
    AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.853(d)(1)(A) (POSTCONVICTION DNA TESTING). Dean C. Wilson, et al., Petitioner(s), v. State of Florida, Respondent(s).
    Nos. SC03-1630, SC03-1654.
    Supreme Court of Florida.
    Sept. 30, 2003.
   This matter is before the Court on the emergency petition filed by the Criminal Procedure Rules Committee of The Florida Bar to amend Florida Rule of Criminal Procedure 3.853, entitled “Motion for Post-conviction DNA Testing,” a matter within the exclusive rulemaking jurisdiction of this Court. See art. V, § 2(a), Fla. Const. (“The supreme court shall adopt rules for the practice and procedure in all courts.... ”). This matter is also before the Court on the emergency petition filed by petitioners to invoke this Court’s mandamus and all writs jurisdiction, matters within this Court’s original writ jurisdiction. See art. V, § 3(b)(7)-(8), Fla. Const. (“The supreme court: ... May issue ... all writs necessary to the complete exercise of its jurisdiction ... [and][m]ay issue writs of mandamus.... ”). See also Allen v. Butterworth, 756 So.2d 52, 55 (Fla.2000).

Because both petitions relate to the same subject matter, the Court has consolidated both cases for consideration. Also, because of the urgency of these matters, the Court expedites oral argument and sets oral argument in these consolidated cases for 8:30 a.m., Friday, November 7, 2003. A maximum of twenty (20) minutes to the side, as consolidated, is allowed for the argument.

To allow this Court an opportunity to fully consider the petitions, the deadline of October 1, 2003, set forth in rule 3.853(d)(1)(A), is hereby suspended until further order of this Court. Further, as petitioners point out, operation of the same deadline in section 925.11(l)(b)l., Florida Statutes (2002), may result in the non-preservation of physical evidence for DNA testing under section 925.11(4)(b). Because such a result would render these proceedings moot and in effect preclude this Court, should it determine it has jurisdiction, from the “complete exercise” thereof, the deadline in section 925.11(l)(b)l. is hereby held in abeyance while this Court considers its jurisdiction and other matters before it. See art. V, § 3(b)(7), Fla. Const. By our actions herein, we express no opinion on the merits of the underlying petitions. Accordingly, by operation of the terms of the statute, the evidence described in section 925.11(4)(a) “shall be maintained for at least the period of time” controlled by the abeyance. No other provision of the rule or statute is affected by this order.

The Court seeks comments in case number SC03-1630 from any and all interested parties regarding the proposed petition including, but not limited to, the following entities:

(1) The Attorney General
(2) The Solicitor General
(3) Criminal Court Steering Committee
(4) The Florida Department of Law Enforcement
(5) Capital Collateral Regional Counsel — Middle District
(6) Capital Collateral Regional Counsel — Southern District
(7) Florida Prosecuting Attorneys Association
(8) Florida Public Defender Association, Inc.

The Court requests that comments from the aforementioned entities be filed no later than October 17, 2003. The chair of the Criminal Procedure Rules Committee shall file a response to all comments no later than October 29, 2003. An original and nine (9) copies of all comments and the response must be filed with the Court with a certificate of service verifying that a copy has been served on the committee chair, Circuit Judge Olin Wilson Shinhol-ser, P.O. Box 9000, Drawer J118, Bartow, Florida, 33831-9000, and the proponent of the rule change, Ivy R. Ginsberg, 1 NE 2nd Ave., Ste. 200, Miami, Florida, 33132-2507, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument. All comments must be filed in paper format and in WordPerfect 5.1 (or higher) format on a DOS formatted 3-J/¿ inch diskette.

Each of the aforementioned entities is invited to participate in oral argument. The allocation of the time shall be agreed upon and shared by any interested parties. The parties shall notify the Clerk of Court no later than November 5, 2003, how the time is to be divided. The parties should review the Notice of Setting Oral Argument for details and instructions.

ANSTEAD, C.J., and PARIENTE, LEWIS and QUINCE, JJ., concur.

LEWIS, J., concurs specially with an opinion, in which, ANSTEAD, C.J., and PARIENTE, and QUINCE, JJ., concur.

WELLS, J., dissents with an opinion, in which, CANTERO and BELL, JJ., concur.

LEWIS, J.,

specially concurring.

Despite the sound and fury emanating from the dissenting opinion, I suggest that our constitutional authority and responsibility to undertake the action contemplated in today’s order is patently clear. The Court has before it a writ petition challenging the constitutional validity of the October 1, 2003 deadline for filing motions for postconviction DNA testing provided in section 925.11(l)(b) of the Florida Statutes. The petitioners have requested that this Court issue a writ declaring that provision unconstitutional either on its face or as applied. This certainly impacts not only the administration of our criminal justice system but also cases involving capital punishment, a subject within the exclusive jurisdiction of this Court.

There is no question that the Florida Constitution grants this Court jurisdiction to consider issuance of the writ requested. See art. V, § 3(b)(8), Fla. Const, (providing that this Court may issue “writs of mandamus”). Indeed, this Court has held on a multitude of occasions in a wide range of contexts that mandamus is appropriate where government functions will be adversely affected without an immediate determination by this Court. See, e.g., Allen v. Butterworth, 756 So.2d 52, 55 (Fla.2000); Moreau v. Lewis, 648 So.2d 124, 126 (Fla.1995); Div. of Bond Finance v. Smothers, 337 So.2d 805, 807 (Fla.1976); Dickinson v. Stone, 251 So.2d 268, 271 (Fla.1971).

However, the reality of the instant situation is that if this action were not taken, any determination made by this Court after October 1, 2003, regarding the propriety of exercising jurisdiction over the instant matter or the substantive constitutionality of the challenged provision would be rendered totally moot. The statutory deadline may have operated to produce a time bar against any subsequently filed motions for DNA testing, and, indeed, may have even permitted the destruction of the DNA evidence at issue. Thus, under the circumstances presented, the Court has properly exercised the constitutional grant of authority to issue “all writs necessary to complete exercise of its jurisdiction” in a reasonable, rational, and responsible manner, see art. V, § 8(b)(7), Fla. Const., to hold operation of the statutory deadline in abeyance and to maintain the existence and integrity of the DNA evidence until such time as we may render a decision on the petition before us. See Petit v. Adams, 211 So.2d 565, 566 (Fla.1968) (utilizing “all writs” authority to prevent the erasure of voting results and determining that “[t]he erasure of such counters would render these proceedings moot and would in effect prevent this Court, in the event it determines it has jurisdiction, from the complete exercise thereof’). The separation of powers between the judiciary and the legislative branch is not impacted by the decision to suspend operation of the statutory deadline during consideration of a challenge to its constitutional validity, especially to a statute that relates to post-conviction motions in all death cases and all criminal cases. See Cone v. King, 143 Fla. 323, 196 So. 697, 698 (1940).

Even should this Court later determine that it does not have a jurisdictional basis to reach the merits of the instant petition, we certainly then would have the constitutional authority to transfer the matter to the appropriate court. See art. V, § 2(a), Fla. Const. In any case, it would be most appropriate to hold the statutory deadline in abeyance until the matters now before us are thoroughly vetted. We consider not trivial issues, but matters that may impact literally the life or death of human beings and concern the rights to liberty guaranteed in the Constitution.

I would further note that this Court has exclusive constitutional authority to issue and amend the rules governing the practice and procedure before the courts of this state, which would, most assuredly, include the subject deadline for filing post-conviction motions for DNA testing under rule 3.853 of the Florida Rules of Criminal Procedure. See art. V, § 2(a), Fla. Const. Our authority to determine whether the constitutional issues presented in the instant petition merit an amendment to rule 3.853 would be completely usurped if the statutory deadline were simply allowed to pass and law enforcement agencies were authorized to destroy DNA evidence after October 1, 2003.

The alternative path, the path subscribed to by the dissent, would render ineffectual this Court’s deliberations regarding the propriety of exercising jurisdiction in the instant matter, as well as any subsequent decision on the merits of the matters before us. Incarcerated individuals would be time-barred from requesting DNA testing, regardless of whether this Court determines that the statutory deadline violates important constitutional rights. Indeed, under the dissent’s view of this Court’s jurisdiction we would be powerless to amend our own rules pertaining to such postconviction proceedings. The rigid construction favored by the dissenting view would render this Court powerless to realize the full scope of its constitutional jurisdiction and concomitant responsibility. This Court’s constitutional position would be undermined and compromised if the status quo could not be maintained as the issues of constitutional magnitude now presented are considered. I suggest that the outcome advanced in the dissenting opinion is neither required by the Constitution of this state nor supported by any principle of sound logic and manifest justice.

ANSTEAD, C.J., and PARIENTE and QUINCE, JJ., concur.

WELLS, J.,

dissenting.

I dissent because this Court does not have jurisdiction to “suspend” a provision of a lawfully enacted statute or to mandate that evidence which is described in the statute be maintained beyond the period the statute specifically states that the evidence is to be maintained. The majority does not state the constitutional basis for this extraordinary power.

The emergency petition filed by the Florida Criminal Procedure Rules Committee for an amendment to the Florida Rules of Criminal Procedure seeks only to amend rule 3.853. The petition does not seek a suspension of the statute, nor does it contend that this Court has the authority to suspend the statute or to mandate anything in respect to it.

The emergency petition to invoke “all writs” jurisdiction filed by the three individuals, the Florida Innocence Project, and the Florida Innocence Initiative does contend that this Court has jurisdiction to enter a “stay to preserve the status quo” based upon this Court’s all-writs jurisdiction set forth in article V, section 3(b)(7) of the Florida Constitution. The petition further contends that the jurisdiction for this petition is based upon this Court’s power to issue a “writ of mandamus Article V, Section 3(b)(7),” citing to Allen v. Butterworth, 756 So.2d 52, 55 (Fla.2000). These petitioners do not contend that this Court can stay the operation of a lawfully enacted statute on the basis of a writ of mandamus. Neither do they cite to any case authority for such a stay. Rather, these petitioners claim that Allen provides authority for this Court to use a writ of mandamus as a vehicle for reaching the constitutionality of the statute.

I cannot agree that “all writs” provides authority for this Court to stay the operation of a statute in an original action filed in this Court. Noticeably absent from article V, section 3(b), enumerating this Court’s powers, is the power to grant a “writ of injunction.” The power to issue injunctions is expressly given to circuit courts by article V, section 20(c)(3), and section 26.012, Florida Statutes (2002).

I recognize that the 1932 decision of Paramount Enterprises, Inc. v. Mitchell, 104 Fla. 407, 140 So. 328, 330 (1932), states that even though this Court did not have original jurisdiction of a writ of injunction, “it is empowered to and may issue injunc-tive or other writs essential to a complete exercise of its jurisdiction.” But I also recognize that in this 1932 case, this Court put strenuous conditions on the exercise of that power. These conditions have clearly not been met or even alleged here. Moreover, and importantly, article V of the Florida Constitution, enumerating judicial authority and each court’s jurisdiction, has been amended with approval of the voters since 1932 and has not included the writ of injunction in the Supreme Court’s jurisdiction. This writ was only included within the jurisdiction of the circuit courts.

Furthermore, “all writs” is not a proper basis for jurisdiction of the individual petitions and the Innocence Project’s original action. All writs is a unique writ only to be used to protect this Court’s otherwise existing jurisdiction. This Court has not allowed all writs to be used as an independent basis for an original action. Besoner v. Crawford, 357 So.2d 414 (Fla.1978). The specific language of article V, section 3(b)(7), supports this Court’s precedent in that it states “all writs necessary to complete exercise of its jurisdiction,” which plainly indicates that the original jurisdiction must be through some other basis.

I likewise do not find a basis for original jurisdiction through mandamus. These petitioners rely upon Allen; however, it must be noted that in that case we said that “ordinarily the initial challenge to the constitutionality of a statute should be made before a trial court.” Allen, 756 So.2d at 54-55. That case was allowed to proceed as an original action only because it involved postconviction proceedings in capital cases over which this Court has unique constitutional jurisdiction. We held that the “functions of government would be adversely affected without an immediate determination” and pointed directly to the “large number of [capital] cases pending in this Court and at various stages in the trial courts throughout the state.” Id. at 55. The procedures which were the basis for jurisdiction in that case notably applied to “pending cases.” That is not true in respect to the present petition, which only seeks to have this Court hold unconstitutional a period of limitation for cases yet to be filed. This case does not involve substantial functions of government but, rather, individual defendants. Additionally, mandamus is not available here because there is no assertion that what is being sought is the enforcement of a clear legal right or the other necessary requirements for a mandamus.

The proper procedure for these petitions is to file actions in the circuit courts to test the constitutionality of section 925.11, Florida Statutes (2002). This is what was contemplated when we adopted the rule. See Amendment to Fla. Rules of Crim. Pro. Creating Rule 3.853 (DNA Testing), 807 So.2d 633 (Fla.2001). A significant part of the problem which is now being presented in this original action is that no action was filed until the middle of September 2008 to avoid an October 1, 2003, deadline.

But rather than look to the courts, these petitioners should attempt to persuade the Legislature to amend its statute. I want to clearly state that I believe that the Legislature did a great service in the furtherance of justice by adopting section 925.11, Florida Statutes. I believe that it is in the interest of justice for the Legislature to seriously consider extending the October 1, 2003, deadline, but this extension is only for the Legislature to consider. Then, if the Legislature does extend the time, it can appropriate the necessary funds for the DNA tests. The lawyers for the defendants need to be authorized and paid by funds appropriated by the Legislature so that relief may then be pursued based upon those tests. Because this Court is assuming power over what has been provided by the Legislature, I am concerned that the carrying out of these tests and paying for these proceedings will be frustrated.

Finally, I dissent from this Court’s suspension of this rule and the statute indefinitely. If this Court is going to assume jurisdiction in this process, I believe all interested parties, including the Legislature, should be advised as to how long they can expect this Court to enjoin the operation of the statute and at the same time require performance by governmental entities in respect to it.

CANTERO and BELL, JJ., concur.  