DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

RUFUS MITCHELL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D15-1412

[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, Judges; L.T. Case No. 501987CF002233BXXXMB.

Rufus Mitchell, Crawfordville, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. 

Melear, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

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 

conclusively 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 sexual 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 before his 1991 trial, but the results were inconclusive. 

Mitchell always maintained his innocence, identity has always been an 
2

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

attackers.1 He listed several items of physical evidence 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 motion, 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. Even 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 

crimes 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 intercourse with her. The Third District reasoned that if the 

1 The State’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 

committed 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 not 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 containing the DNA profile of three different men was found 

within the victim, but none of it matched Mitchell, then he could be 

exonerated. 

An appellate court should affirm the summary denial of a rule 3.853 

motion only if “the record shows conclusively that 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.

STEVENSON, GROSS and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.