Motion for Return of Property in Florida
If a state or federal government agency confiscated your property, you can challenge that taking. The way you challenge the taking depends on several factors, including:
- which agency confiscated the property (state or federal);
- the legal authority the agency claims justifies the initial taking (state or federal, CAFRA or non-CAFRA)
- click here to read more about how to file a claim for federal forfeiture seizures under CAFRA
- click here to read more about non-CAFRA CBP federal seizures of imported or exported merchandise.
This article discusses what happens if a law enforcement officer in Florida took your property to hold as “evidence” in a pending case in state court. In those cases, you might need a criminal defense attorney to file a “motion for the return of the property” on your behalf at the conclusion of the proceedings.
The authority for the motion is found in Section 705.105(1), Florida Statutes, which provides:
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.
(Emphasis added). This means that if you do nothing, you lose any claim to the property 60 days after the conclusion of the proceeding. To be safe, this motion should be filed immediately after the proceedings are concluded (or even at the same time the case is being resolved) so there is no chance the court might deny it as untimely.
In these situations, within 60 days after the conclusion of the proceedings, the criminal defense attorney might file the following documents:
- Defendant’s Motion to Return Property;
- Notice of Hearing; and
- Proposed Order.
Special rules apply to motions for the return of firearms. After the motion is filed in the appropriate division, the attorney will contact the judicial assistant in that division so that a court date can be set for the consideration of the motion. The judicial assistants in each division have different policies and procedures that must be followed when these motions are filed and scheduled for a hearing.
After the judicial assistant clears the date, the criminal defense attorney will file a notice of hearing that is served on the State Attorney’s Office and the legal counsel for the law enforcement agency holding the property.
For these motions in Hillsborough County, the law enforcement agency holding the property might include either:
Hillsborough County Sheriff’s OfficeLegal Counsel
P.O. Box 3371
Tampa, FL 33602 Tampa Police Department
Legal/Forfeiture Unit
411 Franklin St.
Tampa, FL 33601
Misdemeanor cases are filed in the County Court, and felony cases are filed in the Circuit Court.
Sample Motion for Return of Property
IN THE COUNTY / CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CRIMINAL JUSTICE DIVISION
STATE OF FLORIDA, CASE NUMBER: __________
vs. DIVISION: _______
DEFENDANT.
DEFENDANT’S MOTION FOR RETURN OF PROPERTY
COMES NOW, the Defendant, through the undersigned counsel, and requests that this Honorable Court enter an order requiring the State of Florida, through the Tampa Police Department / Hillsborough County Sheriff’s Office, to return certain property to the defendant under Florida Statute Section 705.105. As grounds, Defendant makes the following showing:
- The Defendant was arrested on ____ by _______ (the agency).
- After the arrest, the agency seized certain property from the Defendant, including:
a. ______
b. ______ - The property is not contraband and is not being used as evidence in the underlying case.
- Allowing the agency to seize and maintain personal property without due process of the law violates the Defendant’s rights under the Constitutions of both the State of Florida and the United States of America.
- The proceedings were concluded when the judgment and sentence in this case became final on ______. Therefore, this motion is timely since it was filed within 60 days of the proceedings becoming final as required by Florida Statute Section 705.105(1).
- This motion is filed within y0 days of the conclusion of the proceedings.
WHEREFORE, Defendant, through counsel, respectfully requests this Honorable Court to enter its order requiring the State of Florida and the agency to return to the undersigned all personal property in their possession not found to be contraband or used as evidence in any criminal proceeding.
I HEREBY CERTIFY that a copy of the foregoing motion has been furnished to the Office of the State Attorney of the Thirteenth Judicial Circuit at _______ and the agency holding the property at _________, on this ___ day of 2024.
Deadlines for Filing a Motion for Return of Property
In Montero v States, 50 Fla. L. Weekly D206a (3rd DCA 2025), the defendant appealed from the Circuit Court for Miami-Dade County, FL, when the trial judge improperly denied his “motion for return of property” as untimely. Montero entered a plea on 2/2/24. At the time of the plea, the state was holding his property as evidence, including two gold link chains, a gold bracelet, an airplane amulet, a watch, and $9750 in cash taken from him at the time of his arrest. Montero filed a “motion for return of property” on 5/2/24. The trial court denied the motion as “untimely.” On appeal, the 3rd DCA reasoned that the “conclusion of the proceeding” to determine when the sixty-day period begins under Section 705.105(1) starts when the judgment and sentence become final. If no direct appeal is filed, the judgment and sentence become final thirty days after it is imposed. Therefore, the appellate court reversed the trial court’s ruling that the motion had been filed outside that 60 day deadline.
This article was last updated on Tuesday, January 21, 2025.