BLOCK v. STATE (2006)

The trial court summarily denied appellant's rule 3.850 motion, which we affirm without further discussion.   He is also attempting to appeal an order confirming the result of a DNA test he requested, which we conclude is not appealable.

Appellant was convicted of several crimes arising out of a burglary, including aggravated battery, which was based on his stabbing the victim with a knife.   After his conviction was affirmed on appeal, appellant filed a motion under Florida Rule of Criminal Procedure 3.853 seeking DNA testing, based on his contention that the victim was never stabbed with the knife and that a DNA test on the substance on the knife would demonstrate that there was no blood of the victim on the knife.   The trial court denied the motion for DNA testing, but we reversed that order and the DNA testing was then carried out.   The result of the DNA test revealed that the victim's blood was on the knife, and the trial court then issued an order which read:

This Court accepts such undisputed findings, and, based upon the above, Court finds that the mandate of the Fourth District Court of Appeal has been complied with.

The order also notified appellant that he had thirty days in which to appeal the order.

Rule 3.853 authorizes appeals from orders on motions which request DNA testing, providing in rule 3.853(f):

Appeal.   An appeal may be taken by any adversely affected party within 30 days from the date the order on the motion is rendered.   All orders denying relief must include a statement that the movant has the right to appeal within 30 days after the order denying relief is rendered.

The order which appellant is attempting to appeal is not an order described by rule 3.853(f), but rather an order confirming the results of the testing he requested.

Rule 3.853(d)(2) authorizes the filing of a motion for post-conviction relief in the trial court based on the result of court-ordered DNA testing, and provides that such a motion shall be treated as a claim of newly discovered evidence.   There is no provision in rule 3.853, however, or in any other rule, which would authorize an appeal from this order.   We accordingly dismiss the appeal from the order entered after the DNA testing and affirm the denial of appellant's rule 3.850 motion.

KLEIN, J.

STONE and SHAHOOD, JJ., concur.