IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

YVELAN PIERRE,

Appellant,

v.

Case No. 5D23-168

LT Case No. 16-2008-CF-3055-AXXX-MA

STATE OF FLORIDA, 

Appellee. 

_______________________________/

Decision filed March 17, 2023 

3.853 Appeal from Circuit Court 

for Duval County, 

Tatiana Salvador, Judge. 

Yvelan Pierre, Milton, pro se. 

Ashley Moody, Attorney General, 

Tallahassee, and Daren L. Shippy, 

Assistant Attorney General, 

Tallahassee, for Appellee. 

PER CURIAM. 

AFFIRMED.

SOUD and MACIVER, JJ., concur.

MAKAR, J., concurs, with opinion.
2

Case No. 5D23-168

LT Case No. 16-2008-CF-3055-AXXX-MA

MAKAR, J., concurring.

This case involves the denial of the Yvelan Pierre’s Rule 3.853 motion 

for post-conviction DNA testing. The trial court determined the motion was 

facially sufficient, and the State was ordered to show cause why DNA testing 

should not be ordered. The show cause order directed that the State shall

indicate “any justifications” for denying the defendant’s request, but none 

was offered. The State’s one sentence response, instead, stated it had 

reviewed the motion and had “no objection to the Court entering an order 

directing the State to test materials for DNA comparison.” Nonetheless, the 

trial court thereafter entered a detailed order explaining that (a) the evidence 

to be tested still existed; and (b) DNA test results would likely be admissible 

as evidence; but that (c) no reasonable probability existed that the outcome 

of the criminal case against the defendant would have been different with 

DNA testing of the evidence. Fla. R. Crim. P. 3.853(5)(A)–(B). As such, the 

trial court denied the relief sought despite the State’s lack of an objection.

Because it raised no objection to the motion in the trial court, the State 

was directed to file an answer brief in this Court addressing why the relief 
3

sought should not be granted. The State’s response regarding its lack of an 

objection was less than helpful, stating in total as follows:

The State’s lack of an objection was not binding on the trial court 

the same as the State’s concession of error on appeal is not 

binding on this Court. . . . Moreover, a lack of objection is not the 

same as an agreement or acknowledgement by the State that 

Defendant’s motion has merit. It is nothing more than a lack of 

objection, which may be based on any number of reasons not 

relevant to the merits of the motion.

The lack of an objection to, or even whole-hearted agreement with, a motion 

seeking DNA testing, of course, is not binding on the trial court, which is 

required to make legislatively mandated findings. § 925.11(2)(f), Fla. Stat.

(2022).

Even if non-binding, a party’s failure to object to an opposing party’s 

motion nevertheless has significance, often that the relief sought should be 

granted. When a party does not object to a motion for an extension of time, 

for example, a trial court will generally interpret that as implied approval and 

have little hesitation in granting relief absent some apparent abuse of the 

privilege; the same applies to evidence admitted at trial where no objection 

is lodged. Lack of an objection doesn’t diminish a court’s inherent judicial 

power to adjudicate a motion—granting it, denying it, in whole or in part—but 

it is readily seen as acquiescing in the relief sought in many, if not most,

contexts.
4

The same is true in this case. The lack of an objection to a motion for 

DNA testing is a tacit approval, potentially leading a trial court to believe that 

the State has studiously apprised the situation and determined that relief is 

appropriate. Busy trial judges may even sign off on an order granting relief

without as thorough a review of the record as occurred in this case, believing 

the parties are in accord and that the motion is meritorious.

For these reasons, the lack of an objection should be based on a 

reasoned assessment rather than “any number of reasons not relevant to the 

merits of the motion.” Objections, or the lack of them, ought not be based on 

irrelevancies; instead, a court-ordered response to a facially sufficient motion 

for DNA testing should explain the State’s position to assist the trial court in 

its requisite findings, analysis, and holding. For instance, on appeal the State 

agrees that DNA testing would not lead to a different outcome in the criminal 

trial. An objection on that basis with an explanation should have been made 

in the trial court versus lodging no objection and putting the entire onus on 

the trial court’s shoulders. Alternatively, if the State has no objection to DNA 

testing, it should explain how the movant has met the three requisites under 

the statute/rule, including an assessment of the probability that the criminal 

case’s outcome would be different with DNA testing.
5

Here, the trial court did a commendable job on its own, without input 

from the State, to review the record and transcripts, analyze the legal issues, 

and prepare a detailed written order that shows no basis for reversal. A 

reasoned assessment from the State in these types of cases, however, 

would undoubtedly assist busy trial judges and facilitate their statutory 

obligations to make findings and decide whether relief is warranted.