EARL J. RAY, JR. v. STATE OF FLORIDA

FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA

Case No. 5D23-1457 LT Case No. 2005-CF-1788-A

EARL J. RAY, JR.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

3.853 Appeal from the Circuit Court for Duval County. Mark Borello, Judge.

Earl Ray, Jr., Raiford, pro se.

Ashley Moody, Attorney General, and Robert Charles Lee, Assistant Attorney General, Tallahassee, for Appellee.

November 9, 2023

PER CURIAM.

We affirm the trial court’s summary denial of Appellant’s facially sufficient motion for post-conviction DNA testing filed pursuant to Rule 3.853 of the Florida Rules of Criminal Procedure. The court erred when it failed to order a State response before summarily denying the motion. See Fla. R. Crim. P. 3.853(c)(2) (“The court shall review the motion and deny it if it is facially insufficient. If the motion is facially sufficient, the prosecuting

authority shall be ordered to respond to the motion within 30 days or such other time as may be ordered by the court.”). However, we agree with the First District that this error is reviewed for harmless error. See Gresham v. State, 181 So. 3d 1207, 1209 (Fla. 1st DCA 2015) (“A harmless error analysis should be applied when a trial court denies a facially sufficient rule 3.853 motion without first receiving a response from the State.”). Upon review of the motion, the postconviction court’s order, and exhibits attached to the order, we conclude that the court’s error was harmless and, therefore, we affirm.

AFFIRMED.

EDWARDS, C.J., LAMBERT, and PRATT, JJ., concur.

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.