### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

ELIAS ROSADO
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 18

- 2968

[ March 6, 2019 ]

Appeal of order denying rule 3.850 motion from the Circuit Court for

the Seventeenth Judicial Circuit, Broward County ; Paul L. Backman

, Judge; L.T. Case No. 07

- 002858CF10A

.

Elias Rosado, Florida City, pro se.

Ashley B. Moody, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

P ER C URIAM

.

Elias Rosado appeals an order summarily denying his second rule

3.850 motion and an order prohibiting further pro se filing in this case.

We affirm the denial of the rule 3.850 motion and reverse the sanction.

In 2007, Rosado pleaded guilty to burglary of a structure, and he was sentenced to ten years in prison as a habitual offender. He filed a prior

rule 3.850 motion that was denied after an evidentiary hearing and affirmed on appeal. Rosado v. State , 67 So. 3d 220 (Fla. 4th DCA 2011)

. He also filed a rule 3.800(a) motion to correct an illegal sentence that was denied and affirmed on appeal. Rosado v. State , 234 So. 3d 747 (Fla. 4th DCA 2017)

.

On July 19, 2017, Rosado filed this rule 3.850 motion alleging newly

discovered evidence after he received a notice from the State that DNA statistical probabilities may have been miscalculated in his case. The notice stated that the Broward Sheriff’s Office Crime Laboratory inappropriately used Combined Probability of Inclusion (CPI) to calculate the statistical probabilities of genetic profiles in complex mixture DNA2 cases. The notice did not indicate whether CPI calculations were used in Rosado’s case. He sought to withdraw his plea, alleging that he would

have proceeded to trial if he had known that the DNA statistics were

miscalculated.

The trial court ordered the State to file a response to the rule 3.850 motion in ninety days. After the State did not ti mely respond, Rosado filed

two m otions to hear and r ule and he requested supplemental DNA discovery including all serology and DNA reports and to allow further testing.

More than a year after Rosado filed this rule 3.850 motion and eight months after the court’s order, the State filed its response. The S tate explained that the notice about calculation errors in complex DNA mixture cases did not apply in this case because the sample analyzed was not a mixture. It was blood from a single person. The State argued there was no good cause to allow postconvic tion discovery. Referring to filings in Rosado’s other cases, the State asked the court to prohibit further pro se filing.

The trial court denied the rule 3.850 motion, and following an order to show cause pursuant to State v. Spencer , 751 So. 2d 47 (Fl a. 1999) , the court prohibited further pro se filing in this case.

We affirm the denial of Rosado’s rule 3.850 motion because the State’s generic DNA Brady 1 notice does not apply to Rosado’s case. As a result, there is no newly discovered evidence that could have affected the voluntariness of his plea.

However, we agree with Rosado that the t rial court erred in prohibiting further pro se filing in this case. See Gaston v. State , 141 So. 3d 627 (Fla. 4th DCA 2014) . Rosado’s second rule 3.850 motion, f iled in response to

the State’s Brady notice, was not an abuse of procedure. The Brady notice did not provide enough information for him to understand that the

calculation error did not occur in his case. The Spencer order to show

cause was directed at t his case, not his other unrelated cases. On appeal,

the State ac knowledges that apart from his motions to hear and r ule and his request for discovery, this case is controlled by Gaston . These motions were related to the State’s delay in responding to the rule 3.850 motion. A prompt response would have shown that the Brady notice was inapplicable and there was no need for further discovery. The record does not show that Rosado abused the postconviction process in this case. See Fla. R.

1 Brady v. Maryland , 373 U.S. 83 (1963).3 Crim. P. 3.850(n)

. Accordingly, the sanction prohibiting further pro se filing is reversed.

Affirme d in part; reversed in part

.

W ARNER
, G ROSS and K LINGENSMITH

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.