JUSTICE RARICK delivered the opinion of the court:

The defendant, Ricky Joe Franks, was charged in the circuit court of Union Countywith first-degree murder. Franks maintained that he had consensual sex with the victim butdid not kill her. He was convicted on October 1, 1999, following a jury trial. The evidenceat the trial included the results from the forensic testing of swab specimens from the victim'svagina, rectum, and mouth. An analysis of the deoxyribonucleic acid (DNA) extracted fromthe semen found on the vaginal swab matched the DNA sample taken from Franks. TheState did not have the rectal swab tested. Stacey Speith, the forensic expert who performedthe testing, testified that the rectal swab specimen was not tested for several reasons. First,there was more seminal fluid present on the vaginal swab than the rectal swab. Second, theseminal material found on the rectal swab could have been the result of the trickle of semenfrom the victim's vagina. Finally, it was not feasible to test every forensic sample collected,because of the time and expense involved.

On March 29, 2000, Franks filed a motion pursuant to section 116-3 of the Code ofCriminal Procedure of 1963 (Code) (725 ILCS 5/116-3 (West 1998)) seeking forensic DNAtesting of the sample from the rectal swab. In his motion, Franks alleged that identity wasan issue at the trial and that the rectal swab might yield evidence that another person killedthe victim. On April 11, 2000, the trial court denied the motion. The State filed its responseon April 12, 2000.

On appeal, Franks argues that the trial court erred in denying his motion for forensictesting pursuant to section 116-3 of the Code. He maintains that he made his prima faciecase as required by section 116-3 by asserting that the identity of the murderer was at issueat the trial, that the rectal swab was not subject to testing at the time of the trial, and that theevidence to be tested had been subject to a chain of custody sufficient to establish that it hadnot been substituted, tampered with, replaced, or altered in any material respect. Frankscontends that the trial court erred in summarily denying the motion where he had made hisprima facie case and where the State had not yet filed a response.

Section 116-3 of the Code provides:

"(a) A defendant may make a motion before the trial court that entered thejudgment of conviction in his or her case for the performance of fingerprint orforensic DNA testing on evidence that was secured in relation to the trial whichresulted in his or her conviction, but which was not subject to the testing which is nowrequested because the technology for the testing was not available at the time of trial. Reasonable notice of the motion shall be served upon the State.

(b) The defendant must present a prima facie case that:

(1) identity was the issue in the trial which resulted in his or herconviction; and

(2) the evidence to be tested has been subject to a chain of custodysufficient to establish that it has not been substituted, tampered with, replaced,or altered in any material aspect.

(c) The trial court shall allow the testing under reasonable conditions designedto protect the State's interests in the integrity of the evidence and the testing processupon a determination that:

(1) the result of the testing has the scientific potential to produce new,noncumulative evidence materially relevant to the defendant's assertion ofactual innocence; [and]

(2) the testing requested employs a scientific method generally acceptedwithin the relevant scientific community." (Emphasis added.) 725 ILCS5/116-3 (West 1998).

The review of a ruling denying a motion for forensic testing pursuant to section 116-3is de novo. People v. Urioste, 316 Ill. App. 3d 307, 736 N.E.2d 706 (2000).

The clear and unambiguous language of subsection (a) of section 116-3 requires thata defendant show that the evidence in question was not subject to the requested testing atthe time of the trial and that the reason it was not subjected to the requested testing is thatthe technology for such testing was unavailable at the time of the trial. In his motion, Franksalleged that the rectal swab evidence was not subject to testing at the time of the trial and therequested DNA testing, but nowhere does he allege that the technology for such testing wasunavailable at the time of the trial. Thus, Franks' motion is wholly insufficient to satisfy therequirements of section 116-3(a), and the trial court property denied his motion.

Franks relies on People v. Rokita, 316 Ill. App. 3d 292, 736 N.E.2d 205 (2000), forthe proposition that he satisfied the requirements of subsection (a). In Rokita, Rokita'smotion and supporting memorandum referred generally to polymerase chain reaction (PCR)-based testing, but he did not allege that PCR testing was unavailable at the time of the trial. At the hearing on his motion, Rokita indicated that the specific testing method he sought wasa type of PCR testing known as short tandem repeat (STR). He introduced no evidence,however, as to when such testing first became available. The State conceded that at the timeof the trial PCR testing was in its infant stages and that STR-based PCR testing did not exist.

Rokita's failure to allege in his motion that he sought STR-based PCR testing and hisfailure to introduce evidence as to when it became available would have been fatal to hisposition but for the State's concession. This is the crucial distinction between Rokita and thepresent case. In the present case, there is no similar concession by the State. Franks arguesthat the State had not filed its response at the time of the trial court's ruling and that in theface of such "silence," the allegation of his motion must be taken as true. Franks attemptsto equate this "admission" with the State's admission in Rokita. Even if we accept,arguendo, that the State's failure to respond by the time of the trial court's ruling was anadmission of the allegations in his motion, Franks' argument would fail. All that Franksalleged was that the rectal swab was not subject to forensic DNA testing. Thus, the most theState could be said to have admitted is that the rectal swab evidence was not subject totesting at the time of the trial. This is fundamentally different from the admission in Rokitathat the technology for the testing method Rokita sought to utilize did not exist at the timeof the trial. It was this admission that cured Rokita's otherwise fatally defective motion andenabled Rokita to initially satisfy the requirements of subsection (a). (We note thatultimately a defendant must prove at the hearing on his motion that the technology for therequested testing method was not available. In Rokita, the State's concession relieved Rokitaof this burden.) The "admission" in the present case is insufficient to cure Franks' failureto allege that the testing technology he requested was unavailable at the time of the trial, andhis motion therefore fails to satisfy the requirements of subsection (a). We conclude that thetrial court's dismissal of Franks' motion was proper.

For the foregoing reasons, the judgment of the circuit court of Union County isaffirmed.

Affirmed.

CHAPMAN, P.J., and WELCH, J., concur.