FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Sarasota County; Charles E. Roberts, Judge.
Smith, III, pro se.
Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs
Cline, Assistant Attorney General, Tampa, for Appellee.
Smith, III, appeals the dismissal of his motion to return
property. The trial court originally dismissed his motion
without prejudice 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. 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
Smith was convicted in Sarasota County of armed home-invasion
robbery and armed kidnapping with intent to harm or
terrorize. He was sentenced to two concurrent terms of life
imprisonment. Subsequent to his conviction and sentencing,
Mr. Smith filed successive motions for return of property. In
his operative motion, Mr. Smith explains that, "[f]or
the convenience of [the] court and to facilitate [the]
expeditious return of [his] property, " he "made a
good faith effort to provide" the court with an
evidentiary inventory "based upon evidence logs/receipts
previously provided by" the Sarasota County
Sheriff's Office (SCSO) and Venice Police Department
to Mr. Smith's motion was a five-page list created by Mr.
Smith, cataloguing the property that Mr. Smith wanted the
State to return. Also attached were multiple property
receipts given to him by SCSO and VPD. The list 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 additional step of organizing his
property into five "types"-watches, iPods,
electronic gadgets, computers, and jewelry.
response to Mr. Smith's motion, the State explained that
"[h]undreds of items were seized by multiple agencies
and stored under multiple case numbers in connection with the
investigation of this case." Even though Mr. 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
precisely which items he is seeking to have returned, and the
current location of those items."
State gave two specific examples to illustrate its confusion.
First, the State pointed out that the first item on Mr.
Smith's list was item number 31, "G Shock
Watch." However, when the State examined the attached
SCSO property receipts, it claimed that item number 31 in the
receipts was not described as "G Shock Watch" but
was instead described as "Allen
Wrenches." Second, the State noted that there were a
minimum of five law enforcement agencies involved in this
investigation 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 the State, "[t]his burden falls on the
defendant and he has failed to meet that burden."
trial court found that Mr. Smith failed to meet his burden to
"specifically identify" the property he wanted the
State to return. The trial court reasoned that
"[a]lthough some of the property receipts attached to
[Mr. Smith's] motion appear to [have] originated from
[SCSO], several of the property receipt lists contain no
indication regarding which law enforcement agency they
originated from." The trial court also stated that
"[i]t is . . . unclear whether [Mr. Smith] 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 Manatee
County." For all of these reasons, the trial court
determined that Mr. Smith's motion was facially deficient
for failing to describe the property that Mr. Smith wanted
returned to him. In dismissing Mr. Smith's motion with
prejudice pursuant to our instructions upon relinquishment of
jurisdiction, the trial court echoed the same reasons it
expressed in its prior dismissal without prejudice.
facially sufficient motion for return of property must allege
that the property at issue is the defendant's personal
property, that the property is not the fruit of criminal
activity, and that the property is not being held as
evidence. Durain v. State, 765 So.2d 880, 880 (Fla.
2d DCA 2000). "Implicit in this standard is the
requirement that the defendant must specifically identify
'property at issue.' " 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 respond by citing
applicable case law and attaching portions of the record . .
., after which the motion may be summarily denied."
Id. (citing Durain, 765 So.2d at 880-81).
"In the alternative, the trial court may hold an
evidentiary hearing." Id.
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 provided 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 his list. Not only did
Mr. Smith meticulously list the items he wanted returned, but
he even 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. 5th
DCA 2005) (reversing the denial of a motion for return of
property where, although the defendant's description of
the property may have been somewhat vague, it was
"sufficient to satisfy any uncertainty regarding a
proper description of the property sought"); Coon v.
State, 585 So.2d 1079, 1081 (Fla. 1st DCA 1991) (same).
we reject the State's argument that the property receipts
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 the locations where the impounded property is-or has
been-located. They also contain handwritten entries