AMENDMENT TO FLORIDA RULES OF CRIMINAL PROCEDURE CREATING RULE 3.853 (DNA Testing). Amendment to Florida Rules of Appellate Procedure 9.140 & 9.141, 807 So. 2d 633

PER CURIAM. We have before us .the Criminal Procedure Rules Committee’s amended emergency petition to create new Rule of Criminal Procedure 3.853 (DNA Testing) and the Appellate Court Rules Committee’s emergency petition to amend Rules of Appellate Procedure 9.140 and 9.141 (Appeals from DNA Testing Under Proposed Rule 3.853). We have jurisdiction. See art. Y, § 2(a), Fla. Const. We adopt proposed new rule 3.853 with the modifications explained below. We also adopt the proposed amendments to rules 9.140 and 9.141.

BACKGROUND In February 2001, the Criminal Rules Committee filed an emergency petition asking this Court to adopt new rule 3.853 providing for postconviction DNA testing. During the 2001 regular session, and after the Criminal Rules Committee filed its original petition, the Legislature passed DNA legislation, which, among other things, provides for postsentencing DNA testing. See Fla. CS for CS for SB 366 (2001), ch.2001-97, Laws of Fla. (creating §§ 925.11 and 943.3241 and amending § 943.325, Fla. Stat.).

After considering the proposed rule, which varied from the new legislation in several respects, and hearing argument, the Court returned the matter to the Criminal Rules Committee for expedited reconsideration in light of the new legislation. Amendment to Flori da Rules of Criminal Procedure Creating Rule 3.85S (DNA testing), No. SC01-363 (unpublished order) (Fla. June 6, 2001). On July 2, 2001, the Criminal Rules Committee filed the amended proposal now before the Court. The amended proposal was published for comments and oral argument was set for August 28, 2001.

On August 1, 2001, the Appellate Rules Committee filed an emergency petition to amend Rules of Appellate Procedure 9.140 and 9.141 to provide for appeals in rule 3.853(DNA) proceedings. That petition was consolidated with the rule 3.853 petition. Because of the August 1 filing date, the Appellate Rules Committee’s proposed amendments were not published for comment prior to August 28, 2001, oral argument on the petitions.

PROPOSED RULE 3.853 Proposed rule 3.853 varies from the new DNA legislation in several respects, the most significant of which are the provisions addressing who may seek postconviction DNA testing and the laboratory or agency that must conduct the testing.

Chapter 2001-97,

section 1, Laws of Florida, creates

section 925.11(l)(a), Florida Statutes, which provides that a person who has been tried and found guilty may move the court to order postsentencing DNA testing. Like the legislation, proposed rule 3.853(

a) authorizes DNA testing for those who have been tried and convicted but the rule also authorizes testing for those who entered guilty or nolo contende-re pleas.

Chapter 2001-97,

section 1, also creates

section 925.11(2)(h), Florida Statutes, which provides for court-ordered DNA testing to be conducted by the Florida Department of Law Enforcement (FDLE) or its designee, as provided in

section 943.3251. See ch.2001-97,

section 2, Laws of Fla. (creating § 943.3251(1) which provides that FDLE or its designee shall carry out court-ordered DNA testing). Proposed rule 3.853(c)(7) tracks the legislation but further authorizes the court, on a showing of good cause, to order testing by another laboratory or agency. DISCUSSION The majority of those who filed comments in opposition to proposed rule 3.853 raise separation of powers concerns in connection with proposed subdivisions (

a) and (c)(7), taking the position that these provisions deal with substantive matters that are within the sole purview of the Legislature. The proponents of the proposed rule maintain that these provisions are either procedural in nature or within this Court’s constitutional authority to issue writs of habeas corpus under

article V, section (8) of the Florida Constitution. After considering the comments filed with the Court and presented at oral argument as well as the broad policy issues surrounding post-conviction DNA testing, we adopt the appended procedures to effectuate the new legislation without reaching the constitutional issues raised in this proceeding. Cf. In re Amendments to the Florida Evidence Code, 782 So.2d 339 (Fla.2000) (declining to address substantive/procedural issues in a rules amendment case). We have modified proposed subdivision (

a) of the proposed rule to explain that the new rule simply provides procedures for obtaining DNA testing under

section 925.11, Florida Statutes. Subdivision (

b) of rule 3.853 lists the contents of a motion seeking DNA testing. In response to the comments and consistent with subsection (l)(

a) of

section 925.11, which authorizes DNA testing when the evidence tested may contain DNA that would exonerate the movant or mitigate the sentence received, we have modified subdivision (b)(4) of the new rule to require: a statement that identification of the movant is a genuinely disputed issue in the case, and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received. Subdivision (

c) of the new rule provides general procedures to be followed after a motion for testing is filed. Specifically, we have amended subdivision (c)(7) to allow the court, on a showing of good cause, to order testing by a laboratory or agency, certified by the American Society of Crime Laboratory Directors or the National Forensic Science Training Center, other than FDLE or its designee when requested by a movant who can bear the costs of such testing. Subdivision (

d) of the new rule provides time limitations for seeking postconviction DNA testing. At this time, we adhere to the two-year time limitations contained in the new legislation.

However, we adopt proposed subdivision (d)(2), which addresses matters not addressed by the new legislation, as modified below: A motion to vacate filed under rule 3.850 or a motion for postconviction or collateral relief filed under rule 3.851, which is based solely on the results of the court-ordered DNA testing obtained under this rule, shall be treated as raising a claim of newly-discovered evidence and the time periods set forth in rules 3.850 and 3.851 shall commence on the date that the tvritten test results are provided to the court, the movant, and the prosecuting authority pursuant to subsection (c)(8).

Subdivisions (

e) and (

f) of the new rule provide procedures for rehearing and appeal. In response to a comment by The Honorable O.H. Eaton, Jr., Past Chair of the Criminal Procedure Rules Committee, we have modified proposed subdivision (

f) to provide that an appeal may be taken within thirty days from the date the order on the motion is rendered, rather than within thirty days from the entry of the order. Rules 9.140 and 9.141 are amended to provide procedures for appeals from Rule 3.853 orders, which parallel the procedures for appeals in rule 3.850 and rule 3.800(

a) proceedings. Accordingly, with the modifications noted above, we adopt proposed Florida Rule of Criminal Procedure 3.853, and amend Florida Rules of Appellate Procedure 9.140 and 9.141, as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The new rule and amendments shall become effective immediately. However, because the amendments to rules 9.140 and 9.141 have not been published for comment, interested parties shall have until December 17, 2001, in which to file comments addressing those changes. It is so ordered.

WELLS, C.J., and SHAW, HARDING, and LEWIS, JJ., concur. ANSTEAD, J., concurs in part and dissents in part with an opinion, in which PARIENTE and QUINCE, JJ., concur.