SC07-2175 – Robert Consalvo v. State of Florida

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State: Florida

Court: Supreme Court

Docket No: sc07-2175

Case Date: 01/29/2009

Plaintiff: SC07-2175 – Robert Consalvo

Defendant: State of Florida

Preview:Supreme Court of Florida
No. SC07-2175
ROBERT CONSALVO,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[January 29, 2009]
PER CURIAM.
This case is before the Court on appeal from an order denying a motion for
DNA testing under Florida Rule of Criminal Procedure 3.853.  Because the order
concerns postconviction relief from a capital conviction for which a sentence of
death was imposed, this Court has jurisdiction of the appeal under article V,
section 3(b)(1), Florida Constitution.
Proceedings to Date
The facts of this case have been set out in our previous opinions in Consalvo
v. State, 697 So. 2d 805 (Fla. 1996), and Consalvo v. State, 937 So. 2d 555 (Fla.

2006).   We have previously characterized the proof of Consalvo’s guilt as
“overwhelming.”  See, e.g., Consalvo, 697 So. 2d at 816.
On September 13, 2001, prior to the enactment of section 925.11, Florida
Statutes (2008), and Florida Rule of Criminal Procedure 3.853, prescribing
procedures and conditions for securing DNA testing in criminal cases, Consalvo
filed a motion to release crime scene evidence to conduct expert lab and DNA
testing.  On March 7, 2002, the trial court issued an order granting Consalvo leave
to test evidence “with the provision that all evidence must be analyzed and tested
under controlled conditions as established by the Broward Sheriff’s laboratory; and
provided that any testing be conducted with representatives of the State and of the
Defendant present.” 1   The BSO lab issued its report on January 13, 2004.  The lab
reported “possible hairs lacking a root   . . . are not suitable for STR (DNA) testing,
but may be suitable for mitochondrial DNA examination.  This laboratory does not
do mitochondrial DNA analysis.”
Subsequently, Consalvo filed a second motion to release crime scene
evidence to conduct mitochondrial DNA testing.  Thereafter, on October 18, 2007,
the trial court issued its order denying Consalvo’s motion to release crime scene
evidence for mtDNA testing, stating the motion “does not satisfy the pleading
1.   On January 9, 2003, the trial court amended its order removing the
witness requirement and requiring Consalvo to provide an oral buccal swab and for
the Broward Sheriff’s Office (BSO) lab to conduct the testing.
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requirements of rule 3.853 in that it is not under oath, nor does the motion
demonstrate how the DNA testing will exonerate defendant or mitigate his
sentence.”  Consalvo appeals this order, alleging that the requirements of rule
3.853 should not apply to his second motion.
ANALYSIS
This issue involves a pure question of law and thus is subject to de novo
review.   See State v. Glatzmayer, 789 So. 2d 297, 301 n.7 (Fla. 2001) (“If the
ruling consists of a pure question of law, the ruling is subject to de novo review.”).
We reject Consalvo’s claim that because his first motion was filed before
enactment of the rule, his later motion should be exempted from the rule’s
requirements.  We agree with the trial court that, on its face, Consalvo’s motion is
insufficiently pleaded under rule 3.853.   Further, we do not find persuasive
Consalvo’s argument that rule 3.853 should not apply to his motion although the
motion was filed and considered well after the enactment of section 925.11 and the
rule.  While we agree that the standards for granting DNA testing vested broader
discretion in the trial court prior to the enactment of the statute and rule, we have
consistently upheld application of the statute and rule to motions decided after their
enactment.
Further, since the inception of rule 3.853, “[c]ases addressing this issue have
uniformly held that DNA testing will not be permitted if the requested DNA testing
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would shed no light on the defendant’s guilt or innocence.”   Huffman v. State, 837
So. 2d 1147, 1149 (Fla. 2d DCA 2003) (quoting Zollman v. State, 820 So. 2d
1059, 1063 (Fla. 2d DCA 2002)).  As in Galloway v. State, 802 So. 2d 1173 (Fla.
1st DCA 2001), and in the face of a record demonstrating “overwhelming”
evidence of his guilt, Consalvo has not even attempted to demonstrate how further
testing would exonerate him.
Rule 3.853 delineates the procedures for obtaining DNA testing under
section 925.11, and states that a petition for postconviction DNA testing must
include, among other things, “a statement that the movant is innocent and how the
DNA testing requested by the motion will exonerate the movant of the crime for
which the movant was sentenced, or a statement how the DNA testing will mitigate
the sentence received by the movant for that crime.”  Fla. R. Crim. P. 3.853(b)(3).
We have previously explained that “[r]ule 3.853 is not intended to be a fishing
expedition.”   Hitchcock v. State, 866 So. 2d 23, 27 (Fla. 2004).  Rather, “[i]t 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.”   Robinson v. State, 865 So.
2d 1259, 1265 (Fla. 2004) (citing Hitchcock, 866 So. 2d 23).  Additionally, the
defendant’s burden is to show a demonstrable “nexus between the potential results
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of DNA testing on each piece of evidence and the issues in the case.”   Hitchcock,
866 So. 2d at 27.
The trial court concluded that Consalvo’s motion did not meet the
requirements of rule 3.853, but additionally found, “[E]even if this Court were to
find that the motion did satisfy the requirement of rule 3.853, defendant has failed
to show a reasonable probability that he would have been acquitted or would have
received a lesser sentence if the DNA evidence had been admitted at trial.”  We
find no error in the trial court’s conclusions.
Accordingly, for the foregoing reasons, we find the trial court properly
denied Consalvo’s motion and we affirm that order.
It is so ordered.
QUINCE, C.J., WELLS, PARIENTE, LEWIS, CANADY, and POLSTON, JJ.,
and ANSTEAD, Senior Justice, concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Broward County,
Howard m. Zeidwig, Judge - Case No. 91-19140-CF10A
Ira W. Still, III, Coral Springs, Florida,
for Appellant
Bill McCollum, Attorney General, Tallahassee, Florida, and Leslie T. Campbell,
Assistant Attorney General, West Palm Beach, Florida,
for Appellee
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