        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                          JEFFREY BURCH,
                             Appellant,

                                   v.

                         STATE OF FLORIDA,
                              Appellee.

                            No. 4D15-3616

                            [June 29, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Geoffrey Cohen, Judge; L.T. Case No. 14-9221 CF10A.

  H. Scott Hecker of H. Scott Hecker, P.A., Fort Lauderdale, for
appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, C.J.

    The appellant, Jeffrey Burch, appeals from a final order denying his
motion for return of property. Burch argues that the trial court abused
its discretion in refusing to return Burch’s property, which had been
taken from Burch upon his arrest and which property was not subject to
forfeiture or needed as evidence for any prosecution. We agree that the
order is deficient and reverse.

     The state formally charged Burch by information with aggravated
assault with a firearm, child abuse, and domestic battery. As part of his
pre-trial release, the defendant was ordered to surrender any firearms,
ammunition, and any concealed weapons permits to the nearest police
department. The state subsequently filed an amended information
charging Burch with aggravated assault with a firearm (Count I),
contributing to the delinquency of a minor (Count II), and battery (Count
III). After Burch pled no contest to Counts II and III and the state
dropped Count I, the trial court withheld adjudication as to Counts II
and III, and placed Burch on probation.
   During his probation, Burch filed a motion for return of property
requesting that all confiscated property, which consisted of items such as
weapons, ammunition, and body armor, be returned to a third party.
The Broward County Sheriff’s Office did not seek forfeiture of this
property and had no objection to the return of the property to the third
party.

    At the hearing on the motion for return of property, the trial court
noted that, according to the probable cause affidavit, Burch possessed a
firearm at the time of the alleged aggravated assault. The trial court then
denied the motion and indicated that the return of Burch’s property was
solely within the trial court’s discretion. The trial court further indicated
that it was not directly ordering the property to be forfeited or destroyed.
This appeal follows.

    The standard of review for the denial of a motion for return of property
is “similar to that of [the] standard on appeal of a postconviction motion.”
Sanchez v. State, 174 So. 3d 439, 442 (Fla. 4th DCA 2015). An appellate
court will not substitute its judgment for that of the trial court on
questions of fact, likewise on questions of the credibility of the witnesses
and the weight to be given to the evidence, as long as the trial court’s
findings are supported by competent, substantial evidence. Id. (citation
omitted).

    This court has previously stated that “[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.” Id. (citation omitted).

    We conclude that the trial court should have granted Burch’s motion
because a legal basis to deny it is not apparent. It appears that the trial
court made its determination based upon a charge that was later nolle
prossed by the state. The property confiscated from Burch was not
submitted into evidence in a criminal proceeding and the state did not
intend to pursue forfeiture against the property. Accordingly, the order
on appeal is reversed and remanded for the trial court to order its
immediate release or enter an order in which the trial court fully explains
its decision to deny the appellant’s motion.

   Reversed and remanded with instructions.

GERBER and LEVINE, JJ., concur.


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Not final until disposition of timely filed motion for rehearing.




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