Motion for Return of Property in Florida Courts

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 used to justify 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.
  • the officer might seize the property for forfeiture under Florida law which requires compliance with the Florida Contraband Forfeiture Act.
  • a federal law enforcement officer might seize property for “temporary retention”
    • for example, agencies under CBP (CBP, HSI or ICE) might claim that under DHS directives, the temporary retention of an electronic device for an off-site forensic border search is legally classified as a detention, not a permanent seizure, but the seizing agent must comply with standard administrative requirements by issuing Form 6051-D (Chain of Custody) at the time of detention.

This article discusses what happens if a law enforcement officer at the state level in Florida took your property to hold as “evidence” in a pending case in state court, but never initiated forfeiture proceedings. 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 criminal proceedings.

The authority for the motion for return of property 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.

In the motion, be sure to allege that the property is your personal property, that you are the only person who owns that property, that the property is not the fruit of criminal activity, and that the property is not currently being held as evidence. See Justice v. State, 944 So. 2d 538, 539 (Fla. 2d DCA 2006).

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:

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 seizing law enforcement agency, to return certain property to the defendant under Florida Statute Section 705.105. As grounds, Defendant makes the following showing:

1. The Defendant was arrested on ____ by _______ (the agency).
2. On [insert date and time], law enforcement officers with [name the agency], while at [described the exact address, city/town, county and state where the property was seized], seized property from the Defendant (hereinafter “seized property”).
3. The seized property can be described as [describe the seized property in great detail].
4. The property is not contraband and is not being used as evidence in the underlying case.
5. The seized property is the personal property of the Defendant and he owns that property.
6. 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.
7. The proceedings were concluded when the judgment and sentence in this case became final on ______.
8. 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).

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 2026.

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.

The defendant 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.

The defendant 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 Thursday, June 4, 2026.