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Lawyers from across the state will urge the Florida Supreme Court today to extend the deadline by at least one year to allow an estimated 600 convicted felons to request DNA tests that could prove their innocence. They also will request that the justices issue an order preventing law enforcement agencies throughout the state from destroying any biological evidence that could be used in DNA tests. Two years ago, in the wake of several high-profile DNA exonerations in Florida and around the country, Florida established by statute and court rule a law allowing felons to seek DNA tests. The statute and the court rule gave felons convicted before October 2001 two years to file petitions for DNA tests, setting the deadline at Oct. 1, 2003. In September of this year, the Supreme Court agreed to indefinitely suspend the Oct. 1 deadline until it could rule on today’s arguments. The case poses a tough dilemma for a Supreme Court that has been at odds with Florida Gov. Jeb Bush and the Legislature over who has the constitutional authority to set legal procedural rules. Two years ago, the high court avoided a fight with the Republican-dominated Legislature by bringing its DNA testing rule into line with the law passed by the Legislature. Under Article V, Section 2 of the Florida Constitution, the Supreme Court has the sole authority to enact procedural laws while the Legislature enacts substantive laws. Some legal observers consider the DNA testing issue to be procedural. But other observers say it’s a close legal question whether extending the DNA testing deadline is a procedural or substantive issue. Today, attorneys representing the Florida Bar Criminal Procedure Rules Committee, the Criminal Court Steering Committee, the Florida Public Defenders Association and the Florida Innocence Project will ask the justices to extend the deadline at least to next October. The state is not opposing this request. “The attorney general has no opposition to the court’s exercise of this power,” Assistant Deputy Attorney General Carolyn Snurkowski wrote to the Florida Supreme Court. “The attorney general is committed to the principle that innocent citizens should not be incarcerated. From a law enforcement perspective, having an innocent person incarcerated means a guilty person roams free.” The various bar groups also will request that the state Supreme Court issue an order preventing law enforcement agencies from destroying any biological evidence that could be used in DNA tests. But Florida Attorney General Charlie Crist is opposing any effort to require the state’s law enforcement agencies to preserve biological evidence indefinitely, claiming it would be too burdensome. The Florida Department of Law Enforcement and the Florida Prosecuting Attorneys Association did not respond to the Florida Supreme Court’s request for comment on the deadline extension or preservation of evidence issues. JUSTICES DIVIDED Although all the organizations appearing before the Florida Supreme Court agree that the court has jurisdiction to extend the deadline, it is unclear whether all seven justices will reach the same conclusion. The key issue is whether the court has the jurisdiction to extend a legislatively set deadline. The high court’s decision to indefinitely suspend the deadline was determined by a sharply contested 4-3 vote on Sept. 29. The ruling was in response to emergency petitions filed in September by the criminal procedure rules committee of The Florida Bar and 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 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 Supreme Court consolidated the two cases. The majority ruled that the court had jurisdiction to consider amending Florida Statute 925.11 and Court Rule 3.853 because they involved criminal procedure. The majority, consisting of Chief Justice Harry Lee Anstead and Justices Fred Lewis, Peggy Quince, and Barbara Pariente, said that if the court did not suspend the deadline temporarily, it “may result in the nonpreservation of physical evidence for DNA testing.” But in a dissent joined by Justices Raoul Cantero III and Kenneth Bell, Justice Charles Wells argued that the Supreme Court has no authority to suspend a statutory provision enacted by the Legislature. In September, Sen. Alex Villalobos, R-Miami, introduced a bill declaring an intention to extend the deadline or remove it completely. The bill is still in committee. Villalobos could not be reached for comment. PRECEDENT FOR EXTENSION Those now arguing in favor of the extension claim that the Florida Supreme Court has the authority to amend the rule and statute under its May 2000 decision in Allen v. Butterworth. In that decision, the high court unanimously overturned the 2000 Death Penalty Reform Act, which shortened the time allowed for filing a post-conviction habeas corpus petition in capital cases. In Allen, that state Supreme Court ruled that the act was unconstitutional because it interfered with the judiciary’s exclusive power to adopt rules of court procedure, which included setting deadlines for post-conviction motions. Opponents of the deadline imposed by Florida Statute 925.11 claim it is unconstitutional for the same reason. “Since setting time limits for post-conviction claims is solely within the province of this court, it follows that orders regarding the expiration of those limits are also exclusively within its province,” Miami lawyer Craig Trocino wrote on behalf of the Innocence Project. But in his Sept. 29 dissent, Justice Wells noted a significant distinction between the DNA testing case and the high court’s decision in Allen. In Allen, all of the cases involved death penalty defendants, “over which this court has unique constitutional jurisdiction,” whereas the inmates affected by the DNA testing law are not, Wells wrote. OVERBURDENED The Florida Innocence Project, based at the Nova Southeastern University and Florida State University law schools, has been screening noncapital cases for possible DNA exoneration since 1999. It is associated with the national Innocence Project. Since its inception, the Florida Innocence Project has reviewed 400 cases for possible DNA testing. Of those, the Innocence Project has identified 90 cases in which the inmate could be exonerated by DNA evidence. Three people have been released from Florida prisons since 2001 as the result of such testing. The Innocence Project contends that it has been unable to review all the letters it has received from inmates requesting DNA testing because it is underfunded and relies largely on pro bono lawyers and law students. The project told the Florida Supreme Court that it is assisting only those people convicted of noncapital felonies, such as rape and second-degree murder. The rationale is that those who have received capital convictions have court-appointed counsel to assist with post-conviction motions, while noncapital defendants may not have seen a lawyer for many years. Some advocates of extending the testing deadline argue that a one-year extension would not be enough. They call for suspending the deadline indefinitely because of the evolving science of DNA testing. “If DNA evidence can exonerate a person, the justice system must not close the door,” Nancy Daniels and John E. Morrison wrote on behalf of the Florida Public Defenders Association. “It is never too late to free an innocent person.”

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