FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D19-565
_____________________________
SHURON HESTER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Lester Bernard Bass, Judge.
August 29, 2019
B.L. THOMAS, J.
Appellant challenges the trial court’s denial of his motion for
postconviction DNA testing filed under Florida Rule of Criminal
Procedure 3.835. Because Appellant’s claims do not establish a
reasonable probability that he would be acquitted at trial, we
affirm.
In 2013, a jury found Appellant guilty of sexual battery on a
victim less than twelve years of age and lewd or lascivious
molestation of a person less than eighteen years of age. At trial,
the victim testified that when she was ten years old, Appellant, her
stepfather, entered her bedroom at night and touched her vagina
with his hands and penis. She testified that Appellant hit her on
the thigh with a belt or cord, from which she still had a mark. She
also testified that Appellant would threaten to beat her if she
reported the crimes.
The court sentenced Appellant to life in prison for the sexual
battery count and to a consecutive fifty-year sentence for the lewd
and lascivious molestation count. After his conviction, Appellant
filed pro se motions to withdraw plea, correct sentence, mitigate
sentence, and for postconviction relief alleging ineffective
assistance of counsel, all of which were denied.
In 2018, Appellant filed the instant motion for DNA testing.
In his motion, Appellant raised three claims that the
postconviction court properly denied as successive. He also
requested the DNA testing of “[a]ll items the JSO collected; (i.e.
bed sheets, underwear, clothes) any form, of items that can be
tested to clear my name.” Appellant made only vague references
as to how DNA testing related to his case.
Rule 3.853 requires the movant to “lay out with specificity how
the DNA testing of each item requested to be tested would give rise
to a reasonable probability of acquittal or a lesser sentence.”
Hitchcock v. State,
866 So. 2d 23, 27 (Fla. 2004). Appellant did not
explain with specificity, or indeed at all, how DNA testing of the
named items would create a reasonable probability of his acquittal.
He stated that “there could have been a presence or non-presence
of bodily fluids on the sheets or underwear,” but did not assert
whether these fluids belonged to him or some other party. Further,
he made no assertion as to how the “presence or non-presence” of
such fluids would lead to his acquittal but stated only that testing
“could” show the jury that the fluids “could” be present or not
present. Because Appellant failed to establish how DNA testing
would create a reasonable probability of his acquittal, the
postconviction court properly denied his motion.
AFFIRMED.
ROWE and OSTERHAUS, JJ., concur.
2
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Shuron Hester, pro se, Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
3
