       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          CHARLES JOHNSON,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D16-2840

                           [December 6, 2017]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; James W. McCann, Judge; L.T. Case No.
562007CF001396A.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.

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

                  ON APPELLEE’S MOTION FOR REHEARING

GERBER, C.J.

   We grant appellee’s motion for rehearing, withdraw our opinion issued
on August 30, 2017, and substitute the following opinion in its place.

    The defendant appeals from the trial court’s order denying his motion
for return of property. The defendant argues the court erred in summarily
denying his motion without an evidentiary hearing, because his motion
was facially sufficient and his allegations were not refuted. We agree with
the defendant’s argument. We reverse for an evidentiary hearing.

                           Procedural History

    The defendant was convicted of burglary of a conveyance, first degree
petit theft, criminal mischief over $200 but less than $1,000, driving while
license suspended as a habitual offender, and possession of twenty grams
or less of cannabis. The burglary, theft, and mischief charges arose from
the defendant breaking into a woman’s car and stealing her purse out of
the car. The defendant fled in a car which had been rented to the
defendant’s girlfriend, but which he did not have permission to drive. The
defendant later abandoned the rental car. From the rental car, the police
recovered the woman’s cell phone, purse, and items from her purse. The
habitual offender and cannabis charges arose from the defendant’s driving
away in the rental car, which contained marijuana. The defendant was
not convicted of any crime related to using the rental car without
permission.

   After the defendant served his sentence, he filed a motion for return of
property. In the motion, the defendant alleged the police seized his
personal property during his arrest, the property was not needed as
evidence because he had served his sentence, and the property was not
the fruit of criminal activity. The defendant alleged his property as a
Samsung cell phone, $15.00, four GPS systems, Cartier glasses, clothing,
a red Cartier case, and “all other miscellaneous items not included in this
motion.”

   The trial court issued an order seeking a response from the state and
the police department which arrested the defendant.          The police
department responded. In the response, the police department argued the
defendant’s motion was legally insufficient:

          The defendant does not describe all of the property that he
      seeks the return of with specificity. He first references a
      Samsung cell phone, this is problematic given that the
      defendant was convicted of Burglary of a Conveyance and
      First Degree Petit Theft and a cell phone was listed as one of
      the stolen items in the State’s Information. . . . Additionally,
      the defendant claims rights to fifteen dollars in United States
      Currency, four GPS systems, Cartier glasses and case, and
      clothing. The defendant was in a rented car that his own
      girlfriend stated was taken without her consent. He then tried
      to abandon the car by giving the keys to an independent
      witness who just happened to be putting gas in her own car
      at the gas station the Defendant pulled into in an effort to
      evade law enforcement. . . . Lastly, the defendant claims rights
      to “all other miscellaneous items not included in this motion.”
      This is certainly legally insufficient as there is nothing specific
      about “miscellaneous” or addressing items not included in his
      motion and should be denied.



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         While, the defendant asserts that the property is not the
      fruit of criminal activity, his convictions for Burglary of a
      Conveyance and First Degree Petit Theft suggest otherwise.

    The police department attached to its response its probable cause
affidavit, inventory, incident report, and the state’s information. The
probable cause affidavit stated that the defendant stole the victim’s purse,
which contained her cellular phone. The inventory listed, among other
items recovered from the vehicle which the defendant was driving, various
GPS devices, a Samsung phone, and eyeglasses in a case.

    However, the incident report alleged that the police recovered two
cellular phones from the vehicle. According to the incident report, the
police dialed a phone number on one of the phones, and the burglary
victim’s husband answered. The incident report further alleged that the
victim’s husband met with the police and identified that phone and the
purse as belonging to the victim. According to the incident report, as the
police transported the defendant to the jail, he asked the police to bring
his phone with him. The incident report then stated: “[The defendant’s]
phone was one of the two phones recovered from the [vehicle] during the
initial investigation.” The incident report finally states that the police
denied the defendant’s request and instead stored his phone as evidence.

   The trial court summarily denied, without an evidentiary hearing, the
defendant’s motion to return property.

   This appeal followed. The defendant argues the court erred in
summarily denying his motion without an evidentiary hearing, because
his motion was facially sufficient and his allegations were not refuted.

   In response, the state essentially raises three arguments: (1) the
defendant’s conclusory allegations asserting that the property is his
personal property is insufficient to meet the defendant’s burden, especially
given that the property was seized from a vehicle which the defendant did
not have permission to drive; (2) although the incident report conceded
that one of the recovered phones belonged to the defendant, the incident
report did not specify the facts upon which the police determined that the
phone belonged to the defendant; and (3) although the state has not
pursued forfeiture proceedings against the defendant’s property, the state
intends to pursue forfeiture proceedings to satisfy the defendant’s unpaid
costs and fees.




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                                Our Review

    We are more persuaded by the defendant’s argument. The procedure
for a defendant to move for a return of property was described in Bolden
v. State, 875 So. 2d 780 (Fla. 2d DCA 2004), an opinion which we have
cited with approval. Sanchez v. State, 174 So. 3d 439, 442-43 (Fla. 4th
DCA 2015). In Bolden, our sister court described the procedure as follows:

          When the defendant seeks the return of seized property as
      the true owner, the applicable procedure is similar to the
      procedure for the consideration of a motion for postconviction
      relief. First, the defendant must file a facially sufficient
      motion for the return of property. To be facially sufficient, the
      motion must allege that the property at issue was his personal
      property, was not the fruit of criminal activity, and was not
      being held as evidence. Implicit in this standard is the
      requirement that the defendant must specifically identify
      property at issue. However, the defendant need not establish
      proof of ownership in order to allege a facially sufficient claim
      for the return of property.

          If the trial court finds that a motion to return property is
      facially sufficient, it may order the State to respond by citing
      applicable case law and attaching portions of the record to
      refute the defendant’s contention that the property should be
      returned, after which the motion may be summarily denied.
      In the alternative, the trial court may hold an evidentiary
      hearing. At the evidentiary hearing, the trial court must first
      ascertain whether the property was confiscated by a law
      enforcement agency in connection with a criminal prosecution
      and whether the property is still in the agency’s possession.
      If the State can show that the property was entered into
      evidence or that the State intends to pursue forfeiture against
      the property, the defendant is not entitled to have the property
      returned. Similarly, the defendant is not entitled to have the
      property returned if the State intends in good faith to bring
      another criminal prosecution at which the items would be
      admissible in 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] or to such person(s) as he may designate.



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Id. at 782-83 (emphasis added; footnotes, citations, and quotation marks
omitted).

   Here, the defendant’s motion was facially sufficient, except for his non-
specific claim as to “all other miscellaneous items not included in [his]
motion.” The defendant specifically identified the other property at issue
and alleged the property was his personal property, not the fruit of criminal
activity, and not being held as evidence because he had served his
sentence.

   The police department’s response and attachments did not refute the
defendant’s allegations. The incident report stated that one phone
belonged to the victim and the other phone belonged to the defendant. The
police department’s response and attachments do not allege that the
defendant’s phone, $15.00, four GPS systems, Cartier glasses and case,
and clothing were fruit of criminal activity, still being held as evidence, the
subject of forfeiture proceedings, evidence to be admitted in another
criminal prosecution, or subject to a superior possessory interest in the
property. Bolden, 875 So. 2d at 782.

   Contrary to the state’s response, it is not the defendant’s burden at the
pleading stage to establish the truth of the police’s determination that the
phone belonged to the defendant, or that the other specified items in fact
belong to him. That opportunity is to be afforded to the defendant at the
evidentiary hearing pursuant to Bolden. Similarly, if the state intends to
pursue forfeiture against the property, that also is a subject to be raised
at the evidentiary hearing pursuant to Bolden. If the defendant has any
defenses to the state’s intent to pursue forfeiture at this time, the
defendant may raise such defenses at the evidentiary hearing.

                                 Conclusion

   Based on the foregoing, we reverse the trial court’s order summarily
denying, without an evidentiary hearing, the defendant’s motion for return
of property, except for the defendant’s non-specific claim as to “all other
miscellaneous items not included in [his] motion.” We remand for an
evidentiary hearing pursuant to Bolden.

   Reversed and remanded for evidentiary hearing.

LEVINE and CONNER, JJ., concur.

                             *        *         *


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Not final until disposition of timely filed motion for rehearing.




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