Self-Help

FAQ

Below are FAQ guides to various legal topics to help pro se clients

If you do not seek to collect it via a Motion to Return Property, it can become property of the police department whose custody it is in. 

Per § 705.105(1), you have 60 days from the conclusion of the proceeding, after which it becomes property of the law enforcement agency whose custody it is in.

You can get your non-explicitly contraband property back by filing a Motion for Return of Property pursuant to § 705.105, Fla. Stat.

Per Bailey v. State, 93 So. 3d 518, 519 (Fla. 1st DCA 2012)., the motion must contain three assertions by the person seeking the property:

(1) that the property is exclusively his own;
(2) that it was not the fruit of illegal activity; and
(3) that it is not being held for evidentiary purposes.

Like all motions, this motion must conform to the requirements of Fla. R. Crim. P. 3090.

You need to file it and serve it on the proper parties at stated in Fla. R. Crim. P. 3030.

Google the judge your case was assigned to and contact their judicial assistant to set a hearing. You should request 15 minutes.

The only way that the court can deny you a hearing is if the record in the case refutes any of the 3 assertions required in the motion (noted above). Where claims in a motion for return of property are not conclusively refuted, the court must hold a hearing before denying such. Horn v. State, 289 So. 3d 546 (Fla. 1st DCA 2020).

The court is wrong. 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; this authority continues beyond the termination of the prosecution, thus enabling the court to direct the return of the property to its rightful owner. Stevens v. State, 929 So. 2d 1197 (Fla. 2d DCA 2006).

Per Bolden v. State, 875 So. 2d 780, 783 (Fla. 2d DCA 2004), Because consideration of a motion for the return of property is governed by procedures similar to those used in postconviction proceedings, general principles of postconviction relief govern the necessity for the defendant’s presence. A defendant is not entitled to be present as a matter of right; however, when “there are questions of fact within the defendant’s own knowledge which must be resolved, the defendant must be afforded the opportunity to testify and cross-examine witnesses.” Accordingly, if the trial court can resolve Defendant’s motion under the proper standard without considering facts that are within Defendant’s knowledge, then Defendant need not be present.

The procedure for the hearing is laid out in Bolden v. State, 875 So. 2d 780, 782–83 (Fla. 2d DCA 2004):

First, the trial court must ascertain whether the property was confiscated by a law enforcement agency in connection with a criminal prosecution and whether the property is still in the agency’s possession.

Once this is done, if the State is unable to connect the items to specific criminal activity, and no one else can be identified who can demonstrate a superior possessory interest in the property, it should be returned to the defendant or to such person(s) as he may designate.

 

Of note, the state can have the court deny your motion if the State can show that the property was entered into evidence or that the State intends to pursue forfeiture against the property, the defendant is not entitled to have the property returned. Similarly, you are not entitled to have the property returned if the State intends in good faith to bring another criminal prosecution at which the items would be admissible in evidence. Bolden v. State, 875 So. 2d 780, 783 (Fla. 2d DCA 2004).

The trial court may also find that a proper basis does not exist to return seized property if, for example, it was admitted into evidence in the criminal proceeding and the time for direct appeal has not expired; post-conviction proceedings are anticipated where the evidence may be needed; the state intends and is able to pursue forfeiture against the property; the property is needed in other criminal proceedings; or if the motion is untimely because the property is considered unclaimed evidence or property seized in a lawful investigation that has vested permanently in a law enforcement agency. Eight Hundred, Inc. v. State, 781 So. 2d 1187, 1192 (Fla. 5th DCA 2001).

No. The defendant need not establish proof of ownership in order to allege a facially sufficient claim for the return of property. Bolden v. State, 875 So. 2d 780, 782 (Fla. 2d DCA 2004).

Moreover, per Bolden v. State, 875 So. 2d 780, 783 (Fla. 2d DCA 2004), it is the state’s burden to establish that someone else has a superior property interest, not the defendant’s burden to prove no one else does.

Once direct appeal concludes, trial court cannot rely on state’s unsupported assertion that it needs to retain private property to deny a facially sufficient motion for return of property. Horn v. State, 289 So. 3d 546 (Fla. 1st DCA 2020).

Remember, once you file a sufficient motion, the burden is on the state to prove you are not entitled to the property. Bolden v. State, 875 So. 2d 780, 783 (Fla. 2d DCA 2004).

If time for appeal is over (30 days since ruling without an appeal, or appeal has been resolved) then you are pretty much out of luck, as the court now lacks the power to have that person return the property to you. See Gonzalez v. State, 152 So. 3d 69 (Fla. 3d DCA 2014).

Per § 705.106, Fla. Stat., you can have the city / county attorney assist you with this suit.

No, you can still win. Per Sawyer v. Gable, 400 So. 2d 992, 996-97 (Fla. 3d DCA 1981), Statutory right of state to bring forfeiture proceeding with respect to seized item pursuant to search warrant for contraband does not affect jurisdiction of trial judge, in subsequent criminal proceedings against defendant, owner of the item, to determine defendant’s entitlement to return of the property under statute, once criminal charges against him have been dismissed.

Remedy available to defendant who claims that law enforcement did not comply with statutory requirements in disposing of property seized during his arrest is original action pursuant to rules of civil procedure, rather than by means of motion for return of seized property. Butler v. State, 613 So. 2d 1348, 1349-50 (Fla. 2d DCA 1993), cause dismissed, 621 So. 2d 1065 (Fla. 1993).

In addition, you can have the city or county attorney sue the agency for its return. See § 705.106, Fla. Stat.

The court is wrong. Trial courts have the inherent authority to direct the return of property seized from a criminal defendant if that property is no longer needed as evidence against him or her. Thomas v. State, 997 So. 2d 476, 476 (Fla. 1st DCA 2008).

The court is wrong. It is not a prerequisite to motion for return of property that a criminal prosecution be brought following seizure of the property, but once a criminal prosecution is instituted, court in which prosecution is pending acquires jurisdiction over that property to hear and determine all questions concerning its ownership if the property seized had an evidentiary purpose; if, on the other hand, property seized is not held as evidence where no prosecution ensues, then the court to which the warrant and property are returned obtains jurisdiction to order its return. Sawyer v. Gable, 400 So. 2d 992, 994 (Fla. 3d DCA 1981).

You are not. A movant is not entitled to have counsel appointed to represent him in connection with his motion for return of seized property. Plaisted v. State, 46 So. 3d 148 (Fla. 5th DCA 2010).

There are two statutes that govern the return of property in Florida. First, § 933.14, Fla. Stat. governs property seized via search warrant. Second, § 705.105, Fla. Stat. governs the return and disposition of all other property taken in connection with a criminal case.

Yes. The statute governing property seized via a search warrant applies (obviously) only to property taken via a search warrant. Moreover, per § 933.14(1), Fla. Stat., when “it appears to the judge before whom the warrant is returned that the property or papers taken are not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds upon which the warrant was issued, or if it appears to the judge before whom any property is returned that the property was secured by an ‘unreasonable’ search,” , the judge may order a return of the property taken.” This establishes that such property can be ordered during an ongoing case.

This is in contrast to § 705.105, which applies to all property /  evidence however obtained, and only when the case is over and the property  / the evidence is no longer needed.

 

While § 705.105 doesn’t detail what you cannot get back, § 933.14, which governs property taken via warrant, does.

Per that statute, you can’t get back anything that cannot be possessed legally. However, you can get back something that can be illegal, but can be possessed lawfully if you attest that it is owned for its lawful purpose. See § 933.14(1), Fla. Stat.

Items that are presumptively unlawful:

  • slot machines,
  • gambling tables,
  • lottery tickets,
  • tally sheets,
  • rundown sheets, or
  • other gambling devices,
  • paraphernalia and equipment, or narcotic drugs,
  • obscene prints and literature

Additionally, you can’t get back: