IN THE SUPREME COURT OF FLORIDA MARK VINCENT OLVERA, Petitioner, STATE OF FLORIDA, Respondent. 5th DCA Case No. 5D L.T. Case No.

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1 IN THE SUPREME COURT OF FLORIDA MARK VINCENT OLVERA, Petitioner, v. STATE OF FLORIDA, Respondent. 5th DCA Case No. 5D L.T. Case No CF-DB PETITIONER S JURISDICTIONAL BRIEF Jerri A. Blair Florida Bar No and Jerry T. Lockett, Esq. Florida Bar No Lockett & Blair, P.A. Post Office Box 130 Tavares, Florida Phone: (352) and Michael A. Graves, Esq. GRAVES & SPIVEY, P.A. 715 W. Main Street

2 Tavares, FL Florida Bar No Counsel for Petitioner, Mark Vincent Olvera 2

3 TABLE OF CONTENTS PAGE TABLE OF CONTENTS... I TABLE OF CITATIONS... ii, iii Cases... ii, iii Statutes... iv Other Authority... iv PREFACE... v STATEMENT OF THE FACTS... 1 SUMMARY OF ARGUMENT... 8 JURISDICTIONAL STATEMENT ARGUMENT... 3 CONCLUSION... 5 CERTIFICATE OF SERVICE... 6 i

4 TABLE OF CITATIONS CASES PAGE Amendment to Fla. Rules of Criminal Procedure Creating Rule (DNA testing), 807 So.2d 633, 636 (Fla. 2001)(Anstead, Jay, concurring) 4, 5 Hitchcock v. State, 856 So.2d 633, (Fla. 2001)... 4 The Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988)...3, 4 Times Publishing Company v. Russell, 615 So. 2d 158 (Fla. 1993)... 3 Zollman v. State, 820 So.2d 1059, (Fla.2d DCA 2002)... 5 ii

5 STATUTES Section , Florida Statutes... 4 OTHER AUTHORITY Fla. Rule of Criminal Procedure (3.853)...4, 5 Fla. R. App. P (a)(2)(A)(iv)... 3 Article V, Section 3(b)(3), Florida Constitution... 3 iii

6 PREFACE Citations to the appendix will be designated as A at page number. iv

7 STATEMENT OF THE FACTS Petitioner, MARK VINCENT OLVERA ( Olvera ), seeks review of the opinion of the Fifth District affirming the trial court s denial of his motion for post sentencing DNA testing. A-1. Olvera was charged with the rape and murder of Tina Hendricks ( Hendricks ). A at 2. Hendricks was murdered in June, A at 1. On the night of the murder, she was in a bar dancing and drinking into the early hours of the morning. A at 1. Olvera attempted to dance and talk with her. A at 1-2. Some witnesses testified that Hendricks left the bar with John Lockard ( Lockard ). A witness indicated that she left with Olvera. A at 2. Hendricks boyfriend, Thomas Hopwood ( Hopwood ), testified that he had intercourse with Hendricks the day of the murder. A at 5. At the time of the investigation of the crime, physical evidence was collected from the victim which contained DNA. Id. Samples were also taken for testing from Olvera and Hopwood. A at 2. Later DNA was taken for testing from Lockard. A at 4. These samples were submitted to the FBI for analysis. Id. The state s experts testified that the male portion of the vaginal sample matched Olvera and did not match Hopwood or Lockard. A at 1

8 2-4. Olvera s expert testified he could not rule out Lockard as a match using the FBI s match criteria. A at 4-5. Olvera raised question of whether or not the FBI lost or mixed up the samples because there was no trace of any DNA from Hopwood in the vaginal sample even though Hopwood had sex with Hendricks on the day of the murder. A at 4. The other forensic evidence used against Olvera at trial was hairs found in the car Olvera was driving on the night of Hendrick s death. A at 2. There was testimony the hairs in Olvera s car were indistinguishable from the victim s hair. Id. DNA analysis was not performed on the hair. Id. The evidence used against Olvera at trial, included testimony concerning his attempt to talk with and dance with Hendricks; testimony that he left with Hendricks; and the forensic evidence. A at 1-2. The testimony was conflicting as to (1) who the victim left the bar with on the evening of the murder (A at 1-2); and (2) whether or not Lockard s DNA matched the vaginal sample. A at 4-5. There was also conflicting testimony as to the validity of the FBI database used to determine probability. A at 4. Additionally, there was conflicting testimony on the issue of whether or not Olvera s and Hopwood s samples could have been switched. A at

9 In 2002, Olvera filed a petition seeking post conviction DNA analysis for a limited purpose, and seeking re-testing based upon the switched samples theory, and that the DNA testing was inconclusive because there was an absence of Hopwood s DNA in the vaginal sample. A at 5. That motion was denied by the trial court and affirmed by the Fifth District. Id. Olvera then filed a second motion for DNA testing in 2003 requesting testing of the DNA in the hair samples found in his car which have never been previously tested for DNA and a re-test of the blood samples. A at 5-6. That motion was denied by the trial court and affirmed by the Fifth District. JURISDICTIONAL STATEMENT The Florida Supreme Court has jurisdiction in this case because the case expressly and directly conflicts with another decision of this court and the decisions of another district court of appeal on the same points of law. Article V, Section 3(b)(3), Florida Constitution; Fla. R. App. P (a)(2)(A)(iv). See also Times Publishing Company v. Russell, 615 So.2d 158 (Fla. 1993); The Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988). ARGUMENT I. THIS COURT HAS JURISDICTION AND SHOULD EXERCISE ITS JURISDICTION TO REVIEW THE FIFTH DISTRICT S DECISION. In The Florida Star v. B.J.F., supra, this court held: 3

10 This court in the broadest sense, has subject matter jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution, over any decision of a district court that expressly addresses a question of law within the four corners of the opinion itself. That is, the opinion must contain a statement or citation effectively establishing a point of law upon which the decision rests. 537 So.2d 288. This court also recognized that Article V, Section 3(b)(3) creates and defines two separate concepts. 537 So.2d 288. The first concept is a general grant of discretionary subject matter jurisdiction. Id. The second concept is a constitutional command as to how the discretion itself may be exercised. Id. This court noted: In effect, the second is a limiting principle dictated to this court by the people of Florida. Id. In B.J.F., this court held that jurisdiction might exist if there were a hypothetical conflict. Here, there clearly is at least a hypothetical conflict and this is a case where it is especially important that the court exercise its jurisdiction. A. THIS COURT HAS JURISDICTION BECAUSE THE FIFTH DISTRICT S OPINION DIRECTLY CONFLICTS WITH THE OPINIONS OF THIS COURT AND THE SECOND DISTRICT. In Amendment to Florida Rules of Criminal Procedure Creating Rule (DNA testing), 807 So.2d 633 (Fla. 2001), this court adopted Florida Rule of Criminal Procedure 3.853, tracking the provisions of Section , Florida Statutes (2001). In Amendment, this court discussed the importance of DNA testing 4

11 and the credibility and certainty that proper DNA testing provides to a case for guilt or innocence. 807 So.2d 636. This court noted: Now, because there is virtual universal agreement as to the value of this testing and resolving critical criminal justice issues, we should not hesitate to broadly embrace its use both in original proceedings and in post conviction proceedings where there is a credible concern that an injustice may have occurred and DNA testing may resolve the issue. Id. In Hitchcock v. State, 856 So.2d 23 (Fla. 2004), this court recognized that Rule is not intended as a fishing expedition. 866 So.2d 27. However, this court further noted: Rather, it is intended to provide a defendant with an opportunity for DNA testing of material not previously tested or of previously tested material when the results of previous DNA testing were inconclusive and subsequent developments in DNA testing techniques would likely provide a definitive result... Id. at Emphasis added. The Fifth District s opinion makes it clear that there was testimony that the DNA used in Olvera s trial was inconclusive. The Fifth District s affirmance appears to be based upon the fact that DNA was used in Olvera s trial. The court stated: Olvera s position is further weakened by the fact that, unlike others seeking DNA testing who were convicted without the corroboration of DNA testing, Olvera s trial was centered on DNA evidence. A at 6. This is contrary to the reasoning of this court in Hitchcock and the plain language of the rule as found in 5

12 Amendment to Florida Rules of Criminal Procedure Creating Rule (DNA testing). The Fifth District has ignored the language of the rule which makes it clear when there were inconclusive DNA tests performed and subsequent developments in DNA testing techniques would likely provide a definitive result, DNA testing should be allowed. The language used by the Fifth District makes it appear that if DNA testing occurred, a motion under Rule should not be granted. This is contrary to the plain language of the rule as well as the holdings of this court and Amendment to Florida Rules of Criminal Procedure Creating Rule (DNA testing) and Hitchcock. The Fifth District s opinion is also in conflict with the decisions of the Second District in Zollman v. State, 827 So.2d 1059 (Fla. 2d DCA 2002) and Huffman v. State, 837 So.2d 1147 (Fla. 2d DCA 2003). In Zollman, the trial court found that identity was not genuinely disputed because there the victim identified the defendant as the assailant in that case. Similarly, in Huffman, there was quite significant circumstantial evidence of Huffman s guilt presented at trial including finger print evidence, phone calls traced to Huffman s home that were made to the victim s house after the attack and the victim s in-court identification of Huffman s voice as the voice of her assailant. 837 So.2d The court found that 6

13 identity remained an issue at trial and that the motion should have been granted. Id. In this case, the Fifth District has found that there was no genuine dispute of identity by finding that DNA testing has shown that [Olvera s] semen was found in the victim s vagina. A at 6. The Fifth District s reasoning ignores other findings in its own opinion that, in fact, the evidence was in conflict as to whether or not Olvera contributed the sample which was identified as K-2. See A at 4-6. Hopwood testified that he had sex with the victim on the date of the murder, and yet there was no match between his sample and the vaginal sample. Thus, testing the hair which was never tested for DNA could be extremely persuasive. Additionally, retesting Olvera s DNA could also be helpful in determining these issues. As in Huffman and Zollman, there was significant other circumstantial evidence presented at trial. There was DNA evidence presented at trial but it was highly contested and the identity of the contributor of K-2 remained a genuinely disputed issue at trial. Obviously, retesting Olvera s blood and testing the hairs that were left in the vehicle which was the only evidence which was not contested because there was no DNA analysis performed on it. B. THE COURT SHOULD TAKE JURISDICTION BECAUSE A MAN S LIBERTY IS AT STAKE. 7

14 This is exactly the circumstance when the court should exercise it s jurisdiction. An innocent man could spend his life in prison if the court does not exercise its jurisdiction in this case. CONCLUSION In conclusion, Olvera requests that this court accept jurisdiction and consider this case on the merits. 8

15 CERTIFICATE OF SERVICE I CERTIFY that a copy hereof was delivered by mail to Brad King, State Attorney s Office, P.O. Box 7800, Tavares, FL 32778; Carmen F. Corrente, Esq., Attorney General, 444 Seabreeze Blvd., Fifth Floor, Daytona Beach, FL and William Gross, State Attorney s Office, P.O. Box 7800, Tavares, FL and this day of June, CERTIFICATION JERRI A. BLAIR Florida Bar No JERRY T. LOCKETT Florida Bar No LOCKETT & BLAIR, P.A. P.O. Box West Alfred Street Tavares, Florida (352) and Michael A. Graves, Esq. GRAVES & SPIVEY, P.A. 715 W. Main Street Tavares, FL Florida Bar No.: Attorneys for Appellant I certify that this brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). Jerri A. Blair 9