DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CHARLES JOHNSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D16-2840

[August 30, 2017]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; James W. McCann, Judge; L.T. Case No. 

562007CF001396A.

Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public 

Defender, West Palm Beach, for appellant.

No brief filed for appellee.

GERBER, C.J.

The defendant appeals from the trial court’s order denying his motion 

for return of property. The defendant argues the court erred in summarily 

denying his motion without an evidentiary hearing, because his motion 

was facially sufficient and his allegations were not refuted. We agree with 

the defendant’s argument. We reverse for an evidentiary hearing.

Procedural History

The defendant was convicted of burglary of a conveyance, first degree 

petit theft, criminal mischief over $200 but less than $1,000, driving while 

license suspended as a habitual offender, and possession of twenty grams 

or less of cannabis. The burglary, theft, and mischief charges arose from 

the defendant breaking into a woman’s car and stealing her purse out of 

the car. The defendant fled in a car which had been rented to the 

defendant’s girlfriend, but which he did not have permission to drive. The 

defendant later abandoned the rental car. The police recovered from the 

rental car the woman’s cell phone, purse, and items from her purse. The 

habitual offender and cannabis charges arose from the defendant’s driving 
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away in the rental car, which contained marijuana. The defendant was 

not convicted of any crime related to using the rental car without 

permission.

After the defendant served his sentence, he filed a motion for return of 

property. In the motion, the defendant alleged the police seized his 

personal property during his arrest, the property was not needed as 

evidence because he had served his sentence, and the property was not 

the fruit of criminal activity. The defendant alleged his property as: a 

Samsung cell phone; $15.00; four GPS systems; Cartier glasses; clothing;

a red Cartier case; and “all other miscellaneous items not included in this 

motion.”

The trial court issued an order seeking a response from the state and 

the police department which arrested the defendant. The police 

department responded. In the response, the police department argued the 

defendant’s motion was legally insufficient:

The defendant does not describe all of the property that he 

seeks the return of with specificity. He first references a 

Samsung cell phone, this is problematic given that the 

defendant was convicted of Burglary of a Conveyance and 

First Degree Petit Theft and a cell phone was listed as one of 

the stolen items in the State’s Information. . . . Additionally, 

the defendant claims rights to fifteen dollars in United States 

Currency, four GPS systems, Cartier glasses and case, and

clothing. The defendant was in a rented car that his own 

girlfriend stated was taken without her consent. He then tried 

to abandon the car by giving the keys to an independent 

witness who just happened to be putting gas in her own car 

at the gas station the Defendant pulled into in an effort to 

evade law enforcement. . . . Lastly, the defendant claims rights 

to “all other miscellaneous items not included in this motion.” 

This is certainly legally insufficient as there is nothing specific 

about “miscellaneous” or addressing items not included in his 

motion and should be denied.

While, the defendant asserts that the property is not the 

fruit of criminal activity, his convictions for Burglary of a 

Conveyance and First Degree Petit Theft suggest otherwise.

The police department attached to its response its probable cause 

affidavit, inventory, incident report, and the state’s information. The 

probable cause affidavit stated that the defendant stole the victim’s purse, 
3

which contained her cellular phone. The inventory listed, among other 

items recovered from the vehicle which the defendant was driving, various 

GPS devices, a Samsung phone, and eyeglasses in a case.

 

However, the incident report alleged that the police recovered two

cellular phones from the vehicle. According to the incident report, the 

police dialed a phone number on one of the phones, and the burglary 

victim’s husband answered. The incident report further alleged that the 

victim’s husband met with the police and identified that phone and the 

purse as belonging to the victim. According to the incident report, as the 

police transported the defendant to the jail, he asked the police to bring 

his phone with him. The incident report then stated: “[The defendant’s] 

phone was one of the two phones recovered from the [vehicle] during the 

initial investigation.” The incident report finally states that the police 

denied the defendant’s request and instead stored his phone as evidence.

The trial court summarily denied, without an evidentiary hearing, the 

defendant’s motion to return property.

This appeal followed. The defendant argues the court erred in 

summarily denying his motion without an evidentiary hearing, because 

his motion was facially sufficient and his allegations were not refuted. 

Neither the state nor the police department filed an answer brief.

Our Review

We agree with the defendant’s argument. The procedure for a 

defendant to move for a return of property was described in Bolden v. State, 

875 So. 2d 780 (Fla. 2d DCA 2004), an opinion which we have cited with 

approval. Sanchez v. State, 174 So. 3d 439, 442-43 (Fla. 4th DCA 2015). 

In Bolden, our sister court described the procedure as follows:

When the defendant seeks the return of seized property as 

the true owner, the applicable procedure is similar to the 

procedure for the consideration of a motion for postconviction 

relief. First, the defendant must file a facially sufficient 

motion for the return of property. To be facially sufficient, the 

motion must allege that the property at issue was his personal 

property, was not the fruit of criminal activity, and was not 

being held as evidence. Implicit in this standard is the 

requirement that the defendant must specifically identify 

property at issue. However, the defendant need not establish 

proof of ownership in order to allege a facially sufficient claim 

for the return of property.
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If the trial court finds that a motion to return property is 

facially sufficient, it may order the State to respond by citing 

applicable case law and attaching portions of the record to 

refute the defendant’s contention that the property should be 

returned, after which the motion may be summarily denied. 

In the alternative, the trial court may hold an evidentiary 

hearing. At the evidentiary hearing, the trial court must first 

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. 

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, the defendant is 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. However, 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.

Id. at 782-83 (footnotes, citations, and quotation marks omitted).

Here, the defendant’s motion was facially sufficient, except for his nonspecific claim as to “all other miscellaneous items not included in [his] 

motion.” The defendant specifically identified the other property at issue

and alleged the property was: his personal property; not the fruit of 

criminal activity; and not being held as evidence because he had served 

his sentence. 

The police department’s response and attachments do not refute the 

defendant’s allegations. The incident report stated that one phone 

belonged to the victim and the other phone belonged to the defendant. The 

police department’s response and attachments do not allege that the 

defendant’s phone, $15.00, four GPS systems, Cartier glasses and case, 

and clothing were: fruit of criminal activity; still being held as evidence; 

the subject of forfeiture proceedings; evidence to be admitted in another 

criminal prosecution; or subject to a superior possessory interest in the 

property. Bolden, 875 So. 2d at 782. Therefore, the trial court should 

have held an evidentiary hearing pursuant to Bolden. Id.
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Conclusion

Based on the foregoing, we reverse the trial court’s order summarily 

denying, without an evidentiary hearing, the defendant’s motion for return 

of property, except for the defendant’s non-specific claim as to “all other 

miscellaneous items not included in [his] motion.” We remand for an 

evidentiary hearing pursuant to Bolden.

Reversed and remanded for evidentiary hearing.

LEVINE and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.