       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

 JUAN SANCHEZ, a/k/a GEORGE RUIZ, a/k/a MIGUEL MARTINEZ,
                        Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D12-3639

                             [August 5, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judge; L.T. Case No. 06-
2004017383CF10B.

   Juan Sanchez, Miami, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

    Appellant challenges the trial court’s denial of his motion for return of
his property. The trial court concluded that appellant’s claim of ownership
of the personal property was not credible. We affirm, as the trial court has
the authority to deny a motion for return of property when, after
conducting an evidentiary hearing, it disbelieves the movant’s claim of
ownership of personal property.

   Sanchez was arrested in October 2004 and was charged with burglary
of a dwelling and unlawful use of a false name/ID. He entered a nolo
contendere plea and was adjudicated guilty. The background facts of his
crime are as follows. The victim was at home on his back patio when he
saw Sanchez inside his bedroom. When the victim opened the door
Sanchez was trying to take the computer, which he dropped. The victim
saw him flee into a green Ford Explorer. Police stopped Sanchez, and the
victim was brought to the stop location where he identified Sanchez as the
person in his home. Upon searching Sanchez, officers found nine rings, a
pair of earrings, and cash in Sanchez’s shoe. Five more rings, a bracelet
and a lock pick were found in one pants pocket, and nine watches were
found in his other pants pocket. The vehicle was searched at the time of
his arrest, and it contained two pillowcases which held, “jewelry, foreign
coins, foreign currency, clothing, [a] Playstation 2, wallets, electronic
organizer, cell phone, miscellaneous papers, perfume and a brown box.”
Subsequently, Sanchez was charged with burglary of an occupied
dwelling, possession of burglary tools, possession of stolen property and
obstruction for giving the officer a false name. As indicated above, he pled
nolo contendere to the burglary and false name/ID charge, was convicted,
and began serving his sentence.

    Later, Sanchez filed multiple motions for return of property which were
denied without an evidentiary hearing. His most recent motion for return
of property was denied on August 13, 2010, because the trial court
determined that Sanchez had not alleged sufficient proof of ownership of
the personal property.1 That case was appealed to this court in Sanchez
v. State, 88 So. 3d 389 (Fla. 4th DCA 2012). We reversed, as we concluded
that his motion and affidavit were sufficient to require the trial court to
hold an evidentiary hearing at which the court should determine:

      [W]hether the seized property belonged to Sanchez and
      whether it was being withheld for prosecutorial purposes.
      Even though the property was removed from a vehicle that did
      not belong to Sanchez, he should have been afforded an
      evidentiary hearing to ensure that he does not, in fact, have a
      possessory interest in those items. After the hearing, the trial
      court can then invoke its power to determine whether there is
      a valid basis to return the property to Sanchez.

Id. at 392.

   On remand the trial court conducted the required hearing. Sanchez
testified that he had an inventory sheet of what was taken, and he was
claiming only those items which were taken from his personal possession,
not the other items in pillow cases in the vehicle. The court asked him if
he owned the property, and he said he did and that it was not the fruit of
any criminal activity.


1 The issue of whether the statute of limitations had run does not appear to have
been raised in this case. Poux v. State, 985 So. 2d 1191, 1192 (Fla. 4th DCA
2008), acknowledges that section 95.11(3), Florida Statutes, provides a four-year
civil statute of limitations for actions to recover personal property.



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   The police department attorney recited the facts from the seizure, and
when police searched the vehicle they found nine rings, a pair of earrings,
and cash hidden in his shoe. She explained to the court, “We weren’t able
to show that those items were linked to this particular burglary, but at
this point they are preserved as evidence in potential other crimes that
may be associated with that we have not found the owner.” “We have not
received any proof of ownership—.” The court indicated that after eight
years, “I don’t think it’s [evidentiary proof of ownership] coming.” The
police department attorney reiterated “[I]t’s our position that . . . in the last
eight years, nothing has changed, that he has not shown that he is the
rightful owner of this property, and we would ask the Court to deny his
motion.”

   The assistant state attorney added that Sanchez had not been able to
provide any description for the items he was seeking and he “just hands
the Court a property receipt saying, okay, whatever’s there that was . . .
found on my person is mine.” The assistant state attorney argued that
even without a receipt to show ownership Sanchez should be able to
“describe those items or provide a description for those items and he is
unable to do even that.” He was “just providing an inventory of a number
of different items that happened to be found on his person, not including
two pillow cases full of items that were found in the car which he shared
with the codefendant[.]”

    Sanchez then stated that he previously had some receipts for some of
the watches when he came to the Broward County jail but that they had
been disposed of. The court asked what he was doing with nine watches
on his person and he responded, “I was evicted from my apartment, right,
and the stuff that was in the vehicle was mine only, but I’m not claiming
it because the State is saying the – I’m not entitled to it because the vehicle
was not registered under my name. . . . I’m just claiming what was on my
person.” He explained that he had been employed but didn’t have any
receipts for the personal property, noting, “Who keeps receipts for money
or jewelry or a shirt that you bought at the store? Nobody keeps receipts.”

   The police department’s attorney argued that Sanchez had not proven
ownership. Based upon the fact that he had been stopped for burglary of
an occupied dwelling, “any reasonable person wouldn’t believe that based
on the facts that are listed in the narrative that these items were his.” He
had $320 in cash hidden in his shoe. He had a pair of woman’s earrings,
nine rings, and multiple watches. Sanchez claimed that he had actually
been in possession of $3,200 when he was arrested.               The police
department attorney indicated that there had been only $320 on his
person.

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   The court did not accept Sanchez’s claims that the jewelry was his,
specifically ruling, “I do not believe your testimony that the jewelry was
yours, and I have made that credibility determination[.]” As to the
currency the court stated that it didn’t have any reason to disbelieve that
the currency was his. The court granted the motion for the return of the
$320 in currency but denied the motion as to the other property. Sanchez
now appeals.

    The applicable procedure for a motion for return of personal property
is similar to one for postconviction relief. See Bolden v. State, 875 So. 2d
780, 782 (Fla. 2d DCA 2004). A facially sufficient motion for return of
property must: 1) specifically describe the property at issue; 2) allege that
the property is the personal property of the movant; 3) allege that the
property was not the fruit of criminal activity; and 4) allege that the
property is not being held as evidence. West v. State, 35 So. 3d 175, 176
(Fla. 2d DCA 2010). As we noted in our prior opinion, Sanchez’s motion
was facially sufficient.

   If the motion is facially sufficient, the court “may order the State to
respond” by “refuting the defendant’s argument that the property should
be returned.” Sanchez, 88 So. 3d at 391. In an evidentiary hearing, the
“defendant is required to prove 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.” 88 So. 3d at 391. In our prior opinion we also
placed the burden on Sanchez to prove ownership of the property. Id. at
391. This is consistent with the procedure for postconviction relief where
the burden stays on the defendant to prove his or her claims at an
evidentiary hearing. See Pennington v. State, 34 So. 3d 151 (Fla. 1st DCA
2010); Williams v. State, 974 So. 2d 405, 407 (Fla. 2d DCA 2007).

    Our standard of review from an order on return of property is also
similar to that of our standard on appeal of a postconviction motion. See
Bolden. Following denial of a claim for postconviction relief after an
evidentiary hearing, the appellate court is required to give deference to the
trial court’s factual findings. “As long as the trial court’s findings [after an
evidentiary hearing] are supported by competent substantial evidence, [the
District Court] will not ‘substitute its judgment for that of the trial court
on questions of fact, likewise of the credibility of the witnesses as well as
the weight to be given to the evidence by the trial court.’” Jeantilus v. State,
944 So. 2d 500, 501 (Fla. 4th DCA 2006).

   Although Sanchez claims that he owned the personal property found
on his person, the trial court specifically found his testimony not credible.
Thus, he failed to prove the property was exclusively his own. The state

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presented the circumstances of his possession.             Certainly, the
circumstantial evidence of how and when this property was found calls
into question his bald statement of ownership, with nothing to back up his
claim. Giving the appropriate deference to the trial court’s credibility
findings, we conclude that the trial court had the discretion to reject his
claim of ownership and thus deny the return of property to him.

   Appellant relies on Bolden as support for reversal. While Bolden
provided the procedure to follow in motions for return of property, it did
not involve review after an evidentiary hearing. There, police seized
personal property from Bolden’s apartment, some of which was used in
his criminal prosecution for burglary and theft. Bolden filed a motion for
return of property which the trial court ultimately denied without an
evidentiary hearing, finding that Bolden had not proved ownership of the
items. The court returned to Bolden only those items which were
specifically identifiable as his, such as his social security card.

   In reversing the trial court’s order denying return, the Second District
noted that when a trial court determines that a facially sufficient motion
has been filed, the trial court must then determine whether the property
was confiscated by a law enforcement agency and is still in the agency’s
possession. The defendant is not entitled to return of property if the state
has entered the property into evidence in a criminal proceeding, is entitled
to proceed with forfeiture of the property, or intends in good faith to enter
another criminal prosecution in which the property will be admissible as
evidence. “However, if the state is ‘unable to connect the items to specific
criminal activity, and no one else can be identified who can demonstrate a
superior possessory interest in the property, it should be returned to [the
defendant.]’” Id. at 783. Nevertheless, the court reversed because the trial
court had required Bolden to assert in the motion facts showing his
ownership and failed to provide Bolden an evidentiary hearing on the
return. Thus, Bolden did not involve a trial court’s ruling at an evidentiary
hearing that a defendant did not own the property based upon a credibility
determination.

    Bolden cited Stone v. State, 630 So. 2d 660 (Fla. 2d DCA 1994), relied
on by Sanchez, but Stone also is distinguishable. There, the defendant,
who had been prosecuted on felony charges, demanded the return of items
seized by the police but not used as evidence against him. The court
denied the motion. In reversing, the Second District noted, “It is one thing
if a claimant can be located with a superior possessory interest in the
property, and quite another for the property to be withheld merely on
speculation that [the defendant] may have acquired it illegally.” 630 So.
2d at 660. Accordingly, in Stone, the court reversed for an evidentiary

                                     5
hearing where, if the court determined that the law enforcement agency
had possession of the property which was not used or intended to be used
in prosecution, and the state was “unable to connect the items to specific
criminal activity, and no one else can be identified who can demonstrate a
superior possessory interest in the property, it should be returned to Stone
or to such person(s) as he may designate.” Id. at 661. However, like
Bolden, Stone did not involve a determination of right of possession based
upon an evidentiary hearing and a trial court’s determination that a
defendant’s claim of ownership was not credible.

   Because of the deference we give the trial court’s credibility findings
after an evidentiary hearing on a motion for return of property, we affirm
the trial court’s denial of the motion.

   Affirmed.

LEVINE and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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