Zollman v. State

Allen Zollman appeals the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.853, seeking post-conviction DNA testing of certain items of evidence. We previously reversed the trial courts ruling that Zollmans motion was facially insufficient. Zollman v. State, 820 So. 2d 1059 (Fla. 2d DCA 2002). In this appeal, Zollman argues that the trial court erred on remand when it determined, based solely on the States unsworn response to his motion, that the evidence that he seeks to have tested no longer exists. Because the trial court could not properly make such a factual determination without affording Zollman the benefit of an evidentiary hearing, we reverse.