       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 18, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2754
                         Lower Tribunal No. 10-24204
                             ________________


                               Calvin Watkins,
                                    Appellant,

                                          vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Stacy D. Glick,
Judge.

      Calvin Watkins, in proper person.

      Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant
Attorney General, for appellee.

Before LAGOA, EMAS and SCALES, JJ.

      SCALES, J.

      Appellant Calvin Watkins appeals an unelaborated January 27, 2016 trial

court order denying what appears to be Watkins’s third motion seeking an order
requiring the Miami-Dade Police Department to return Watkins’s personal

property1 that was apparently seized during an arrest of Watkins in August of

2010. We reverse the order on appeal and remand to the trial court for proceedings

to specify any insufficiency in Watkins’s December 30, 2015 motion, and to allow

Watkins a reasonable time to file an amended motion. If, on remand, the State

continues to take the position that Watkins has not timely sought the return of the

property seized during his August 2010 arrest, then the trial court, because of the

conflicting evidence, shall conduct an evidentiary hearing to determine the

timeliness issue and shall proceed to adjudicate Watkins’s motion. We also instruct

the trial court to appoint counsel for Watkins for the remand proceedings, and

order the parties to ensure that the Miami-Dade Police Department receives notice

of all remand proceedings.

      I. Facts

      Watkins was arrested on August 19, 2010, by the Miami-Dade Police

Department and, by amended information in 2012, Watkins was charged with

several counts of fraud and grand theft. The State dismissed these charges on April

13, 2015.



1 The record reflects a property receipt that catalogues numerous items of
expensive clothing. Watkins also maintains that the police seized additional
personal property, including laptop computers, watches, a wallet and its contents,
and additional items.

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      The lower court docket reflects that, during the pendency of the charges

against him, Watkins, through counsel, filed two motions seeking an order

requiring the Miami-Dade Police Department to return Watkins’s personal

property that was seized by the department when Watkins was arrested. It appears

that the first motion, filed on or about June 15, 2011, was set for hearing on June

24, 2011. The notice of hearing for the first motion, though, contains a handwritten

notation that the hearing was “reset” to “July 20.” It is unclear from the limited

record before us whether this motion was ever adjudicated.

      The second motion, filed on or about June 25, 2013, contains a handwritten

notation at the bottom of the motion indicating that the motion was “Denied w/out

prejudice” on that date (i.e., June 25, 2013). Both motions specifically allege that

the seized property belongs to Watkins, and the June 2013 motion specifically

alleges that the seized items “have no possible evidentiary value to the State of

Florida.”

      After the April 13, 2015 dismissal of the charges against Watkins, Watkins

sent a letter, dated November 27, 2015, to the Miami-Dade Police Department

asking for the return of his belongings. The police responded by sending Watkins

two letters.

      The first letter, dated December 10, 2015, informed Watkins that he must

obtain “(a) Court Order specifying the individual who is to receive the property”



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and that “proof of ownership needs to be submitted when the Motion for Return of

property is filed.” This letter goes on to advise Watkins that “(t)he Property and

Evidence Section needs to receive a copy of the Motion and an original certified

copy of the Court Order.” Finally, this letter advises Watkins that he has “60 days

from the date on this letter to obtain a Court Order for the return of the property. If

you do not obtain the Court Order in the specified time, ownership of said property

shall be vested to the Miami-Dade Police Department.”

         The second letter, dated December 30, 2015, informed Watkins of the

correct police case number for the matter, and also enclosed copies of the property

receipts listing the items in the police department’s care.

         Watkins responded to the police department’s letters on December 30, 2015

by filing a third motion seeking the return of his property.2 This third motion, filed

by Watkins pro se, makes the same general allegations as Watkins’s previous two

motions, and also alleges that several items that are not reflected on the property

receipts were also seized by the police department during Watkins’s August 2010

arrest. This third motion also makes the following specific allegation:

         As no criminal charges were filed in connection with the
         aforementioned property and the case which initiated seizure of said
         property was nolle prosequi and dismissed and further investigation
         via FDLE databases and the like resulted in no stolen items reports,
         ownership defaults to the defendant as no proof of unlawful
         possession or gain existed.

2   This third motion was received by the trial court on January 8, 2016.

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       The trial court summarily denied this motion in an unelaborated order dated

January 27, 2016. In this form order, the trial court checked a box indicating that

Watkins’s pro se motion is “insufficient.” It is from this January 27, 2016 order

that Watkins appeals.3

      II. Analysis

          a. Sufficiency of Motion

      While the Florida Supreme Court has not adopted a formal rule of criminal

procedure prescribing the requisites and timing of a criminal defendant’s motion to

return property seized in an arrest, Florida case law suggests that such a motion

should follow the same procedures as a motion for post-conviction relief. Bolden

v. State, 875 So. 2d 780, 782 n.3 (Fla. 2d DCA 2004). Florida’s appellate courts

have concluded that, to be facially sufficient, the motion must allege three things

regarding the seized property: (1) that it is exclusively the movant’s own property;

(2) that it was not the fruit of illegal activity; and (3) that it is not being held for

evidentiary purposes. Bailey v. State, 93 So. 3d 518, 519 (Fla. 1st DCA 2012).

Florida case law requires that, if a motion for the return of property is not


3 While not necessarily relevant to this appeal, it appears from the docket that, on
February 3, 2016, Watkins, again pro se, filed another motion, his fourth, seeking
the return of his property. On February 19, 2016, the trial court entered an order
striking this fourth motion as successive. Because we reverse the trial court’s
January 27, 2016 order, we necessarily quash this February 19, 2016 order.

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sufficiently pled, the trial court, prior to entering a final order denying the motion,

must first identify the deficiencies and allow the movant an opportunity to amend

the motion within a reasonable time. Miguel v. State, 209 So. 3d 66, 67 (Fla. 3d

DCA 2016); Arel v. State, 160 So. 3d 104, 105-06 (Fla. 4th DCA 2015); Wilson v.

State, 957 So. 2d 1264, 1265 (Fla. 2d DCA 2007). If the trial court finds the

motion to be facially sufficient, then it may order the State to cite applicable law

and to attach portions of the record to refute the claimant’s contention or, in the

alternative, it may hold an evidentiary hearing. Bolden at 782-83.4

      In its January 27, 2016 order, the trial court ruled only that Watkins’s

December 30, 2015 motion was “insufficient.” The trial court should have

identified why the motion was insufficient and granted Watkins leave to amend his

motion within a reasonable time. Miguel, 209 So. 3d at 67. The trial court’s failure

to follow this procedure requires reversal, and a remand for the trial court to

specify any insufficiency in Watkins’s motion.5 Arel, 160 So. 3d at 106.

          b. Timeliness of Motion



4 If a trial court summarily denies such a motion on the merits, similar to an order
summarily denying a post-conviction motion, the order must attach to it those
portions of the record conclusively establishing that the movant is entitled to no
relief. Dawson v. State, 104 So. 3d 1290, 1290 (Fla. 2d DCA 2013).
5 We express no opinion as to whether the trial court, in determining the
sufficiency of Watkins’s December 30, 2015 motion, may consider allegations
contained in Watkins’s prior motions.

                                          6
         While the order on appeal does not address whether Watkins’s December

30, 2016 motion was timely, the State, in its answer brief to this Court, argues that

we can and should conclude, as a matter of law, that Watkins’s December 30, 2015

motion is untimely.

         As mentioned above, the Florida Supreme Court has not adopted a criminal

procedure rule governing the timing of a defendant’s motion seeking the return of

seized property. The analysis, though, of this procedural timing issue is informed,

if not governed, by section 705.105(1) of the Florida Statutes.6 This substantive

statute vests title to “unclaimed evidence” in the law enforcement agency “60 days

after the conclusion of the proceeding.” Section 705.101(6) of the Florida Statutes

defines “unclaimed evidence” in relevant part as “any tangible personal property . .

. which . . . is retained by the law enforcement agency or the clerk of the county or

circuit court for 60 days after the final disposition of the proceeding and to which

no claim of ownership has been made.” § 705.101(6), Fla. Stat. (2016) (emphasis

added).

6   Section 705.105(1) reads, in its entirety, as follows:

         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.

§ 705.105(1), Fla. Stat. (2016).

                                             7
       Hence, from a procedural standpoint, it logically follows that a motion

seeking the return of “unclaimed evidence” must be filed prior to the date that title

to the property permanently vests in the law enforcement agency, i.e., at least 60

days prior to the “conclusion of the proceeding.” Thus, a motion filed more than

sixty days after the conclusion of the criminal proceeding is untimely. Romero-

Saavedra v. State, 735 So. 2d 1290, 1290-1291 (Fla. 3d DCA 1999).

      In this case, the State argues that the proceedings in Watkins’s criminal case

were concluded on April 13, 2015, when the State dismissed the criminal charges

against Watkins; therefore, the State argues, Watkins’s motion was required to be

filed prior to June 13, 2015 (within 60 days after the conclusion of the criminal

proceedings against Watkins), and, because Watkins’s motion was not filed until

December 30, 2015, this motion is untimely. Importantly, though, not only was the

timeliness issue not raised or adjudicated below, the State’s brief does not mention,

much less acknowledge, Watkins’s two prior motions, filed in June 2011 and June

2013. Nor does the State’s brief analyze what effect, if any, these two prior

motions have on the timeliness issue.

      As mentioned above, several Florida cases hold that a motion seeking the

return of property filed after title has permanently vested to the law enforcement

agency is untimely. Id.; Bailey, 93 So. 3d at 519. We have been unable, however,

to find a case dealing with the situation presented here, that is, where a movant has



                                         8
made a claim of ownership to property by filing a motion in the trial court prior to

the conclusion of the proceedings.7 Further complicating the timeliness issue in

this case: (1) the Miami-Dade Police Department’s letter specifically instructs

Watkins that he has 60 days from the Department’s December 10, 2015 letter to

file his motion; (2) Watkins’s June 2011 motion seeking return of the property

does not appear to have been adjudicated; and (3) Watkins’s June 2013 motion

seeking return of the property was apparently denied “without prejudice” while the

record is unclear as to what further proceedings were contemplated after this

adjudication.8 Simply put, issues abound regarding timeliness; therefore, we

decline the State’s invitation to adjudicate the timeliness issue on the scant record

before us.

      If, on remand, the State takes the position, as it has on appeal, that Watkins

has not timely sought return of the items seized in his August 2010 arrest, the trial

court needs to adjudicate that issue in the first instance; and we assume that, for the

trial court to address this issue appropriately, an evidentiary hearing is required.

          c. Appointment of Counsel/Notification of the Department


7 We express no opinion as to whether such a motion constitutes a “claim of
ownership” to the seized property so that the property would not be “unclaimed
evidence,” as defined in section 705.101(6) of the Florida Statutes.
8We  express no opinion as to whether allegations in Watkins’s December 2015
motion would relate back to either of Watkins’s prior motions.


                                           9
        We recognize that on remand several complicated factual issues and novel

legal issues regarding both sufficiency and timeliness might be implicated and

argued. We, therefore, order the trial court to appoint counsel for Watkins to assist

in the procedures on remand. We also order the parties to apprise the Miami-Dade

Police Department of all proceedings on remand. In furtherance of that directive,

the Clerk of this Court shall forward a copy of this Opinion, along with the

mandate to follow, to the Miami-Dade Police Department.

   III. Conclusion

      We reverse the trial court’s January 26, 2016 unelaborated order denying, as

“insufficient,” Watkins’s December 30, 2015 motion seeking the return of the

property seized by the Miami-Dade Police Department during its August 2010

arrest of Watkins. We also quash the trial court’s February 19, 2016 order denying,

as successive, Watkins’s February 3, 2016 motion. We remand to the trial court to

specify any insufficiency in Watkins’s motion, and to allow Watkins thereafter a

reasonable opportunity to amend the motion. If, on remand, the State continues to

take the position that Watkins has not timely sought the return of the property

seized during his August 2010 arrest, then the trial court, because of the conflicting

evidence, shall conduct an evidentiary hearing to determine the timeliness issue

and shall proceed to adjudicate Watkins’s motion. The trial court shall appoint

counsel to represent Watkins in the proceedings on remand. The parties shall



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notify the Miami-Dade Police Department of the proceedings on remand and, in

furtherance of this directive, the Clerk of this Court shall forward a copy of this

Opinion, along with the mandate to follow, to the Miami-Dade Police Department.

      Reversed and remanded with instructions.




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