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Johnson v. State

Florida Court of Appeals, Fourth District

August 30, 2017

CHARLES JOHNSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         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 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, 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] ...


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