DNA testing and Florida Rule of Criminal Procedure

Florida Case Law

SWAFFORD v. STATE, SC06-242 (Fla. 12-21-2006) ROY CLIFTON
SWAFFORD, Appellant, v. STATE OF FLORIDA, Appellee. Case
No. SC06-242. Supreme Court of Florida. December 21, 2006.

An Appeal from the Circuit Court in and for Volusia County,
R. Michael Hutcheson, Judge — Case No.
83-3425-CFAES.

Neal Dupree, Capital Collateral Regional Counsel, Southern
Region, Terri L. Backhus, Assistant CCRC and Celeste
Bacchi, Staff Attorney, Fort Lauderdale, Florida, for
Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee,
Florida and Barbara C. Davis, Assistant Attorney General,
Daytona Beach, Florida, for Appellee.

PER CURIAM.

This case is before the Court on appeal from a circuit
court order following DNA testing under Florida Rule of
Criminal Procedure 3.853. This Court has jurisdiction of
the appeal under article V, section 3(b)(1), Florida
Constitution.

Roy Clifton Swafford was convicted of first-degree murder
and sexual battery and sentenced to death. The facts of
this case are set out fully in our opinion affirming the
convictions and death sentence on direct appeal. Swafford
v. State, 533 So. 2d 270, 271 (Fla. 1988). We have since
affirmed the denial of Swafford’s three postconviction
motions and have denied various petitions for writs of
habeas corpus. Swafford v. State, 828 So. 2d 966 (Fla.
2002); Swafford v. State, 636 So. 2d 1309 (Fla. 1994);
Swafford v. Singletary, 584 So. 2d 5 (Fla. 1991); Swafford
v. Dugger, 569 So. 2d 1264 (Fla. 1990).

Swafford filed a fourth motion for postconviction relief,
and he filed a motion for DNA testing pursuant to Florida
Rule of Criminal Procedure 3.203 on October 9, 2002. The
circuit court denied the motion for DNA testing and
dismissed the motion for postconviction relief. Swafford
appealed the two orders separately in Case Nos. SC03-931 and
SC03-1153. On March 26, 2004, we remanded the DNA testing
case to the circuit court for further proceedings, see
Swafford v. State, 870 So. 2d 874 (Fla. 2004) (No.SC03-931)
(table report of unpublished order), in an order stating:

Appellant Roy Clifton Swafford appeals an amended order
denying his motion for DNA testing under Florida Rule of
Criminal Procedure 3.853. We have jurisdiction. See Art.
V, § 3(b)(1), Fla. Const.

The amended order is reversed, and this case is remanded
to the circuit court with directions that the circuit
court hold an evidentiary hearing to determine which
pieces of evidence that appellant moved to have tested are
capable of being tested for DNA. The evidence which the
Court determines to be capable of being tested is to be
tested pursuant to Florida Rule of Criminal Procedure
3.853[c](7). The results of the tests shall be provided in
writing pursuant to rule 3.853[c](8). The circuit court
shall then enter an order making findings as to whether
the evidence which was tested is authentic, has been
contaminated, or such other findings in respect to the
tested evidence as the circuit court determines to be
appropriate.

We reversed the order dismissing the motion for
postconviction relief, remanding for further proceedings
following the trial court’s ruling on the motion for DNA
testing. See Swafford v. State, 871 So. 2d 874 (Fla. 2004)
(No. SC03-1153) (table). Swafford now appeals to this
Court, arguing that the circuit court erred in the
proceedings below. We find that the circuit court has
complied with our order. The circuit court held an
evidentiary hearing on June 11, 2004. At that hearing, the
parties determined which pieces of evidence were to be DNA
tested. That evidence was tested by the Florida Department
of Law Enforcement (FDLE) and MitoTyping Technologies, LLC,
as reflected in various reports filed by those laboratories
from November 2, 2004, through November 18, 2005.

Following that testing, the circuit court entered an order
which stated that it had complied with the directions from
this Court on remand. Swafford v. State, No. 83-3425-BB
(Fla. 7th Cir. Ct. order filed Jan. 25, 2006). We affirm
the circuit court’s order, including its denial of
Swafford’s motions for an additional evidentiary hearing
under rule 3.853 and his motion seeking further DNA testing
by a laboratory not certified as required by rule
3.853(c)(7). This denial is without prejudice to Swafford
presenting DNA issues, including any issues concerning
possible contamination of DNA samples, in further
proceedings under rule 3.851. Swafford is granted sixty
days from the date this opinion is final to amend his rule
3.851 motion to present any DNA issues.

We therefore affirm the circuit court’s order. We also lift
the stay previously granted on March 28, 2006, in this
case.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO,
and BELL, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.