Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-4858 _____________________________ LUTHER ARTHUR HORN III, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Walton County. Jeffrey E. Lewis, Judge. January 23, 2020 PER CURIAM. Appellant, Luther Arthur Horn III, appeals the trial court’s October 25, 2018 order denying his motion for return of property without holding an evidentiary hearing. We reverse. Horn filed an Amended Motion for Return of Property in the circuit court on July 20, 2017 regarding case numbers 2012-CF- 000372, 2013-CF-000249, and 2013-CF-000278. The motion alleged that the property that was taken from his home in Freeport, Florida by the Walton County Sheriff’s Office is his personal property, his property is not connected to any criminal activity or any other criminal cases, and his personal property is not being held as evidence, or used as evidence, in any of the above three criminal cases and is not part of any criminal activity. The motion sought return of dozens of items including money, deeds, trailers, truck, boats, cars, kayaks, documents, jewelry, camera, flatware, etc. Upon receipt of Horn’s motion, the trial court entered an Order to Show Cause directing the State to respond to the allegations in the motion. In its response, the State requested the circuit court to deny Horn’s motion without conducting a hearing because “there is potential that the case would need to be retried and the items of evidence would potentially be used at trial and not subject to return until all appeals are exhausted.” The State was referring to two postconviction proceedings which have since been resolved. The court denied the motion without conducting a hearing. In its order, the court wrote: [T]he defendant is not entitled to relief. In particular, the items for which the defendant seeks return have been entered into evidence in case numbers 2012-CF-372 or 2013-CF-278. In other words, such items are being held for evidentiary purposes, especially considering the defendant continues to challenge his judgment and sentence in postconviction proceedings. The court attached copies of the Evidence Data Sheets in the above two cases to its order. This Court has established the following standards regarding a return of property motion: The defendant must file a timely motion alleging three things: that the property is exclusively his own, that it was not the fruit of illegal activity, and that it is not being held for evidentiary purposes. If the motion is facially sufficient, the court may issue an order to show cause to the State to assist the court in determining whether the defendant’s allegations can be conclusively 2 refuted. If the court is unable to conclusively refute the defendant’s allegations, an evidentiary hearing is required before a court denies a motion for return of property. Bailey v. State, 93 So. 3d 518, 519 (Fla. 1st DCA 2012) (citing Sanchez v. State, 88 So.3d 389 (Fla. 4th DCA 2012)). See also Raffone v. Fort Lauderdale Police Dep’t, 731 So. 2d 94 (Fla. 4th DCA 1999) (reversing summary denial of motion for return of property and remanding for evidentiary hearing to determine ownership issues, status and location of seized property, and whether valid basis, if any, exists for permitting retention of the property by seizing agency); Calavenzo v. State, 695 So. 2d 857 (Fla. 4th DCA 1997) (reversing summary denial of motion for return of property and remanding for evidentiary hearing to determine ownership issues, whether any of petitioner’s property was no longer needed and should be returned, and whether the sheriff's office in possession of petitioner’s property). The defendant’s allegations were not conclusively refuted for several reasons. The evidence listed on the data sheets concerns drugs, pills, paraphernalia, prescriptions, etc. and does not match the property requested to be returned. Additionally, even if the property did match that listed on the evidence sheet the fact that property was previously entered into evidence at the trial level is insufficient to deny the motion without a hearing. Bailey, 93 So. 3d at 519. Rather, the State must show a continuing need for the property. Id.; Thomas v. State, 997 So. 2d 476 (Fla. 1st DCA 2008). The trial court relied on postconviction proceedings to support the state’s assertion of a continuing need for the property but “[o]nce direct appeal concludes . . . the trial court cannot rely on the state’s unsupported assertion that it needs to retain private property.” McKeever v. State, 764 So. 2d 688, 689 (Fla. 1st DCA 2000). Further, Horn’s pending postconviction appeals have been resolved. “[I]n the absence of pending postconviction proceedings that involve the [property] and its claimed evidentiary value, the defendant’s past history of postconviction filings is insufficient to conclusively refute the allegations of defendant’s motion and establish the State’s continued need to retain the [property] . . . years after defendant’s convictions were affirmed on appeal.” Matos v. State, 190 So. 3d 115, 117 (Fla. 4th DCA 2015). 3 Even where the trial court properly denied the motion for return of property during a pending appeal, once the pending appeal has concluded the matter is remanded back to the trial court to consider the motion for return of property on the merits. See Horn v. State, 190 So. 3d 202, 203 (Fla. 1st DCA 2016); Rightmire v. State, 1 So. 3d 1191 (Fla. 1st DCA 2009). Therefore, we reverse and remand for an evidentiary hearing to provide the defendant an opportunity to prove 1) whether the property is exclusively his own, 2) that the property was not the fruit of illegal activity, and 3) that the property is not being held for continuing evidentiary purposes. REVERSED and REMANDED. LEWIS, WINOKUR, and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Luther Arthur Horn III, pro se, Appellant. Ashley Moody, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee. 4