March 16, 2005. Rehearing Denied May 10, 2005.
Appeal of order denying rule 3.853 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Victor Tobin and Cheryl J. Aleman, Judges; L.T. Case No. 76-679 CF10A.
Samuel Chestnut, Belle Glade, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
Samuel Chestnut was convicted in 1976 of one count of kidnapping and one count of sexual battery. He seeks review of the trial court's order that denied his motion requesting that DNA testing be performed on certain physical evidence. We reverse the trial court's order and remand for the trial court to conduct a hearing, pursuant to rule 3.853, and make a factual determination as to whether the evidence still exists for testing. We have reviewed the order for disposition, and accompanying certification of destruction. We find that the unsworn certification creates a factual dispute surrounding the destruction of the evidence at issue. See e.g. Warren v. State, 884 So.2d 1074 (Fla. 2nd DCA 2004), Fla. Stat. § 28.213.
GUNTHER, GROSS and TAYLOR, JJ., concur.