutional provision giving us authority to review death-penalty
appeals. E.g., Everett v. State, 377 So. 3d 1123, 1125 (Fla. 2024);
Reynolds v. State, 373 So. 3d 1124, 1125 (Fla. 2023). 10
III
Duckett argues that the circuit court erred in denying his
request for the underlying testing data necessary for a qualified
bioinformaticist’s analysis and opinion. He contends that without
this data he has not been provided the complete testing results, to
which he is entitled under section 925.11 and rule 3.853. On this
record, we agree.
Section 925.11(2)(i) provides that “[t]he results of the DNA
testing ordered by the court shall be provided to the court, the
10. The dissent argues, in part, that we do not have jurisdiction to address collateral matters in cases where the death penalty has been imposed. None of the cases cited by the dissent lead to that conclusion. Longstanding precedent says just the opposite. See State v. Fourth Dist. Ct. of Appeal, 697 So. 2d 70, 71 (Fla. 1997) (holding “that in addition to our appellate jurisdiction over sentences of death, we have exclusive jurisdiction to review all types of collateral proceedings in death penalty cases”); Willacy v. State, No. SC2026-0519, 2026 WL 1021168, at *3 (Fla. Apr. 15), cert. denied, No. 25-7220, 2026 WL 1074143 (U.S. Apr. 21, 2026); Trepal v. State, 754 So. 2d 702, 705-06 (Fla. 2000). We are not convinced that our precedent is “clearly erroneous,” State v. Poole, 297 So. 3d 487, 507 (Fla. 2020), nor has either party asked us to revisit our prior holdings in this regard.
- 11 - sentenced defendant, and the prosecuting authority.” (Emphasis
added); see also Fla. R. Crim. P. 3.853(c)(8). In this case, we are
persuaded that the complete “results” include the underlying
testing data, not simply DLI’s report that testing was “inconclusive”
when it (and FDLE) lacks the capability to provide the analysis that
FDLE suggested may be possible. 11 Our reasoning is twofold.
First, to grant a motion for postconviction DNA testing, section
925.11 requires the court to find, among other things, that “the
results of DNA testing of that physical evidence would be admissible
at trial.” § 925.11(2)(f)2., Fla. Stat.; see also Fla. R. Crim. P.
3.853(c)(5)(B). As the State readily concedes, an expert testifying at
trial must provide statistical calculations of the testing data when
reporting DNA results. See Brim v. State, 695 So. 2d 268, 271 (Fla.
1997). An expert cannot simply say there is a “match” between the
defendant’s DNA and the profile obtained from testing. Against this
11. We note that “inconclusive” is not synonymous with “incomplete.” Duckett has not received the complete results because he has not been given the underlying data. Nevertheless, it is possible that, after conducting the statistical analysis that FDLE suggests is possible in this case, the entity performing the analysis will be unable to offer a definitive conclusion based on a comparison of Duckett’s known DNA and the profile generated from the sample.
- 12 - backdrop, the statute’s reference to “the results of DNA testing . . .
be[ing] admissible at trial” suggests that those “results” include the
testing data necessary for a DNA expert to offer an opinion at trial.
Second, FDLE itself has suggested that Duckett has received
incomplete testing results. On several occasions, it has indicated
that the “results” include the testing data upon which DLI’s
“inconclusive” finding was made. Namely, in an email, FDLE
confirmed that the testing “yielded results for Y (male-specific)
SNPs” but that both FDLE and DLI have “no mechanism to provide
a statistical weight associated with only the Y SNP results.” FDLE
therefore suggested the following course:
A qualified bioinformaticist may be able [to] provide an opinion and calculation based on the Y SNP results. Speaking only from personal awareness of entities working in this space, I believe Parabon Nanolabs, Inc. and/or Othram, Inc. would be capable of further reviewing the Y SNP data.
(Emphasis added.) This phrasing equates the “Y SNP results” with
the “Y SNP data,” which has yet to be analyzed. FDLE says that
another laboratory might be able to perform that analysis on the
testing data. Accordingly, this email (along with other statements
by FDLE) supports the conclusion that without the underlying data,
- 13 - Duckett has not been supplied complete testing results. 12
The State disagrees. 13 Citing the circuit court’s ruling below,
it argues Duckett failed to show how any analysis of the testing
data would exonerate him. In the State’s view, it was proper for the
circuit court to impose a burden on Duckett to demonstrate,
through expert testimony or otherwise, how that analysis would
12. The dissent does not expressly engage with our interpretation of section 925.11. It merely asserts, without elaboration, that Duckett has received the testing results. We simply disagree. Relatedly, the dissent contends that Duckett has requested the underlying data only to impeach DLI’s testing process. While Duckett may have sought information regarding DLI’s testing process and protocols for that purpose, we have denied those requests. But Duckett has also repeatedly asserted (at the status conferences and in his briefing) that a statistical analysis of the underlying data—which neither DLI nor FDLE is able to perform— could exonerate him. Although the dissent suggests that this analysis could never be exonerating, we do not find evidentiary support for that conclusion in the record before us.
13. We observe that in various statements in its answer brief, the State (whether intentionally or not) draws an equivalence between the DNA testing “results” and the testing data. See, e.g., Answer Brief of Appellee at 6 (“Duckett presented no testimony or affidavits to demonstrate that statistical analysis of the results could yield any exculpatory evidence.”); id. at 13 (“To label the results as anything other than ‘inconclusive’ requires statistical analysis.”); id. (noting that “[t]he lower court denied the motion for statistical analysis of the SNP DNA results”).
- 14 - lead to his exoneration. 14 This argument is meritless.
The circuit court’s imposition of this exoneration-based
burden at this stage has no basis in section 925.11 or rule 3.853.
Upon granting Duckett’s motion for postconviction DNA testing, the
court found that he had met the requirements of the statute and
rule—i.e., that he carried his burden. Once that ruling was made,
Duckett was not required to establish anything else to receive the
complete results of that testing. Therefore, the circuit court
compounded its error in denying Duckett’s request for the
underlying data based on his failure to carry a burden that is
without legal foundation.
For all of these reasons, we reverse the circuit court’s order to
the extent it denied Duckett’s request for the underlying DNA
testing data necessary for analysis.
IV
Duckett also claims the circuit court abused its discretion in
denying his demands for additional public records, in which he
14. Even so, as noted above, the State insisted that an evidentiary hearing was unnecessary.
- 15 - sought information about DLI’s testing process and protocols. 15 We
find no abuse of discretion.
The circuit court rejected Duckett’s demands on the basis that
this information was not “relevant to a subject matter of a
proceeding under rule 3.851” or “reasonably calculated to lead to
the discovery of admissible evidence.” See Fla. R. Crim. P.
3.852(i)(2)(C). We agree that Duckett has failed to allege, as rule
3.852 and our precedent require, how DLI’s testing process and
protocols could relate to a colorable claim for postconviction relief.
See Dailey v. State, 283 So. 3d 782, 792 (Fla. 2019). Instead, he
seeks this information only as possible impeachment evidence.
Therefore, we affirm the circuit court’s denial of these demands as
to the testing process and protocols.
V
For the foregoing reasons, we affirm in part, reverse in part,
and remand for the full results of Duckett’s DNA testing—namely,
the underlying data—to be provided to him so that the statistical
15. As we have noted, Duckett also sought the testing data in these records demands. Given our holding, we decline to address the denial of those demands, finding any dispute regarding them to now be moot.
- 16 - analysis he seeks may be performed by a qualified bioinformaticist.
Furthermore, we instruct the circuit court to hold an evidentiary
hearing if any dispute arises as to the extent of the data necessary
for analysis.
It is so ordered.
MUÑIZ, C.J., and LABARGA, COURIEL, GROSSHANS, FRANCIS, and SASSO, JJ., concur. TANENBAUM, J., dissents with an opinion.
NO MOTION FOR REHEARING WILL BE ALLOWED.
TANENBAUM, J., dissenting.
The court has no jurisdiction to consider the appeal in this
case. We should dismiss.
A
When Florida’s citizens revised Article V of their constitution
in 1956, they modernized “the Florida judicial system at the
appellate level,” creating district courts of appeal that would have
the “final and absolute” word “in most instances” of review. Jenkins
v. State, 385 So. 2d 1356, 1357–58 (Fla. 1980). That is to say, the
district courts were “meant to be courts of final, appellate
jurisdiction” regarding nearly all trial court final judgments and
- 17 - orders. Lake v. Lake, 103 So. 2d 639, 642 (Fla. 1958); cf. Art. V,
§ 5(c), Fla. Const. (1956) (providing for the right to appeal “all final
judgments or decrees” to the district court “except those from which
appeals may be taken direct to the supreme court or to a circuit
court”); id. § 4(b) (limiting the right to directly appeal a trial court’s
final judgment to the supreme court to several very narrow
categories, including “judgments imposing the death penalty”).
The objective was to relieve the supreme court’s extreme case
congestion. Jenkins, 385 So. 2d at 1358–59. This court’s power, in
turn, was “limited and strictly prescribed.” Id. at 1357 (commenting
in the context of this court’s power “to review decisions of the
district courts of appeal”); cf. Mystan Marine, Inc. v. Harrington, 339
So. 2d 200, 200 (Fla. 1976) (“The jurisdiction of this Court extends
only to the narrow class of cases enumerated in Article V, Section
3(b) of the Florida Constitution.” (emphasis supplied)). Doing so
would leave the supreme court to “function[] as a supervisory body
in the judicial system for the State, exercising appellate power in
certain specified areas essential to the settlement of issues of public
importance and the preservation of uniformity of principle and
practice.” Jenkins, 385 So. 2d at 1357–58.
- 18 - For this approach to work, though, this court would have to be
careful “not to venture beyond the limitations of its own powers by
arrogating to itself the right to” engage in review not provided for by
the constitution. Lake, 103 So. 2d at 642. Yet the court did not
heed its own caution, continuing to construe its jurisdiction ever
more broadly, once again resulting in “a staggering case load.”
Jenkins, 385 So. 2d at 1358. The supreme court ultimately urged
another constitutional amendment, one that would further limit its
jurisdiction and essentially save it from its own accretions of
authority. See id. at 1358–59. The voters approved that
amendment, which went into effect in 1980.
To be sure, these increasing jurisdictional limitations still left
in place the court’s express power to “hear appeals from final
judgments of trial courts imposing the death penalty.” Art. V,
§ 3(b)(1), Fla. Const. (1980). Against the historical backdrop just
described, though, there is no good reason to read this grant of
jurisdiction more broadly than others—so no justification for this
court’s repeated “venture[s] beyond the limitations” that section
3(b)(1) expressly establishes regarding review of death penalty
judgments. Lake, 103 So. 2d at 642.
- 19 - “Our state Constitution is a limitation upon power,” so
“constitutional jurisdiction” cannot be expanded if doing so
“result[s] in a diminution of the constitutional jurisdiction of some
other court.” Harry E. Prettyman, Inc. v. Fla. Real Est. Comm’n, 109
So. 442, 445 (Fla. 1926) (internal quotations omitted); cf. Hodgson
v. Bowerbank, 9 U.S. 303, 304 (1809); Verlinden B.V. v. Cent. Bank
of Nigeria, 461 U.S. 480, 491 (1983). The rule under our modern
constitutional structure is that the district court of appeal has
exclusive appellate jurisdiction over all trial court final judgments
and orders “not directly appealable to the supreme court or a circuit
court.” Art. V, § 4(b)(1), Fla. Const.
Considering, then, the constitutional provision granting this
court limited direct review authority in matters involving the death
penalty, the text could not be plainer. A final judgment that
imposes the death penalty is appealable to this court (so not
appealable to the district court of appeal). But if a trial court order
to be reviewed is not one imposing the death penalty, it is not
appealable to this court, only to the district court. Reading the
scope of our authorized review any more broadly than what the
clear text provides necessarily aggrandizes what should be our own
- 20 - narrow appellate authority at the expense of the broad jurisdiction
the constitution expressly gives to the district courts of appeal.16
B
That, unfortunately, is what continues to happen in cases like
this. Do not lose sight of the only matter on review in this so-called
appeal: an order denying free-floating discovery requests related to
DNA testing that was both ordered and completed, requests
unmoored from any ongoing proceeding attacking the legality of a
judgment and death sentence subject to this court’s appellate
jurisdiction.
To be clear, the petition for DNA testing is not a collateral
proceeding attacking the legality of the judgment. A petition filed
under section 925.11, Florida Statutes, opens a parallel proceeding,
16. I recently explained the historical basis for this court also having jurisdiction over a collateral attack on a judgment imposing the death penalty under this constitutional provision. See Willacy v. State, No. SC2026-0519, 2026 WL 1021168, at *8–9 (Fla. Apr. 15) (Tanenbaum, J., concurring in part and dissenting in part) (observing that this court’s affirmance of the judgment imposing the death penalty merges with that judgment, such that a motion filed under Florida Rule of Criminal Procedure 3.851 attacking the underlying absolutely final judgment proceeds under our jurisdiction in a way mirroring the coram nobis proceeding that a rule 3.851 proceeding replaced), cert. denied, No. 25-7220, 2026 WL 1074143 (U.S. Apr. 21, 2026).
- 21 - advancing a separate right of action to obtain testing if certain
criteria are met. The DNA testing is not a discovery device adjunct
to a collateral attack. And the statute is not death-specific. It
authorizes DNA testing for any felony, not just in cases in which
death has been imposed. See § 925.11(1), Fla. Stat. The trial court
ordered the DNA testing the defendant requested, the testing was
conducted, and the results were provided.
The lab’s certificate of analysis said the following as its
“results/conclusion”:
These [extracted] items were combined into a single sample for DNA analysis. The DNA profile obtained from this sample indicates at least one male contributor. Due to the limited nature of the DNA calls obtained from this sample, it is not suitable for genealogical comparisons or phenotype and ancestry estimations.
The report attached pages of data purporting to show how that
testing was conducted. This is all that section 925.11 requires.
See § 925.11(2)(i), Fla. Stat. (“The results of the DNA testing ordered
by the court shall be provided to the court, the sentenced
defendant, and the prosecuting authority.”). There is no statutory
provision that authorizes follow-up discovery once the results are
provided or that provides for continued proceedings to challenge the
- 22 - integrity or accuracy of the testing or the results. 17 Simply put,
even this independent statutory proceeding, filed in the closed
criminal case, is over.
17. The defendant nevertheless gets away with using as a red herring the Florida Department of Law Enforcement (“FDLE”) analyst’s characterization about the results and her lack of qualification to offer an opinion about those results’ being inconclusive. The FDLE analyst could not offer an opinion at a hypothetical new trial because she did not conduct the testing, so her comments do not matter. The information being commented on would be inadmissible hearsay. Cf. Linn v. Fossum, 946 So. 2d 1032, 1038–39 (Fla. 2006); Smith v. Arizona, 602 U.S. 779, 796–98 (2024). Still, the defendant now wants, basically, the “source code” for the testing so that his expert can review and perhaps opine about the reliability of the test results quoted above. The defendant undoubtedly is using the DNA testing process as an impermissible “fishing expedition.” Cf. Hitchcock v. State, 866 So. 2d 23, 27 (Fla. 2004) (“Rule 3.853 is not intended to be a fishing expedition.”).
Simply put, though section 925.11 establishes an independent right of action, the action is disposed of once the testing is ordered and the results provided. It does not create a new “mini-trial” over whether the DNA testing results are probative of the defendant’s guilt or innocence. Any evidentiary hearing instead would occur in a pending rule 3.850 or rule 3.851 proceeding. By contrast, the only purpose of the testing under the statute is to produce results from existing evidence that a defendant contends will definitively exonerate him. See § 925.11(1), Fla. Stat. Exonerating results presumably would be clear and unambiguous, and they would easily support a prompt vacatur of the judgment upon proper post- conviction motion or habeas petition. That is not what the defendant here is seeking.
The defendant wants data he can feed to an expert he would hire to testify about the testing. But there are clear limits to what
- 23 - This court’s mandate affirming the trial court’s “judgment
imposing the death penalty” made that judgment absolutely final in
1990, upon which the trial court lost jurisdiction forever—save for
consideration of an authorized collateral attack. The trial court
summarily denied the post-warrant collateral attack as one that
such a “bioinformaticist” could testify to that would be probative of the defendant’s actual innocence—given that the proposed expert is not the one who conducted the DNA testing, either. The defendant then is not looking for admissible, clearly exonerating evidence; he is seeking evidence to impeach an expert (the lab analyst who did conduct the test) who, at best, could testify only why the results do not conclusively inculpate him. Any such impeachment evidence could not give rise to doubt about the legality of the judgment imposing the death penalty, which is what a new rule 3.851 motion would have to be based on at this point.
The majority’s reliance on Brim v. State, 695 So. 2d 268, 271 (Fla. 1997), for its approach is misplaced. That decision addressed the application of the now-defunct Frye standard to DNA testing. See Murray v. State, 692 So. 2d 157, 161 (Fla. 1997) (noting that in Brim, “we reaffirmed our adherence to the Frye test for the admissibility of DNA evidence, and clarified that each stage of the DNA process, i.e., the methodology for determining DNA profiles, as well as the statistical calculations used to report the test results— both of which are at issue in the instant case—are subject to the Frye test”). With this court’s amendment to Florida Rule of Evidence 90.704, “[f]acts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” In re Amends. to Fla. Evidence Code, 278 So. 3d 551, 552 n.4 (Fla. 2019).
- 24 - was time-barred—that is, as one not authorized by this court’s
rules. Indeed, as the defendant admitted during a hearing under
rule 3.851(f)(5)(B), his last-minute, post-warrant collateral attack
under the rule lacked any exonerating DNA test results constituting
newly discovered evidence that would except him from the time
bar.18
The requests the court now purports to address were made
even though there was no pending collateral attack on the judgment
imposing the death penalty. It is quite clear, then, that the order on
review does not impose the death penalty, and it does not reject an
attack on the judgment that originally did.19 Jurisdiction to review
this order can find no textual support in our constitution.
18. The majority correctly notes that there is no dispute this court has jurisdiction in case numbers 2026-0449 and 2026-0450. The former involves the final order summarily denying the defendant’s last rule 3.851 motion. The latter is the defendant’s habeas petition. Our jurisdiction, however, is not free-form; it is tied to the order to be reviewed or the writ being sought. The jurisdiction we have in those two cases cannot support manufacturing jurisdiction over the order in this case, an order produced in a separate proceeding that could have no direct effect on the merits under consideration in case numbers 2026-0449 and 2026-0450.
19. Notably, the defendant still has not attempted to file a new motion under rule 3.851, claiming his actual innocence and
- 25 - II
The majority’s response to the clear conflict described above is
to rely primarily on the court’s “longstanding precedent” that claims
exclusive review authority over “all types of collateral proceedings in
death penalty cases.” State v. Fourth Dist. Ct. of Appeal, 697 So. 2d
70, 71 (Fla. 1997) (emphasis supplied). By “collateral proceedings,”
the court in Fourth District seems to have been referencing matters
beyond just post-conviction challenges to a judgment imposing the
death penalty. Before and since, the court has routinely expanded
its authority based on its own apparent, non-textual view that it
has perpetual authority over the case in which the death penalty
was imposed, even if the judgment itself has become final and not
relying on the results of the DNA test. Cf. Everett v. State, 377 So. 3d 1123, 1126 (Fla. 2024) (taking the defendant to task for alleging that the DNA testing “could result in an acquittal” rather than explaining that the testing “will exonerate” him); Hitchcock, 866 So. 2d at 27–28 (criticizing the defendant for failing to meet his burden to explain “how” the testing will exonerate him). The defendant already has received all that the statute guarantees to him: the testing of a sample, and the results of that sample. It did not turn out as he had hoped, obviously—otherwise right now he would be vigorously pursuing a new post-conviction motion, claiming that the results exonerate him.
- 26 - subject to further attack. 20 Having taken more of a “might makes
right” approach starting in the 1990s and continuing through
present day, this court never has engaged in a textual analysis to
support this otherwise raw exercise of power—routinely citing only
to past practice instead. See, e.g., Fourth Dist., 697 So. 2d at 71
(citing two decisions from the 1990s for support, even though the
court in both instances simply took jurisdiction, without any
textual consideration); Trepal v. State, 754 So. 2d 702, 705–06 (Fla.
2000) (noting that the court has “been less than precise in defining
our authority to” review interlocutory orders “in cases involving
death-sentenced defendants”; quoting the constitutional provision
giving jurisdiction to review a judgment “imposing the death
penalty”; then string-citing cases in which the court previously
20. As I previously explained, “[a]bsent an attack on the judgment and death sentence previously affirmed, this court’s appellate jurisdiction under section 3(b)(1) is not implicated in any way,” and an active warrant does not “give us extraordinary appellate review powers.” Willacy, 2026 WL 1021168, at *10–11 (Tanenbaum, J., concurring in part and dissenting in part). At the same time, contrary to the majority’s characterization, I do not question our writ authority, under Article V, section 3(b)(7), to address urgent interlocutory matters, provided there is an independent basis for our appellate jurisdiction—like a pending rule 3.851 proceeding. Id. Here, we do not have jurisdiction because that appellate jurisdictional hook is missing.
- 27 - “review[ed] interlocutory discovery orders in capital collateral
proceedings . . . although absent an express statement of how the
Court determines whether to exercise its jurisdiction”).
Though the majority continues this primary reliance on past
practice for authority, it does cite four provisions purportedly
supporting its jurisdictional claim. First, it cites Article V, section
3(b)(1) of the Florida Constitution, but as explained above, the plain
text does not support that claim. Once again, textual treatment of
the phrase “judgment imposing the death penalty” demonstrating
how the court could have jurisdiction over a mere discovery order,
is not on offer. Second, it cites section 925.11(3), which simply
restates the constitutional proposition under Article V, section
4(b)(1)—that a trial court’s order granting or denying the petition is
appealable by the adversely affected party. 21 The statute does not
21. The Legislature created a separate right of action to have DNA testing ordered. § 925.11(1), Fla. Stat. (“Petition for Examination”). The defendant moved for a DNA test under the statute and Florida Rule of Criminal Procedure 3.853, and that motion was granted. That grant of relief presumably was a final order that would be appealable as such to the district court having geographical jurisdiction. He did not appeal the order with a claim that he was “adversely affected,” so that matter is final and
- 28 - specify that, in a “death case,” the appeal must go to this court; it
merely states that an appeal “may be taken,” presumably from the
final order granting or denying the petition. § 925.11(3)(a), Fla.
Stat. Even if it did state that in a death case, the appeal would go
to this court, that likely would be an unconstitutional expansion of
this court’s constitutionally prescribed jurisdiction, as suggested
earlier. Third, the majority cites Florida Rule of Criminal Procedure
3.853 and Florida Rule of Appellate Procedure 9.140(b)(1)(D).
Neither rule specifies that an appeal could or must be taken to the
supreme court, and this court cannot expand its own constitutional
jurisdiction—a substantive matter—by procedural rule. 22
It has been said that “death is different.” Fitzpatrick v. State,
527 So. 2d 809, 811 (Fla. 1988); Yacob v. State, 136 So. 3d 539,
546 (Fla. 2014) (quoting Fitzpatrick); cf. Furman v. Georgia, 408 U.S.
absolute. At all events, the order for a DNA test itself has no effect on the “judgment imposing the death penalty.”
22. The Florida Constitution gives this court authority to define jurisdiction by rule only with respect to a district court of appeal’s authority to review specified non-final orders. See Art. V, § 4(b)(1), Fla. Const. (providing that a district court of appeal “may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court”).
- 29 - 238, 306 (1972) (Stewart, J., concurring) (observing that the
“penalty of death differs from all other forms of criminal
punishment, not in degree but in kind”). True though this may be,
an active death warrant does not excuse a departure from our
supposed “commitment to the supremacy-of-text principle”—our
“recogni[tion] that the words of a governing text are of paramount
concern, and what they convey, in their context, is what the text
means.” Planned Parenthood of Sw. & Cent. Fla. v. State, 384 So.
3d 67, 77 (Fla. 2024) (internal quotations and brackets omitted). If
it is true that “we give the words of the constitution their plain,
usual, ordinary, and commonly accepted meanings at the time they
were written,” City of Tallahassee v. Fla. Police Benevolent Ass’n,
Inc., 375 So. 3d 178, 183 (Fla. 2023), we should do so consistently,
all the time.
A “longstanding precedent” that demonstrably deviates from
the clear text is not immune from reconsideration, regardless of the
context and regardless of whether anyone has asked for that
reconsideration. Cf. Gamble v. United States, 587 U.S. 678, 724–25
(2019) (Thomas, J., concurring) (“The true irony of our modern stare
decisis doctrine lies in the fact that proponents of stare decisis tend
- 30 - to invoke it most fervently when the precedent at issue is least
defensible.”). We must continuously police our own jurisdictional
boundaries; no one can do it for us. Ensuring that we act only
within constitutional constraints is an ongoing exercise in self-
discipline. Doing so is the true demonstration of judicial restraint.
Our duty always is to apply the law as written. As this court
has said:
In a case where we are bound by a higher legal authority— whether it be a constitutional provision, a statute, or a decision of the Supreme Court—our job is to apply that law correctly to the case before us. When we are convinced that a precedent clearly conflicts with the law we are sworn to uphold, precedent normally must yield.
State v. Poole, 297 So. 3d 487, 507 (Fla. 2020); see id. (noting that
“reliance interests are lowest in cases . . . involving procedural and
evidentiary rules” (internal quotations omitted)); see also Franchise
Tax Bd. of Cal. v. Hyatt, 587 U.S. 230, 248 (2019) (noting that stare
decisis “is at its weakest when we interpret the Constitution
because our interpretation can be altered only by constitutional
amendment” (internal quotations omitted)).
In the end, the defendant is gaming the process set out in
- 31 - section 925.11 to delay execution of his sentence, which he has yet
to demonstrate is unlawful, despite his having had decades to do
so. His effort, misguided as it is, should have taken place in the
context of a pending rule 3.851 motion, where he would bear the
burden of showing “how” the new information “will” exonerate him.
Hitchcock v. State, 866 So. 2d 23, 27–28 (Fla. 2004); Reynolds v.
State, 373 So. 3d 1124, 1126–27 (Fla. 2023). Instead, he is being
permitted to circumvent this burden and obtain further delay, using
the pending death warrant to manufacture urgency—regarding a
closed trial-court proceeding—where none exists. Cf. Reynolds, 373
So. 3d at 1127 & n.6 (noting the defendant’s failure to pursue DNA
testing on certain items in an earlier motion “despite [his] being
aware of the[] existence” of items to be tested and the availability of
DNA testing methods); Arango v. State, 437 So. 2d 1099, 1104 (Fla.
1983) (criticizing “the all too frequent and questionable practice of
waiting until the eleventh hour to raise or prosecute issues which
could have and should have been raised months or years before”);
Evans v. Bennett, 440 U.S. 1301, 1307 (1979) (Rehnquist, J., in
chambers) (criticizing how, in a death warrant context, “‘hydraulic
pressure’ [can be] brought to bear upon any judge or group of
- 32 - judges [that] inclines them to grant last-minute stays in matters of
this sort just because no mortal can be totally satisfied that within
the extremely short period of time allowed by such a late filing he
has fully grasped the contentions of the parties and correctly
resolved them”).
There is no constitutional basis for our intervention in this
matter, and the pending death warrant by itself cannot supply it.
No textual defense of this court’s exercise of jurisdiction in cases
like this one has ever been offered, not before and not today. None
exists. Our previous exercises of jurisdiction, and the one in this
case, have been demonstrated here to be wrong—expressly contrary
to the plain jurisdictional statements in the Florida Constitution.
The defendant has had his “day in court”—many days, in fact.
Over the decades, this court has rejected his legal challenges to his
conviction and sentence of death. Continuing Justice Rehnquist’s
point from before:
There must come a time, even when so irreversible a penalty as that of death has been imposed upon a particular defendant, when the legal issues in the case have been sufficiently litigated and relitigated that the law must be allowed to run its course. If [our holdings] are to be anything but dead letters, capital punishment when imposed pursuant to the standards laid down in
- 33 - those cases is constitutional; and when the standards expounded in those cases and in subsequent decisions of this Court bearing on those procedures have been complied with, the State is entitled to carry out the death sentence. Indeed, just as the rule of law entitles a criminal defendant to be surrounded with all the protections which do surround him under our system prior to conviction and during trial and appellate review, the other side of that coin is that when the State has taken all the steps required by that rule of law, its will, as represented by the legislature which authorized the imposition of the death sentence, and the state courts which imposed it and upheld it, should be carried out.
Evans, 440 U.S. at 1303.
The appeal should be dismissed for lack of jurisdiction.
An Appeal from the Circuit Court in and for Lake County, Brian Welke, Judge Case No. 351987CF001347AXXXXX
Suzanne Keffer, Capital Collateral Regional Counsel, Brittney Lacy, Assistant Capital Collateral Regional Counsel, Mary Elizabeth Wells, Special Assistant Capital Collateral Regional Counsel, and Courtney M. Hammer, Staff Attorney, Southern Region, Fort Lauderdale, Florida,
for Appellant
James Uthmeier, Attorney General, Tallahassee, Florida, Charmaine Millsaps, Special Counsel, Assistant Attorney General, Tallahassee, Florida, Naomi Nichols, Senior Assistant Attorney General, Daytona Beach, Florida, and Nicole Rochelle Smith, Senior Assistant Attorney General, Tampa, Florida,
for Appellee
- 34 -