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Brown v. State

District Court of Appeal of Florida, Second District
Feb 5, 1993
613 So. 2d 569 (Fla. Dist. Ct. App. 1993)

Summary

holding that a facially sufficient motion for the return of seized property is one in which the defendant alleges “that the property was exclusively his or her own, that it was not contraband or the fruit of criminal activity, and that it was not being held as evidence or by similar lawful justification”

Summary of this case from Marlow v. State

Opinion

No. 92-04416.

February 5, 1993.

Appeal from the Circuit Court, Hillsborough County, Donald C. Evans, J.


Wayne Brown appeals the denial of his "motion for the return of property."

The motion alleges that Brown was arrested on felony charges in 1989. In conjunction with the arrest his automobile was forfeited and his apartment searched. Among the items seized were a weightlifting belt, personal papers, an attache case, and "plaintiff's application to the Florida Bar." Brown asserts that none of these possessions was relevant to his criminal charges. The Tampa Police Department, in its response to the motion, acknowledged seizure of an attache case from Brown's apartment, and stated they would return it if ordered to do so. However, the department disclaimed knowledge of any items taken from Brown's car.

When a trial court has assumed jurisdiction over criminal charges, it is thereafter vested with an inherent power to assist the true owner in the recovery of property held in custodia legis. Garmire v. Red Lake, 265 So.2d 2 (Fla. 1972). This power has been extended to situations such as that depicted in the present case, viz., where property has been seized from a criminal suspect. Estevez v. Gordon, 386 So.2d 43 (Fla. 3d DCA 1980). A separate suit for replevin or conversion is not necessary. Estevez, 386 So.2d at 45 n. 2.

Our court has not written extensively about this inherent power. We would require the movant to allege that the property was exclusively his or her own, that it was not contraband or the fruit of criminal activity, and that it was not being held as evidence or by similar lawful justification. Upon receipt of a facially sufficient motion the trial court is obligated to exercise this inherent jurisdiction, and relief by mandamus may be available in the event it does not. Estevez.

In Estevez the court refused to entertain the motion. Where a court erroneously declines to accept or exercise jurisdiction, mandamus may lie. See, e.g., State ex rel. Gaines Construction Co. v. Pearson, 154 So.2d 833 (Fla. 1963). Had the court ruled on the merits of Estevez's motion, the proper remedy would have been an appeal pursuant to Fla.R.App.P. 9.130(a)(3)(C)(ii). Golding v. Director of Public Safety Department of Metropoilitan Dade County, 400 So.2d 990 (Fla. 3d DCA 1981).

We find that Brown's motion is facially sufficient. Moreover, we find no justification for the trial court's refusal to direct the return of the attache case and other items which the Tampa Police Department admits holding and is willing to relinquish. Cf. Jones v. Coe, 579 So.2d 905 (Fla. 2d DCA 1991). Accordingly, we reverse this portion of the trial court's order and direct the court to exercise its inherent power and enter an order requiring the return of those items to Brown. We withhold formal issuance of a writ of mandamus.

Because the attache case was seized pursuant to a search warrant, Brown arguably should have applied to the magistrate before whom the warrant application was made. § 933.14, Fla. Stat. (1991). However, in view of the department's concession that it holds and is willing to return the attache case, we believe any technical deficiencies in Brown's pro se pleading can be overlooked. In any event it is doubtful that section 933.14 constitutes the sole remedy available to Brown. See Coon v. State, 585 So.2d 1079 (Fla. 1st DCA 1991).

The property allegedly taken from Brown's automobile presents a more problematic situation. The effect of this portion of the trial court's order is similar in principle to the granting of summary judgment while disputed facts remain unresolved. The decision in Coon v. State, 585 So.2d 1079, 1081 (Fla. 1st DCA 1991), indicates a defendant should receive an evidentiary hearing when asserting "that the state is unlawfully holding his property."

While we agree that Brown is entitled to a hearing, again, the published case law is not abundant regarding the extent of such a hearing. In the absence of a formal complaint, we believe the trial court's inherent power would allow it to resolve such questions as whether enumerated items were, in fact, seized, and whether a valid basis exists to permit their retention by authorities. Accordingly, we also reverse this portion of the trial court's order and direct further inquiry into the whereabouts of the items allegedly taken from Brown's automobile. Whether the inquiry should be more extensive than this, or the available remedy broader than an order to return, is debatable. Certainly the court cannot make the police department return property it does not possess. Conceivably Brown might at some point be able to establish that property was lost or damaged through some fault of the department, entitling him to money damages. In this instance, however, we would require an original action pursuant to the rules of civil procedure.

Reversed.

DANAHY, A.C.J., and HALL and PATTERSON, JJ., concur.


Summaries of

Brown v. State

District Court of Appeal of Florida, Second District
Feb 5, 1993
613 So. 2d 569 (Fla. Dist. Ct. App. 1993)

holding that a facially sufficient motion for the return of seized property is one in which the defendant alleges “that the property was exclusively his or her own, that it was not contraband or the fruit of criminal activity, and that it was not being held as evidence or by similar lawful justification”

Summary of this case from Marlow v. State

finding that court had inherent power to assist true owner in recovery of property held in custodia legis; separate suit for replevin or conversion was not necessary

Summary of this case from Douglas v. Deutsche Bank Trust Co.

comparing a trial court's denial of a motion for return of property after the State disclaimed knowledge of certain items which a defendant claimed were seized to "the granting of summary judgment while disputed facts remain unresolved"

Summary of this case from Smith v. State

In Brown, the Second District held that it was improper to withhold property from a defendant when the property was taken from his vehicle without an evidentiary hearing.

Summary of this case from Sanchez v. State

stating that a defendant is not required to file a separate suit for replevin or conversion when seeking to recover property seized in connection with his or her case

Summary of this case from Williams v. State

In Brown, the court questioned extension of the trial court's jurisdiction beyond a determination of whether to return seized property, suggesting that absent an original action pursuant to the rules of civil procedure, the criminal trial court may not have jurisdiction to require the police department to return a car that it no longer possessed, or pay for damages if it were established that the car was lost or damaged through some fault of the department.

Summary of this case from Lockwood v. Pierce

In Brown v. State, 613 So.2d 569 (Fla. 2d DCA 1993), the Tampa Police Department disavowed knowledge of some of the items demanded by the movant.

Summary of this case from Butler v. State
Case details for

Brown v. State

Case Details

Full title:WAYNE ELLIOT BROWN, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Feb 5, 1993

Citations

613 So. 2d 569 (Fla. Dist. Ct. App. 1993)

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