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A divided Florida Supreme Court on Tuesday indefinitely suspended the Oct. 1 deadline for convicted felons to request DNA tests in hopes of winning exoneration. In a 4-3 decision, the court suspended Rule 3.853 of the Rules of Criminal Procedure and held in abeyance � 923.11 of the Florida Statutes. The court said it was ordering the suspension until it could more fully consider the issue. It set oral argument in the case for Nov. 7. The dissenters, however, argued that the high court was intruding on the authority of the Legislature in suspending a statutory deadline. The court rule and the statute, both enacted in 2001, set an Oct. 1, 2003, deadline for all felons convicted before Oct. 1, 2001, to request DNA tests. The majority said that if the court did not suspend the deadline temporarily, it “may result in the nonpreservation of physical evidence for DNA testing.” In a concurrence, Justice R. Fred Lewis wrote that “the statutory deadline may have operated to produce a time bar against any subsequently filed motions for DNA testing and, indeed, may have even permitted the destruction of the DNA evidence at issue.” The majority consisted of Chief Justice Harry Lee Anstead and Justices Lewis, Peggy A. Quince, and Barbara J. Pariente. In a dissent joined by Justices Raoul G. Cantero III and Kenneth B. Bell, Justice Charles T. Wells argued that the state Supreme Court has no authority to suspend a statutory provision enacted by the Florida Legislature. “This court does not have jurisdiction to ‘suspend’ a provision of a lawfully enacted statute or to mandate that evidence which described in the statute be maintained beyond the period the statute specifically states that the evidence is to be maintained,” Wells wrote. The DNA testing law was established in Florida in the wake of several high-profile DNA exonerations in the state and around the country. Tuesday’s ruling came in response to two emergency petitions filed in September, one by the criminal procedure rules committee of The Florida Bar and the other by the New York City-based Innocence Project. The Bar argued in its petition that the DNA testing deadline should be extended to Oct. 1, 2004, because there is a backlog of nearly 600 cases that have not been fully reviewed in which prisoners claim DNA tests will exonerate them. In its petition, the Innocence Project, a nonprofit legal group headed by criminal defense lawyer Barry Scheck, sought an order preventing law enforcement officials in Florida from destroying any DNA evidence. In its ruling, the court consolidated the two cases. Wells argued in his dissent that it is up to the Legislature, not the Supreme Court, to extend the DNA testing deadline. “I believe that it is in the interest of justice for the Legislature to seriously consider extending the Oct. 1, 2003 deadline, but this extension is only for the Legislature to consider,” he wrote. For one thing, he said, only the Legislature can appropriate the necessary funds for DNA tests. Wells went to say that a motion claiming on constitutional grounds that DNA evidence must not be destroyed should be filed first in a circuit court. In response, Justice Lewis wrote that despite the “rigid construction” in Wells’ dissent, the state Supreme Court had the constitutional authority and responsibility to suspend the deadline. Lewis wrote that the Florida Supreme Court was not breaching the separation of powers between the judiciary and legislative branch in suspending a statutory deadline because the emergency petitions challenged the constitutional validity of the statute. Some legislators say they favor extending the DNA testing deadline. On Sept. 12, state Sen. Alex J. Villalobos, R-Miami, introduced a bill declaring an intention to extend the deadline. He predicted the Legislature will approve the bill. He also indicated that he may push to remove the deadline entirely rather than just extend it. Miami solo lawyer Ivy Ginsburg, who asked the Bar to request the DNA testing extension, said Tuesday’s ruling by the state Supreme Court “is the only way to protect the innocent inmates who may have been wrongfully convicted but who have not had the benefit of counsel to review their case and file a motion on their behalf.”

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