final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; James W. McCann, Judge; L.T. Case No.
Haughwout, Public Defender, and Peggy Natale, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for
APPELLEEâS MOTION FOR REHEARING
grant appellee's motion for rehearing, withdraw our
opinion issued on August 30, 2017, and substitute the
following opinion in its place.
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
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. From the rental car, the police
recovered 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.
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."
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
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 ...