These requirements only apply if the firearm was seized pursuant to section 933.14(3), Florida Statutes, where no arrest was made and no case has been established in the court system related to the seizure of the firearm.
Florida Statute Section 933.14 Return of property taken under search warrant.—
(3) No pistol or firearm taken by any officer with a search warrant or without a search warrant upon a view by the officer of a breach of the peace shall be returned except pursuant to an order of a trial court judge.Law enforcement agencies often site this provision after they illegal seize a firearm even when no “breach of the peace” occurred.
In many of these cases, the petitioner will hire an attorney. The attorney will contact legal counsel for the law enforcement agency in possession of the firearm(s). If the provisions of Section 933.14 then
the firearm can usually be returned to the owner without a court order.
If Section 933.14 applies, then the petitioner’s attorney and the legal counsel for the agency might agree on a stipulation and proposed order for the court to sign. The proposed order authorizes the release of a firearm and it must be attached to all stipulations presented to the court.
If the legal counsel for the agency and the petitioner’s attorney cannot reach an agreement for the return of the firearm, then the petitioner’s attorney will file a petition that requires a court hearing.
Filing the Petition for Return of a Firearm in Hillsborough County, FL
If the firearm was seized under Section 933.14(3), then the petitioner’s must also attach a copy of the agency report that describes the event(s) that lead to the seizure of the firearm(s).
A copy of the Petition for Return of Firearm and notice of hearing on the petition will be provided to the legal counsel for law enforcement agency in possession of the firearm(s) subject to the petition. One Petition for Return of Firearm(s) may seek the return of multiple firearms.
If a motion seeking return of a firearm is filed in an existing case being prosecuted in either a misdemeanor or felony division, then the motion for the return of the firearm will be considered by the judge in the respective court division.
If no previous case was established, then the administrative order provides:
Any person who seeks the return of a firearm seized by law enforcement under section 933.14(3), Florida Statutes, where no arrest was made and no case has been established in the court system must file a sworn Petition for Return of Firearms. The petition must identify the firearm and should further allege:
- the firearm is the petitioner’s personal property;
- the firearm was not involved in criminal activity;
- the firearm is not being held as evidence by the law enforcement agency;
- the petitioner is not disqualified under any state or federal law from possessing a firearm;
- the petitioner has not been convicted of a misdemeanor crime of domestic violence, or has not had an adjudication of guilt withheld or imposition of sentence suspended on any misdemeanor crime of domestic violence unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled or expunction has occurred;
- the petitioner has not been adjudicated mentally defective in section 790.065(2)(a)4.a., Florida Statutes, or if petitioner has been adjudicated mentally defective, petitioner has had his or her capacity restored by court order for at least 5 years and
- the petitioner has not been committed to a mental institution as defined in section 790.065(2)(a)4.b., Florida Statutes, or
- if petitioner has been committed to a mental institution, petitioner possesses a certificate from a licensed psychiatrist that he or she has not suffered a mental disability for at least 5 years since the commitment to a mental institution.
Other Types of Motions to Return Property in Criminal Cases
When an arrest is made or charges are filed, then the trial court's jurisdiction over a criminal proceeding includes the inherent authority over property seized or otherwise obtained in connection with the proceeding and held by the court in custodia legis. See Garmire v. Red Lake, 265 So.2d 2 (Fla.1972); Sawyer v. Gable, 400 So.2d 992 (Fla. 3d DCA 1981); Daniel v. State, 991 So.2d 421 (Fla. 5th DCA 2008).This authority continues beyond the termination of the prosecution which enabling the court to direct the return of the property to its rightful owner. See Stevens v. State, 929 So.2d 1197, 1198 (Fla. 2d DCA 2006).
A defendant is not required to file a separate suit for replevin or conversion when seeking to recover property seized in connection with his or her case. Instead, the procedure for a defendant to move to have his seized property returned to him is similar to that of a motion for post-conviction relief. Bolden v. State, 875 So.2d 780, 782 (Fla. 2d DCA 2004).
To reclaim seized property, “the defendant must file a facially sufficient motion for the return of property.” Id. If the motion is facially sufficient, the court “may order the State to respond” by refuting the defendant's arguments that the property should be returned. Id.
Once the “trial court has assumed jurisdiction over criminal charges, it is thereafter vested with an inherent power to assist the true owner in the recovery of property held in custodia legis.” Brown v. State, 613 So.2d 569, 570 (Fla. 2d DCA 1993).
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. Sanchez v. State, 88 So. 3d 389, 391 (Fla. 4th DCA 2012).
Alternatively, the defendant might bring an action for the return of property in civil court in a separate civil action for replevin or conversion. Under section 95.11(3), Florida Statutes, a four year civil statute of limitations for actions to recover personal property may apply to those cases.
