For the reasons set forth in my dissents in Barbour v. State,903 So. 2d 858 (Ala. Crim. App. 2004), and Dowdell v. State, 854 So. 2d 1195 (Ala. Crim. App. 2002), I respectfully dissent. In doing so, I again strongly urge the Legislature to pass statutes and/or the Alabama Supreme Court to establish rules that allow for, and set parameters for, post-conviction DNA testing.

*Page 390

Note from the reporter of decisions: On February 23, 2007, the Court of Criminal Appeals issued the following order:

"The motion filed in the circuit court was not treated as a Rule 32, Ala.R.Crim.P., petition; no in forma pauperis declaration was filed nor was a filing fee paid.

"As we stated in Hart v. State, 939 So. 2d 948, 949 (Ala.Crim.App. 2005):

"`"The right of appeal is wholly statutory. Under our statute an appeal is authorized in criminal cases only from a judgment of conviction." Dawson v. State, 37 Ala. App. 16, 17, 66 So. 2d 567, 568 (1952) (emphasis added).'

"There is no statute authorizing an appeal from the denial of a postconviction motion for DNA testing.

"Moreover, while we have recognized that the need for postconviction DNA testing may be presented in a Rule 32 petition — see Barbour v.State, 903 So. 2d 858 (Ala.Crim.App. 2004), and Dowdell v. State,854 So. 2d 1195 (Ala.Crim.App. 2002) — we have also recognized that Alabama has yet to establish any procedures for defendants to request postconviction DNA testing.

"Accordingly, it is hereby ORDERED that this appeal be DISMISSED as being from a nonappealable order. It is further ORDERED that the certificate of judgment in this case shall be issued forthwith.

"McMillan, Shaw, Wise, and Welch, JJ., concur.

"Baschab, P.J., dissents, with opinion."