JUSTICE v. STATE, 2D06-2816 (Fla.App. 2 Dist. 12-22-2006)
DAVID L. JUSTICE, Appellant, v. STATE OF FLORIDA, Appellee.
No. 2D06-2816. District Court of Appeal of Florida, Second
District. Opinion filed December 22, 2006.

Appeal pursuant to Fla.R.App.P. 9.141(b)(2) from the
Circuit Court for Polk County; Roger Allan Alcott, Judge.

SILBERMAN and CANADY, JJ., Concur.

CASANUEVA, Judge.

David L. Justice appeals the summary denial of his motion
for return of property, motion for continuance of his
motion for return of property, and demand for discovery
filed in circuit court case number CF03-007441-XX. We
affirm without comment the circuit court’s summary denial
of Justice’s motion for continuance of his motion for return
of property and the demand for discovery. We reverse the
summary denial of the motion for return of property and
remand for further proceedings consistent with this
opinion.

In his motion for return of property, Justice states that
the Polk County Sheriff’s Office initiated an investigation
at the Day’s Inn in Winter Haven on or about September 10,
2003, and, as a result, seized a home computer, printers,
digital cameras, a digital camcorder, a man’s watch, and
other personal property. Subsequently, on February 17,
2004, Justice was arrested. His motion alleges that the
State never entered the seized items into evidence or
initiated any forfeiture proceedings for the property. The
State nolle prossed the charges on January 26, 2006.
Justice therefore requests that the circuit court order the
return of the property and release it to his father.

“A trial court’s jurisdiction over a criminal proceeding
includes inherent authority over property seized or
obtained in connection with the proceeding and thus held in
custodia legis.” Stevens v. State, 929 So. 2d 1197, 1198
(Fla. 2d DCA 2006) (citing White v. State, 926 So. 2d 473
(Fla. 2d DCA 2006); Eight Hundred, Inc. v. State, 781 So. 2d
1187, 1191-92 (Fla. 5th DCA 2001) (Eight Hundred I)). “This
authority continues beyond the termination of the
prosecution, thus enabling the court to direct the return
of the property to its rightful owner.” Id. A facially
sufficient motion for return of property must specifically
identify the property and allege that it is the movant’s
personal property, that the property is not the fruit of
criminal activity, and that the property is not being held
as evidence. See Scott v. State, 922 So. 2d 1024, 1026
(Fla. 5th DCA 2006) (citing Bolden v. State, 875 So. 2d
780, 782 (Fla. 2d DCA 2004); Eight Hundred, Inc. v. State,
895 So. 2d 1185, 1186 (Fla. 5th DCA 2005) (Eight Hundred
II)).

The circuit court could have concluded that Justice’s
motion was facially insufficient on the ground that it did
not specifically identify the property at issue or
specifically allege that the property at issue was
Justice’s personal property. See Bolden, 875 So. 2d at 783.
However, the circuit court denied Justice’s motion based on
the Polk County Sheriff’s Office response to Justice’s
motion. In its response, the Polk County Sheriff’s Office
attached a property and evidence receipt that refers to
incident number 2003-164852. The Polk County Sheriff’s
Office asserts that incident number 2003-164852 corresponds
to Justice’s criminal case number CF03-007441-XX and that
none of the items requested by Justice in his motion match
the items referenced in incident number 2003-164852. A
review of the Polk County Sheriff’s Office property and
evidence receipt does not indicate when the Polk County
Sheriff’s Office acquired the property referenced in
incident number 2003-164852, which does not match the items
listed in Justice’s motion, nor does it specifically
describe the circuit court case number to which incident
number 2003-164852 corresponds. Nevertheless, it appears
that the circuit court summarily denied Justice’s motion
based on the Polk County Sheriff Office’s assertion that it
does not have any of Justice’s property.

If Justice’s allegations are deemed to be sufficient, the
circuit court was obligated to provide Justice a full
evidentiary hearing to determine whether the property at
issue is in the custody of the Polk County Sheriff’s Office
and should be returned to Justice. See Scott, 922 So. 2d at
1026-27 (citing Eight Hundred I, 781 So. 2d at 1192; Helmy
v. Swigert, 662 So. 2d 395, 397 (Fla. 5th DCA 1995)). The
requirement for an evidentiary hearing was not obviated nor
satisfied by the circuit court’s reliance on the Polk
County Sheriff’s Office property and evidence receipt.
“Representations by an attorney for one of the parties
regarding the facts . . . do not constitute evidence.”
Eight Hundred, Inc. v. Fla. Dep’t. of Revenue, 837 So. 2d
574, 576 (Fla. 1st DCA 2003) (quoted in Scott, 922 So. 2d
at 1027).

We remain concerned about the facial sufficiency of
Justice’s motion because he fails to specifically allege
that the property seized was his personal property and to
specifically identify the property he requests be returned.
Unless he can remedy those inadequacies, he may lack
standing to recover the requested property. On remand, if
the circuit court determines that Justice’s motion is
facially sufficient, it shall hold an evidentiary hearing.
See Scott, 922 So. 2d at 1027; Coon v. State, 585 So. 2d
1079, 1081 (Fla. 1st DCA 1991). However, if the circuit
court determines that Justice’s motion is facially
insufficient based on the deficiencies we have noted or for
any other reason, it shall identify those deficiencies and
grant him leave to amend his motion within a reasonable
time.

Reversed and remanded.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED