Don’t let the government keep your stuff! Get your car, cash, or phone back. The only catch is that the car, cash, or phone cannot be evidence against you in a criminal prosecution.
Under Florida Law, there is a loose procedure in place to get certain items back from the law enforcement agency when the officers have seized items from you. See §705.105, Fla. Stat. [i] In other words, the police cannot simply keep your stuff unless you let them. If you wait more than 60 days, you legally forfeit your stuff to the government and they get to keep it.
The case law in this area is extremely difficult to follow because the appellate courts have created an ad hoc system over the years for implementing §705.105, Fla. Stat. Section 705.105 does not have a codified set of rules or other enacting/enabling statutes (like the Florida Contraband Forfeiture Act (“FCFA”)[ii] does) which explain how it is supposed to work. With this in mind, this article will do its best to outline the basics.
Since the matter starts in criminal court, the matter stays in criminal court. Consequently, the criminal court maintains exclusive jurisdiction over the evidence and items seized.[iii] Since the criminal court has control of the items, it makes sense that the criminal court can decide if, how, or when to return the items when it applies the statute. A motion requesting return of specific items/property must be filed within 60 days of the conclusion of the proceeding.[iv]
“A facially sufficient motion for return of property must specifically identify the property and allege that it is the movant’s personal property, that it is not the fruit of criminal activity, and that it is not being held as evidence.” West v. State, 35 So.3d 175, 176 (Fla. 2d DCA 2010)[v] If the motion fails to properly allege these factors it will be deemed facially insufficient and denied without prejudice. The Order denying must outline all the deficiencies, and then provide the movant with an opportunity to amend the motion within a reasonable amount of time (similar to a post-conviction motion).[vi]
Instead of being held as evidence for a case, the statute also speaks of the item was “seized pursuant to an investigation and is in the custody of the court clerk.”[vii] This statue usually applies to warrantless searches.[viii] Items procured and seized by a warrant have a statute that applies to the return of certain items. On the other hand, if the seizure is unlawful, then the items must be returned forthwith.[ix] Section 705.105, Fla. Stat., does not apply if the law enforcement agency took items that have no investigative or no evidentiary purposes for a prosecution.[x] Those items must be returned as well.
Once the motion is filed, the court must review the motion. The court must make a determination that the motion is timely. If the court determines that the motion is timely, then there are three options for the court (1) order the state to respond to the motion, (2) summarily deny the motion and attach the portions of the record that refute the motion, or (3) conduct an evidentiary hearing and then rule on the motion.[xi] On appeal, the review of the summary denial will be de novo review.[xii]
If you or a loved one has had personal property seized by law enforcement, then you may be entitled to get those items back. But you must ask immediately because there is no way around the 60 day time frame. None. Don’t miss out.
Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
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No. 21-021 Get My Stuff Back
[i] 705.105 Procedure regarding unclaimed evidence.—
(1) Title to unclaimed evidence or unclaimed tangible personal property lawfully seized pursuant to a lawful investigation in the custody of the court or clerk of the court from a criminal proceeding or seized as evidence by and in the custody of a law enforcement agency shall vest permanently in the law enforcement agency 60 days after the conclusion of the proceeding.
(a) If the property is of appreciable value, the agency may elect to:
1. Retain the property for the agency’s own use;
2. Transfer the property to another unit of state or local government;
3. Donate the property to a charitable organization;
4. Sell the property at public sale, pursuant to the provisions of s. 705.103.
(b) If the property is not of appreciable value, the law enforcement agency may elect to destroy it.
(2) Nothing in this section shall be construed to repeal or supersede the provisions of s. 790.08 relating to the disposition of weapons and firearms.
History.—s. 5, ch. 87-82; s. 5, ch. 90-113.
[ii] See §932.701 through 932.704, 932.7062, Fla. Stats.
[iii] See Brown v. State, 613 So.2d 569, 571 (Fla. 2d DCA 1993) (“the court has the inherent power ‘to resolve such questions as whether enumerated items were, in fact, seized, and whether a valid basis exists to permit their return by authorities.’”); and Stone v. State, 630 So.2d 660 (Fla. 2d DCA 1994)
[iv] See §705.105, Fla. Stat.; Darman v. State, 734 So.2d 552 (Fla. 4th DCA 1999); Sarmiento v. State, 816 So.2d 826,827 (Fla. 3d DCA 2002). What constitutes the conclusion of the proceeding can differ depending on what stage the case may be in (like an appeal or mandate … etc.).
[v] Arel v. State, 160 So.3d 104 (Fla. 4th DCA 2015)
[vi] Post-conviction deficiencies, see Spera v. State, 971 So.2d 754 (Fla. 2007); motion for return of property deficiencies, see Arel, supra; Wilson v. State, 957 So.2d 1264, 1265 (Fla. 2d DCA 2007)
[vii] Keep in mind the conjunction “and” is used requiring both there is a lawful investigation and the items are being held by the clerk for the future determination.
[viii] See §933.14, Fla Stat.; Coon v. State, 585 So.2d 1079 (Fla. 1st DCA 1991); Brown v. State, 613 So.2d 569 (Fla. 2d DCA 1993) Warrants have a procedure to return certain items.
[ix] See Shirah v. State, 312 So.3d 1054 (Fla. 1st DCA 2021)
[x] See Shirah v. State, 312 So.3d 1054 (Fla. 1st DCA 2021)
[xi] See Adams v. State, 273 So.3d 195 (Fla. 5th DCA 2019)
[xii] See Peterson v. State, 249 So. 3d 1264, 1265 (Fla. 5th DCA 2018).