Opinion
No. 1D20-147
04-30-2021
Kimo BRACHT, Appellant, v. STATE of Florida, Appellee.
Kimo Bracht, pro se, Appellant. Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee.
Kimo Bracht, pro se, Appellant.
Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee.
Bilbrey, J.
Kimo Bracht appeals the summary denial of his motion for return of seized property under section 705.105, Florida Statutes (2019). The trial court found the motion untimely because it was filed more than sixty days after "the conclusion of the proceeding." See § 705.105(1). Because the trial court applied the correct law in determining that Bracht's postconviction motion did not extend the "conclusion of the proceeding" we affirm.
Bracht entered a guilty plea to possession of a firearm by a convicted felon and possession of more than 20 grams of cannabis. Included in his plea was his waiver of his right to appeal the judgment. See Fla. R. App. P. 9.140(b)(2)(A) (defendant may not appeal from guilty plea unless an enumerated exception applies). Consistent with the plea and negotiated sentence, the court entered the judgment and sentence on February 26, 2019. Bracht did not take a direct appeal.
On May 31, 2019, Bracht filed a motion to correct illegal sentence under rule 3.800(a), Florida Rules of Criminal Procedure. Although his negotiated sentence under his plea included the mandatory minimum provision, he challenged the legality of the minimum mandatory provision under the facts of his case. The trial court denied the motion because Bracht's challenge was not cognizable under rule 3.800. See State v. Mancino , 705 So. 2d 1379, 1381 (Fla. 1998). This court affirmed the denial of the motion, agreeing that Bracht's claims were not permitted under rule 3.800(a). Bracht v. State , 290 So. 3d 1044 (Fla. 1st DCA 2020). The mandate for that appeal issued on March 11, 2020.
During his appeal of the denial of his motion to correct illegal sentence, on December 2, 2019, Bracht filed his motion for the return of personal property. He conceded that the items were seized "for potential evidence in a criminal proceeding," but he alleged that the items were no longer being held for evidence and that he was the rightful owner of the currency, precious metals, gems, and other items taken from his home under the search warrant. Bracht attached to his motion a Seizure of Property Notice and a multi-page Sheriff's Property Storage Card listing the various items held by the Office of the Sheriff that Bracht sought to recover.
The trial court determined that Bracht's motion was governed by section 705.105, including the provision that title to unclaimed tangible personal property lawfully seized pursuant to a lawful investigation "shall vest permanently in the law enforcement agency 60 days after the conclusion of the proceeding." Attached to the order were exhibits establishing that the property was seized as evidence by the Jacksonville Sheriff's Office, listed by the Office of the State Attorney as evidence during the prosecution, and that Bracht was notified of the seizure during the criminal investigation. Because Bracht entered the guilty plea on February 26, 2019, and because he was adjudicated guilty and sentenced on the same date, the trial court found the motion for return of the property filed on December 2, 2019, untimely and denied the motion without a hearing.
"This Court reviews an order summarily denying a motion for return of seized property de novo." Adams v. State , 273 So. 3d 195, 196 (Fla. 5th DCA 2019). The "conclusion of the proceeding" under section 705.105(1) is when "the mandate issues from the appellate court on a direct appeal of a defendant's judgment and sentence." Horvatt v. State , 266 So. 3d 1268, 1269 (Fla. 5th DCA 2019) (quoting Davis v. State , 198 So. 3d 1070, 1072 (Fla. 5th DCA 2016) ). But because Bracht's guilty plea waived his right to a direct appeal, no mandate on a direct appeal of the judgment and sentence was issued.
Bracht argues on appeal that his motion for return of property was timely under section 705.105(1) because the "conclusion of the proceeding" did not occur until the mandate issued for his appeal of the denial of his postconviction motion under rule 3.800(a). We reject this position and hold that the "conclusion of the proceeding" means the date the judgment and sentence became final without regard to subsequent postconviction proceedings. This holding aligns with the law governing finality for purposes of other time limits in post-judgment proceedings. See Fla. R. App. P. 9.140(b)(3) (appeal must be filed within 30 days of rendition of final judgment); Fla. R. Crim. P. 3.850(b) (motion must be filed less than 2 years after judgment and sentence become final); Denizard v. State , 157 So. 3d 386, 388 (Fla. 2d DCA 2015) (holding that the two-year time limit to file motion under rule 3.850 begins upon expiration of time to file direct appeal, that is 30 days after rendition of judgment and sentence).
Bracht's unauthorized motion under rule 3.800(a) did not toll the rendition of the judgment and sentence and thus did not extend the date of the "conclusion of the proceeding" as contemplated under section 705.105(1). An authorized, timely motion to correct sentence pursuant to rule 3.800(b) can toll rendition, extending the date of finality of the judgment and sentence. Fla. R. App. P. 9.020(h)(1)(H). But Appellant's postconviction motion under rule 3.800(a) was not authorized. See Mancino , 705 So. 2d at 1381 ; Bracht, 290 So. 3d at 1044.
The order on appeal was supported by the record showing that the motion was subject to the requirements of section 705.105 and those requirements were not met. The trial court correctly found that the motion was filed more than sixty days after the "conclusion of the proceeding." The order on appeal is therefore AFFIRMED .
Ray, C.J., and Winokur, J., concur.