Opinion
No. SC11–2150.
2012-07-13
Glen Edward ROGERS, Appellant(s) v. STATE of Florida, Appellee(s).
Glen Edward Rogers, a prisoner under sentence of death, appeals the circuit court's order summarily denying a successive motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution.
We have previously affirmed Rogers' conviction and sentence of death, see Rogers v. State, 783 So.2d 980 (Fla.2001), and also rejected his appeal for the denial of postconviction relief, see Rogers v. State, 957 So.2d 538 (Fla.2007). On appeal from the denial of his successive postconviction motion, Rogers asserts that the circuit court erred in summarily denying his motion as untimely without an evidentiary hearing. In addition, Rogers challenges the circuit court's denial of his motion for laboratory services.
With regard to the denial of the motion for laboratory services, to the extent that Rogers sought the upload of certain evidence into the Combined DNA Index System (CODIS), the circuit court did not abuse its discretion. Defense counsel recognized at the August 11, 2011, hearing that the testing conducted in preparation for trial did not provide a sufficient DNA profile for the requested relief. To the extent that Rogers now seeks updated DNA testing of certain evidence, defense counsel did not file such a motion in the proceedings below. Accordingly, we affirm the circuit court's denial of relief as to this claim.
With regard to Rogers' successive postconviction claims, he asserts that he is entitled to relief based upon: (1) evidence pertaining to a 1999 PET scan; and (2) evidence pertaining to alleged judicial bias at the original trial. Florida Rule of Appellate Procedure 3.851 provides that a movant can file a successive postconviction motion where the motion alleges one of three delineated exceptions to the time limitation. See, e.g., Fla. R.App. P. 3.851(d)(2). In reviewing the claims presented, Rogers has failed to show any of these exceptions apply and accordingly both claims are procedurally barred.
In addition to the procedural bar, with regard to the PET scan this Court held on direct appeal in 2001 that even if a PET scan had been introduced at trial, Rogers could not show prejudice because he introduced other evidence that showed he suffered from brain damage and the trial court used that evidence in finding certain mitigation. Rogers, 783 So.2d at 1000 (“[B]ecause the defense was able to provide substantial evidence of Rogers' mental health by means other than a PET–Scan, including his prior brain injuries, psychological disturbances, and seizure disorder, and because the trial court found mitigating circumstances related to his mental condition, including a statutory mitigating circumstance, we do not find that Rogers was prejudiced by the denial of the PET–Scan.”).
Accordingly, we affirm the circuit court's order denying the successive motion for postconviction relief.
It is so ordered.