BOWERS v. STATE (2020)

BY ORDER OF THE COURT:

Upon consideration of the motion for rehearing filed by the appellant on June 22, 2020,

IT IS ORDERED that the appellant's motion for rehearing is granted. The opinion dated April 3, 2020, is withdrawn and the attached opinion is substituted therefor.

No further motions for rehearing will be entertained in this appeal.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL, CLERK

Weyman T. Bowers appeals the order dismissing his motion for return of property as untimely. We reverse and remand for further proceedings.

In 2016, Bowers pleaded guilty to charges of robbery and of fleeing or attempting to elude a law enforcement officer and was sentenced pursuant to a negotiated plea. Bowers directly appealed the judgment and sentence, and this court affirmed. Bowers v. State, 225 So. 3d 809 (Fla. 2d DCA 2017) (table decision). The mandate issued on May 25, 2017.

In his July 31, 2019, motion for return of property, Bowers asserted that his iPhone had been confiscated when he was arrested. He referred to an attached Palmetto Police Department vehicle inventory form that listed a box knife and a cell phone as “property removed for evidence or by owner/driver.”

The trial court dismissed Bowers's motion as untimely under section 705.105(1), Florida Statutes (2019), which provides:

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.

The court, however, made no finding that the Palmetto police had seized the cell phone pursuant to a lawful investigation or as evidence; nor did it attach portions of the record that would support such a finding.

Usually, we would reverse and remand for the trial court to do so. See White v. State, 926 So. 2d 473, 474 (Fla. 2d DCA 2006) (“[W]hen summarily denying a motion for return of property as untimely under [section 705.105(1)], the court is obliged to attach portions of the record showing that the property was seized pursuant to a lawful investigation or held as evidence.“); Hughes v. State, 768 So. 2d 512, 512-13 (Fla. 2d DCA 2000) (“Nothing in this court's record indicates that Hughes' property was seized pursuant to section 705.105․ Consequently, the trial court must either attach documents to its order demonstrating that Hughes is not entitled to relief or conduct an evidentiary hearing.”); see also Adams v. State, 273 So. 3d 195, 196-97 (Fla. 5th DCA 2019) (reversing the order denying Adams's motion for return of property under section 95.11(3)(i), Florida Statutes (2010), as untimely under section 705.105(1) because neither the trial court's order nor the record established which statute applied and remanding for the trial court to make that determination). Before the court can do so in this case, however, Bowers must file a facially sufficient motion. As the court noted in its dismissal order, the motion was facially insufficient because it failed both to specifically identify the cell phone and to assert that the phone was not the fruit of criminal activity. See Scott v. State, 922 So. 2d 1024, 1026 (Fla. 5th DCA 2006) (“A facially sufficient motion for return of property: (1) alleges that the property is the movant's personal property; (2) alleges that the property was not the fruit of criminal activity; (3) alleges that the property was not being held as evidence; and (4) specifically identifies the property.” (citing Eight Hundred, Inc. v. State, 895 So. 2d 1185, 1186 (Fla. 5th DCA 2005); Bolden v. State, 875 So. 2d 780, 782 (Fla. 2d DCA 2004))).

The trial court should grant Bowers leave to amend his motion to correct these deficiencies within a reasonable time. See Almeda v. State, 959 So. 2d 806, 809 (Fla. 2d DCA 2007). Accordingly, we reverse the order dismissing Bowers's motion and remand for the court to provide Bowers an opportunity to file a facially sufficient motion for return of property.

Reversed and remanded.

FOOTNOTES

FOOTNOTE.  

ROTHSTEIN-YOUAKIM, Judge. FN1. Judge Atkinson has been substituted for Judge Salario, who was on the original Bowers panel.

LaROSE and ATKINSON,1 JJ., Concur.