Whittington v. State

District Court of Appeal of Florida

Whittington v. State

958 So. 2d 452, 2007 Fla. App. LEXIS 6787, 2007 WL 1296348

CourtDistrict Court of Appeal of Florida

DecidedMay 4, 2007

DocketNo. 2D06-4760

StatusPublished

This text of 958 So. 2d 452 (Whittington v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Whittington v. State, 958 So. 2d 452, 2007 Fla. App. LEXIS 6787, 2007 WL 1296348 (Fla. Ct. App. 2007).

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Opinion

LaROSE, Judge.

Randy J. Whittington appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We reverse and remand for further proceedings.

In 1985, a jury convicted Mr. Whitting-ton of capital sexual battery. In his motion, Mr. Whittington sought DNA testing of several items allegedly collected by law enforcement officials during the crime investigation. The postconviction court denied the motion, concluding that at the time of Mr. Whittington’s arrest the items were not available and, therefore, were unavailable for testing now.

The postconviction court did not require a response from the State and did not attach to its order any documentation supporting its finding that the items to be tested do not exist. See Borland v. State, 848 So.2d 1288 (Fla. 2d DCA 2003). Consequently, we reverse and remand for further proceedings consistent with this opinion. See id. at 1290.

Reversed and remanded.

ALTENBERND and SALCINES, JJ., Concur.

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