### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

RUFUS MITCHELL
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 15

- 1412

[ November 12, 2015 ]

Appeal of order denying rule 3.853 motion from the Circuit Court for

the Fifteenth Judicial Circuit, Palm Beach County ; David F. Crow and

John S. Kastrenakes , Judge s ; L.T. Case No. 501987CF002233BXXXMB

.

Rufus Mitchell, Crawfordville, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, We st Palm Beach, for appellee.

P ER C URIAM

.

Rufus Mitchell appeals an order summarily denying his motion for postconviction DNA testing, filed pursuant to rule 3.853, Florida Rules of

Criminal Procedure. We reverse and remand because the record does not

c onclusively refute his claim.

After a jury trial, Mitchell was found guilty of (I) of sexual battery with threat to use force; (II) robbery; and (III) petit theft. This Court affirmed.

Mitchell v. State , 595 So. 2d 56 (Fla. 1992) (table).

In his rule 3.853 motion, Mitchell alleged the conviction stemmed from

an incident on the beach after dark. The victim first noticed five individuals having a heated argument. Two men left after the argument, but the other three proceeded to commit sexua l battery on her and to rob her and her male companion of personal items. Mitchell’s name was disclosed as one of the five men, but, he alleged, he was never positively identified as one of the three who attacked the victim. DNA testing was

conducted bef

ore his 1991 trial, but the results were inconclusive. Mitchell always maintained his innocence, identity has always been an2

issue, and no one conclusively identified him as one of the victim’s three

attackers. 1 He listed several items of physical eviden ce he sought to have tested, including a rape kit that was positive for the presence of semen. He contended the items would demonstrate the presence of DNA not attributable to him, establishing he did not commit the offenses.

In responding to the motio n, the State argued that even if Mitchell’s DNA was not found, that would not exonerate him. Because there were several attackers, it would not be unexpected to find DNA from other

individuals. The closest case it cited was Galloway v. State , 802 So. 2d 1173 (Fla. 1st DCA 2001). In denying a similar motion, the Galloway court explained,

Appellant merely alleged in his motion that his DNA would not

match DNA evidence found at the scene of the crimes and on the body of the victim of the sexual battery. E ven if DNA testing of this evidence produced such a result, it would not exonerate appellant. Such evidence would not demonstrate that appellant was not present at the scene of the crime and participating with his co

- defendants in the commission of the

cr imes when they occurred. The fact that only appellant’ s

co

- defendants may have deposited DNA at the crime scene or on the body of the victim does not mean that appellant

was not there

. See People v. Pugh , 732 N.Y.S.2d 673, 2001 WL 1426324, at *1 (N.Y. App. Div. Nov. 15, 2001) (upholding denial of postconviction DNA testing in single assailant rape case on grounds that “the absence of defendant ’ s semen on the tested material . . . would not have exonerated or tended to exonerate defendant”).

Id. at 1175 (emphasis added).

However, the Third District distinguished Galloway in Hampton v.

State , 924 So. 2d 34 (Fla. 3d DCA 2006) (reversing denial of motion for DNA testing). In Hampton , the victim had said all three male assailants

had forcible intercours e with her. The Third District reasoned that if the

1 The S tate’s response to this Court represents the victim did identify Mitchell, but points to no record support for that statement. In any event, identity may be at issue, for purposes of postconviction DNA testing, even if the victim positively

identifies the defendant. Zollman v. State , 820 So. 2d 1059, 1062 (Fla. 2d DCA 2002). In his reply to this Court, Mitchell states that one of the state witnesses testified to seeing him leave the beach area with another individual before the
victim was attacked.3

sample collected from the victim contained three DNA profiles, and none of them matched Hampton, such evidence could exonerate him. The Galloway opinion, on the other hand, suggested one co

- defendant

co mmitted sexual assault and the other two were guilty as principals for assisting; in such a case, semen proved to have been deposited by one

would not exonerate the other two. See Hampton , 924 So. 2d at 36

– 37.

The summary record for this appeal does n ot contain any trial testimony, but it includes the probable cause affidavit, in which the victim reported that “all three subjects raped her.” On this record, the case appears to be more like Hampton than Galloway . If DNA testing reveals

that semen cont aining the DNA profile of three different men was found within the victim, but none of it matched Mitchell, th en he could be

exonerated

.

An appellate court should affirm the summary denial of a rule 3.853 motion only if “the record shows conclusively t hat the appellant is entitled to no relief.” Fla. R. App. P. 9.141(b)(2)(D). The record we have been provided does not conclusively show that Mitchell is entitled to no relief

. Accordingly, we reverse and remand.

Reversed and Remanded.

S TEVENSON
, G RO SS and C ONNER
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.