NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

DELMER SMITH, III, ) ) Appellant, ) ) v. ) Case No. 2D16-2619 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed August 16, 2017.

A ppeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Sarasota County; Charles E. Roberts, Judge. Delmer Smith, III, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, A ssistant Attorney General, Tampa, for A ppellee.

BADALAMENTI, Judge. Delmer Smith, III, appeals the dismissal of his motion to retur n property. The trial court originally dismissed his motion without prejudi ce to amend, and therefore the trial court's dismissal was not reviewable on appeal. See Almodovar v. State, 74 So. 3d 1140, 1140 (Fla. 2d DCA 2011) (citing Brown v. State, 36 So. 3d 186, 187 (Fla.- 2 - 2d DCA 2010)). We relinquished jurisdiction to the trial court so that it could dismiss Mr. Smith's motion with prejudice. The trial court obliged, and we may now review the dismissal of Mr. Smith's motion for return of property. Mr. Smith was convicted in Sarasota County of armed home-invasi on robbery and armed kidnapping with intent to harm or terrorize. He was sentenced to two concurrent terms of life imprisonment. Subsequent to his c onviction and sentencing, Mr. Smith filed successive motions for return of pr operty. In his operative motion, Mr. Smith explains that, "[f]or the convenience of [the ] court and to facilitate [the] expeditious return of [his] pr operty," he "made a good faith ef fort to provide" the court with an evidentiary inventory " based upon evidence logs/receipt s previously provided by" the Sarasota County Sheriff's Office (SCSO) and Venice Poli ce Department (VPD). Attached to Mr. Smith's motion was a five-page list created by Mr. Smith, cataloguing the property that Mr. Smith wanted the State to ret urn. Also attached were multiple property receipts given to him by SCSO and VPD. The l ist attached to the motion was compiled by Mr. Smith based on the item numbers and the property descriptions in these receipts. Mr. Smith also took the additi onal step of organizing his property into five "types"—watches, iPods, electronic gadgets, computers, and jewelry. In its response to Mr. Smith's m otion, the State explained that "[h]undreds of items were seized by multiple agencies and stored under mult iple case numbers in connection with the investigation of this case." Even though M r. Smith claimed to have made a "good faith effort" to provide the State with a list of his property, the State claimed that it was "unable to determine from his motion precis ely which items he is seeking to have returned, and the current location of those ite ms."- 3 - The State gave two specific examples to illustrate its confusio n. First, the State pointed out that the first item on Mr. Smith's list was i tem number 31, "G Shock Watch." However, when the State examined the attached SCSO pro perty receipts, it claimed that item number 31 in the receipts was not described a s "G Shock Watch" but

was instead described as "Allen Wrenches." 1 Second, the State noted that there were a minimum of five law enforcement agencies involved in this inves tigation and that the

State "should not be forced to ' figure out' exactly which items the defendant seeks to have returned and the location of those items." According to t he State, "[t]his burden

falls on the defendant and he has failed to meet that burden."

The trial court found that Mr. Smith failed to meet his burden to "specifically identify" the property he wanted the State to ret urn. The trial court reasoned that "[a]lthough some of the property receipts attache d to [Mr. Smith's] motion appear to [have] originated from [SCSO], several of the propert y receipt lists contain no indication regarding which law enforcement agency they originat ed from." The trial court also stated that "[i]t is . . . unclear whether [Mr. Smit h] is requesting every single item on each of the property receipts or if some of those items were already introduced as evidence in this case or in [the] capital felony trial in Ma natee County." For all of these reasons, the trial court determined that Mr. Smith's moti on was facially deficient for failing to describe the property that Mr. Smith wanted retu rned to him. In dismissing Mr. Smith's motion with prejudice pursuant to our instructions upon relinquishment of

1 The State's confusion seems to stem from the fact that the item numbers on some of the receipts were crossed out in the "Item No." colu mn and rewritten in the column titled "If Damaged Recovered Value." Ignoring the cross ed-out figures in the "Item No." column, all of the seized property is correctly numb ered to match the numbers on Mr. Smith's list.- 4 - jurisdiction, the trial court echoed the same reasons it expres sed in its prior dismissal without prejudice. A facially sufficient motion for return of property must allege that the property at issue is the defendant's personal property, that th e property is not the fruit of criminal activity, and that the property is not being held as e vidence. Durain v. State, 765 So. 2d 880, 880 (Fla. 2d DCA 2000). "Implicit in this stan dard is the requirement that the defendant must specifically identify 'property at issu e.' " Bolden v. State, 875 So. 2d 780, 782 (Fla. 2d DCA 2004). "If the trial court finds that a motion to return property is facially sufficient, it may order the State to resp ond by citing applicable case law and attaching portions of the record . . . , after which th e motion may be summarily denied." Id. (citing Durain, 765 So. 2d at 880-81). "In the a lternative, the trial court may hold an evidentiary hearing." Id. Here, Mr. Smith's motion properly alleges that the property he wants returned is his personal property , is not the fruit of criminal activity, and is not being held as evidence. See Durain, 765 So. 2d at 880. Mr. Smith provide d an itemized list of all the property he wanted returned . A quick comparison between Mr . Smith's list and the property receipts he has provided indicates that Mr. Smith does not want all of the property on the receipts returned—only those select items on hi s list. Not only did Mr. Smith meticulously list the items he wanted returned, but he ev en provided the item numbers corresponding to each item from the receipts. The law asks no more of him. Cf. Eight Hundred, Inc. v. State, 895 So. 2d 1185, 1186 (Fla. 5 th DCA 2005) (reversing the denial of a motion for return of property where, although t he defendant's description of the property may have been somewhat vague, it was "sufficien t to satisfy any- 5 - uncertainty regarding a proper description of the property soug ht"); Coon v. State, 585 So. 2d 1079, 1081 (Fla. 1st DCA 1991) (same). Moreover, we reject the State's argument that the property rece ipts provided by Mr. Smith render his motion deficient because they "contain no indication regarding which law enforcement agency they originated from." The receipts are all visibly from SCSO and VPD. The receipts specifically provide t he locations where the impounded property is—or has been—located. They also contain h andwritten entries describing dates, times, and places of when and where certain i tems were received or released by SCSO and VPD. We recognize that the State may be unsure as to where Mr. Smith 's property may be located at the present moment. But this does n ot render Mr. Smith's motion for return of property facially insufficient. If, unbek nown to Mr. Smith, his property no longer resides with those agencies that gave him pr operty receipts, then the proper solution is an evidentiary hearing. See Bolden, 875 So. 2d at 782-83 (explaining that the question of "whether the property is still in the agen cy's possession" is to be resolved at an evidentiary hearing (citing Stone v. State, 630 So. 2d 660, 661 (Fla. 2d DCA 1994))); see also Brown v. State, 613 So. 2d 569, 571 (Fla. 2d DCA 1993) (comparing a trial court's denial of a motion for return of pro perty after the State disclaimed knowledge of certain items which a defendant claimed were seized to "the granting of summary judgment while disputed facts remain unreso lved"). Because Mr. Smith's motion for return of property was facially sufficient, the trial court erred in summarily dismissing it for its lack o f specificity and its failure to pinpoint precisely where Mr. Smith's property may be at the pre sent moment.- 6 - Accordingly, we reverse the tria l court's summary dismissal and remand for further proceedings consistent with this opinion. Reversed; remanded with instructions.

SILBERMAN and WALLACE, JJ., concur.