       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                                 SCOTT AREL,
                                   Appellant,

                                       v.

                           STATE OF FLORIDA,
                                Appellee.

                                 No. 4D14-1464

                             [March 18, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No. 09-010936
CF10B.

   Scott Arel, Milton, pro se.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble,
Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

   The defendant appeals from the circuit court’s order summarily
denying his motion to return property. The defendant argues, among other
things, that the court, in denying his motion, erred by not identifying any
deficiencies in his motion and not granting him leave to amend his motion
within a reasonable time. We agree with this argument and reverse.

    The defendant’s motion, drafted on a pre-printed form, described his
alleged property as: “4 (four) full pages of property, Jewelry, High School
Ring, Ect, [sic].” The motion stated that this property was taken from him
“[p]ursuant to a search incidental to arrest and/or an inventory search,”
and that the property “was seized and held as evidence” by four named
officers/deputies “of the Broward Police Department / Sheriff’s Office.”

   The state, in its response, argued that the court should summarily deny
the motion because:

      Defendant’s motion asserts such property is held by Broward
      Sheriff’s Department Officers. Defendant does not assert that
      such property is being held by the clerk of this Court, or by
      the State Attorney’s Office. Accordingly, Defendant should
      seek relief from the [BSO].

The state also argued that the defendant’s motion did not specifically
identify his property, but instead “assert[ed] that mostly unspecified items
of property were obtained.” (footnote omitted).

   The court denied the defendant’s motion for the reasons contained in
the state’s response, which the court incorporated in its order by reference.

   This appeal followed. We agree with the defendant’s argument that the
court, in denying his motion, erred by not identifying any deficiencies in
his motion and not granting him leave to amend his motion within a
reasonable time.

   “A facially sufficient motion for return of property must specifically
identify the property and allege that it is the movant’s personal property,
that it is not the fruit of criminal activity, and that it is not being held as
evidence.” West v. State, 35 So. 3d 175, 176 (Fla. 2d DCA 2010) (citation
omitted). “If the court dismisses the motion as facially insufficient, it shall
identify the deficiencies and grant [the defendant] leave to amend within a
reasonable time.” Wilson v. State, 957 So. 2d 1264, 1265 (Fla. 2d DCA
2007) (citations omitted).

   Here, the defendant’s motion was facially insufficient. The motion did
not allege that the property was not being held in evidence, did not allege
that the property at issue was not the fruit of criminal activity, and did not
specifically identify all of the defendant’s alleged property. Instead, the
motion summarily listed the property as: “4 (four) full pages of property,
Jewelry, High School Ring, Ect, [sic].” (emphasis added). Because of these
facial deficiencies, the circuit court, in denying the defendant’s motion,
should have identified the deficiencies and granted the defendant leave to
amend within a reasonable time. We remand for this purpose.

   For purposes of remand, we note the lack of merit in the state’s
argument to the circuit court that the defendant’s motion was facially
insufficient because it “assert[ed] such property is held by Broward
Sheriff’s Department Officers” and “[did] not assert that such property is
being held by the clerk of [the circuit] Court, or by the State Attorney’s
Office.” Such a distinction is not relevant to the court’s jurisdiction over
the seized property. See Bolden v. State, 875 So. 2d 780, 782 (Fla. 2d DCA
2004) (“When a trial court assumes jurisdiction over criminal charges, it
has inherent authority to assist the true owner in the recovery of property

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that has been seized from the defendant,” including when the defendant
seeks return of seized property) (citations omitted).

   We also note the lack of merit in the state’s argument to this court that
because more than sixty days have passed since the conclusion of the
defendant’s underlying case, he no longer has a claim to his alleged
property, and therefore should not be permitted to amend his motion. See
§ 705.105(1), Fla. Stat. (2013) (“Title to unclaimed evidence or unclaimed
tangible personal property lawfully seized pursuant to a lawful
investigation in the custody of the court or clerk of the court from a
criminal proceeding or seized as evidence by and in the custody of a law
enforcement agency shall vest permanently in the law enforcement agency
60 days after the conclusion of the proceeding.”); Sarmiento v. State, 816
So. 2d 826, 827 (Fla. 3d DCA 2002) (affirming order denying a defendant’s
petition for the return of his property where the defendant did not file his
petition within sixty days of his criminal proceeding’s conclusion as
section 705.105(1) requires). The state’s argument lacks merit because
the defendant timely filed his original motion. See Schwenn v. State, 958
So. 2d 531, 533 (Fla. 4th DCA 2007) (“If a motion is dismissed or stricken
with leave to amend, then the amendment would relate back to the original
motion and would be timely.”) (citation omitted).

   Because we have concluded that the circuit court, in denying the
defendant’s facially insufficient motion, should have identified the
deficiencies and granted the defendant leave to amend within a reasonable
time, we do not reach the defendant’s premature argument that the court
should have held an evidentiary hearing on the motion. See West, 35 So.
3d at 176 (“If the allegations are deemed sufficient, the court is obliged to
provide an evidentiary hearing to determine whether the property is in the
custody of the sheriff’s office and should be returned to the movant.”)
(emphasis added; citation omitted).

   Reversed and remanded.

WARNER and MAY, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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