       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 19, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D14-463
                         Lower Tribunal No. 11-28885
                             ________________


                          Jorge Alberto Gonzalez,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal under Florida Rule of Appellate Procedure 9.315(a) from the
Circuit Court for Miami-Dade County, Teresa Mary Pooler, Judge.

     Jorge Alberto Gonzalez, in proper person.

      Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant
Attorney General, for appellee.


Before SHEPHERD, C.J., and EMAS and LOGUE, JJ.

     EMAS, J.
      We affirm the trial court’s denial of Gonzalez’s motion, filed in a criminal

proceeding but pursuant to Florida Rule of Civil Procedure 1.540, seeking to

vacate a July 2013 order which returned certain personal property to its rightful

owner. Gonzalez filed his motion in January 2014, asserting that he was unaware

of this July 2013 order,1 and further asserting that he is the rightful owner of the

property.

      The State argues that Gonzalez was not permitted to invoke rule 1.540 in the

criminal proceeding below.      However, we need not reach that issue (or the

additional merits arguments made by the State) as we hold that the trial court no

longer had jurisdiction over the personal property at issue.

      A trial court’s jurisdiction over a criminal proceeding includes the inherent

authority over property seized or otherwise obtained in connection with the

proceeding and held by the court in custodia legis. See Garmire v. Red Lake, 265

So. 2d 2 (Fla. 1972); Sawyer v. Gable, 400 So. 2d 992 (Fla. 3d DCA 1981); Daniel

v. State, 991 So. 2d 421 (Fla. 5th DCA 2008). “This authority continues beyond

the termination of the prosecution, thus enabling the court to direct the return of



1 The order returning the property was based upon a motion filed by the rightful
owner of the property, as well as a joint motion of the State and Gonzalez. The
joint motion was signed by Gonzalez’s trial counsel on behalf of his client,
agreeing to the return of the property. Gonzalez asserted in his rule 1.540 motion
that he was unaware of any such agreement and did not give his counsel
permission to enter into an agreement for the return of the property.

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the property to its rightful owner.” Stevens v. State, 929 So. 2d 1197, 1198 (Fla.

2d DCA 2006).

      However, because the personal property in this case had been returned to its

rightful owner (a private citizen) pursuant to an order that was not appealed2, the

property is no longer held in custodia legis, and the trial court’s authority over that

property has terminated. See Brown v. State, 613 So. 2d 569 (Fla. 2d DCA 1993);

Heinrich v. Johnson, 549 So. 2d 1187 (Fla. 2d DCA 1989). See also State ex rel.

Gerstein v. Durant, 348 So. 2d 405, 407 (Fla. 3d DCA 1977) (applying section

812.061, Florida Statutes and holding that an application for return of property

“may not be made when the property sought to be returned is not held in custodia

legis within the territorial jurisdiction of the court.”). We express no opinion

whether Gonzalez may properly pursue an alternative remedy through an original

proceeding in civil court or otherwise; we hold merely that he may no longer seek

such relief through motion or pleading in the criminal proceeding.

2 Gonzalez argues that because his criminal conviction in case number F11-28885
is currently on direct appeal, the trial court should have abated the motion for
return of property pending the outcome of his direct appeal. See Davies v. State,
934 So. 2d 606 (Fla. 5th DCA 2006). However, the returned property was not
related to, or held as evidence for, the case in which Gonzalez was convicted (and
is currently appealing). Rather, the order directed return of property stemming
from an earlier offense involving Gonzalez, but unrelated to the charges in F11-
28885. This earlier offense was “no actioned” by the State; following termination
of that prosecution, and upon motion by the rightful owner and pursuant to an
agreement of the parties, the court issued its order (though issued, apparently
inadvertently, under case number F11-28885) releasing the property from police
custody and returning it to its rightful owner.

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AFFIRMED.




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