TRIAL JUDGE'S RULING IN DNA REQUEST

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

CASE NO.  CR94-7132

STATE OF FLORIDA,
Plaintiff,

v.

THOMAS LEE GUDINAS
Defendant.

ORDER GRANTING DEFENDANT'S 3.853
MOTION FOR POSTCONVICTION DNA TESTING

THOMAS LE GUDINAS, defendant in the above styled case, has filed a 3.853 Motion for Postconviction DNA Testing.  On January 7, 2003, the Court held a hearing on the motion and heard argument from both parties.  Pursuant to Florida Rule of Criminal Procedure 3.853 (C)(5), this Court finds:

1. Physical evidence that may contain DNA still exists.  State Exhibits 36, 37, 38, 39, and 41, which contain the evidence Mr. Gudinas seeks to test, are in possession of the Orange County Clerk of Court, 435  North Orange Avenue, Room LL02, Orlando, FL 32801.

2. The evidence containing the DNA is authentic, and the results of DNA would be admissible at trial and at a future hearing.

3. There is a reasonable probability that Mr. Gudinas would have been acquitted or received a lesser sentence if exculpatory DNA evidence had been admitted at trial.

4. The Defendant has shown good cause for testing by an independent laboratory.  The State  and the Defendant have agreed upon Orchid Cellmark, 20271 Goldenrod Lane, Germantown, Maryland, 20876-4064, which is accredited by the American Society of Crime Laboratory Directors.

Accordingly, this Court ORDERS that:

1. The Evidence Clerk is directed to release the evidence specified in paragraph 2 of this Order to a representative of the Orlando Police Department (OPD), specifically, Orlando Police Sergeant Luis Tanzi, or his designee, for the purpose of transporting that evidence to Orchid Cellmark, 20271 Goldenrod Lane, Germantown, Maryland, 20876-40645, for testing of the evidence.  The date and time of release shall be scheduled with the evidence clerk by the parties in order to ensure a timely delivery of the evidence Orchid Cellmark, pursuant to the procedures set forth in paragraphs two through six.  both the State and the defendant shall be entitled to have a representative present at the turnover of the evidence to the OPD representative and to accompany the OPD representative in the process of transporting the evidence.  The Evidence Clerk shall not turn over the evidence unless the defendant's representative is also present or the defendant's counsel has provided a written statement waiving the presence of the defendant.

2. Upon the defendant's application, the evidence to be released by the Clerk and tested pursuant to this Order is as follows:

Description	Exhibit
Vaginal/Oral/Rectal Slides	State's Exhibit 36
Swab of thigh	State's Exhibit 37
Saline swab of breasts	State's Exhibit 38
Labia swabbing	State's Exhibit 39
Vaginal swab	State's Exhibit 41

 

 

 

 

3. The evidence shall undergo PCR-based DNA testing to determine whether any DNA found in the above evidence matches that of the Defendant.

4. The Defendant and the State Attorney shall each be entitled to have a representative present to observe any testing procedures.  Said representatives must obey the rules or regulations of the testing facility and must not interfere with testing procedures.

5. All expenses incurred with the release and testing of the evidence shall be borne by the defendant, except that OPD shall bear the costs involved in the transporting of the evidence by the OPD representative.

6. The following procedures shall be used to maintain the chain of custody concerning the evidence:
   (a)  the Evidence Clerk shall photograph all evidence prior to its release.  Any evidence in sealed containers shall be photographed intact.
   (b)  The representative of the OPD shall deliver the evidence to Orchid Cellmark forensics laboratory between the hours of 9:00 am and 4:30 pm by February 28, 2003.  Counsel for the Defendant shall be responsible for calling the forensics laboratory of Orchid Cellmark on or before February 26, 2003 to confirm that laboratory personnel will be present on the day agreed for delivery between the hours of 9:00 am and 4:30 pm on or before February 28, 2003, to receive delivery of the evidence.
   (c)  At the time of delivery of the evidence to the forensics laboratory, the OPD representative shall sign the release form ("Form 206"), releasing the Evidence to Orchid Cellmark.  A forensics laboratory staff member shall simultaneously sign the Form 206 as acknowledgment of the delivered evidence.
   (d)  The Orchid Cellmark forensic laboratory staff will, during the time it holds and tests the evidence, store the evidence in an isolated and locked space;  such storage will be indicated by an internal chain of custody form, which form shall bear the time, date, and signature of each and every person who removes the evidence from the locked storage and the time of the return of the evidence to storage.  The testing will be done in a manner that will preserve as much of the evidence as possible.
   (e)  Upon completion of testing of the evidence, a member of the forensics laboratory staff shall notify counsel for the Defendant by telephone that the evidence may be retrieved.  Counsel for the Defendant shall then make arrangements with the OPD to retrieve that evidence and return it to the custody of the Evidence Clerk.  At the time of release of the evidence, a member of the forensics laboratory staff shall sign the Form 206 releasing the evidence, and the representative of the OPD shall sign the Form 206 accepting the evidence.  The form used by the forensics laboratory indicating the chain of custody of the evidence while in possession of that laboratory shall be given to the representative of the OPD at the time of retrieval.
   (f)  Transportation and testing of the evidence shall be done in such fashion as to assure against spoilage, and consistently with practices and standards employed by the Florida statewide criminal analysis laboratory system.
   (g)  Copies of this Order shall be provided to Orchid Cellmark prior to the transport of the evidence, and the acceptance of the evidence by it of the procedures set forth in this order.

7. Orchid Cellmark shall conduct the testing and complete a report of the of the results no later than six weeks after the DNA is submitted.

8. reports and results of testing shall be provided to counsel for the Defendant, Leslie Scalley, 3801 Coporex Park Drive, Tampa, FL, 33619; the Office of the State Attorney, Chris Lerner, 415 North Orange Avenue, Orlando, FL  32801; this Court, Honorable Judge Perry, 425 North Orange Avenue, Orlando, FL 32801; and copies will be filed with the Clerk of the Court, 425 North Orange Avenue, Orlando, FL 32801.

9. An authorized D.O.C. agent shall take a blood sample from the Defendant, THOMAS LEE GUDINAS, at the UNION CORRECTIONAL INSTITUTE located in Raiford, Florida.  The person taking the blood sample will verify that the person the samples are taken from is THOMAS LEE GUDINAS.  The Defendant's identification is DOC # 379799, and his date of birth is 2/27/74.

10. DOC shall send the sample by overnight delivery to Orchid Cellmark, 20271 Goldenrod Lane, Germantown, Maryland, 20876-4064.  The sample shall be sent so that it will arrive at Orchid Cellmark on a weekday.

11. A representative of CCRC-Middle and the State Attorney may be present when the samples are taken, and CCRC shall co-ordinate a time convenient with all the parties if they desire to be present.

SO ORDERED, in Orlando, Orange County, Florida, this 24th day of January, 2003.

The Honorable Belvin Perry Jr.
Circuit Judge

THOMAS LEE GUDINAS 379799  P-1203 Union Correctional Institution 7819 N.W. 228th Street Raiford, Florida  32036-4410
POSSIBLE  INNOCENCE IN FLORIDA PRISONS
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