Alvarez v. State

District Court of Appeal of Florida

Alvarez v. State

485 So. 2d 470, 11 Fla. L. Weekly 681, 1986 Fla. App. LEXIS 6953

District Court of Appeal of Florida·Decided March 18, 1986·No. No. 85-1650·Published·Cited by 3 cases

Opinion

PER CURIAM.

Alvarez appeals an order denying his motion for return of property. We reverse.

On April 6, 1984, Alvarez was arrested on a charge of aggravated assault and his semiautomatic pistol was confiscated as evidence. On May 11,1984, the state filed an information charging aggravated assault. The state, however, announced a nolle pro-sequi on February 11, 1985. On April 9, 1985, after the speedy trial time had expired, Alvarez moved, pursuant to section 790.08(3) of the Florida Statutes (1983),¹ for return of the semiautomatic pistol. The trial judge denied the motion indicating that despite the statute it was her policy not to return guns.

The state argues that because Alvarez was not acquitted and because the charges were not dismissed, section 790.08(3) does not apply. We disagree. Were the state to file new charges, it is clear that Alvarez could successfully move for discharge on speedy trial grounds. Fla.R.Crim.P. 3.191(a)(1), (d)(1), (i). The state’s nolle pro-sequi does not avoid the effect of the rule. Fla.R.Crim.P. 3.191(h)(1), (2). It is senseless to require Alvarez to await this fruitless, and unlikely, act on the state’s part in order to obtain the return of his property under section 790.08(3). Where, as here, the state is forever barred from prosecuting an individual for offenses arising out of the incident during which the property was confiscated, section 790.08(3) mandates return of his property upon proper and timely motion. See Carneiro v. State, 464 So.2d 639 (Fla. 3d DCA 1985). Accordingly, the [471] order denying Alvarez’ motion for return of property is

Reversed.

Footnotes

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PER CURIAM.

Alvarez appeals an order denying his motion for return of property. We reverse.

On April 6, 1984, Alvarez was arrested on a charge of aggravated assault and his semiautomatic pistol was confiscated as evidence. On May 11,1984, the state filed an information charging aggravated assault. The state, however, announced a nolle pro-sequi on February 11, 1985. On April 9, 1985, after the speedy trial time had expired, Alvarez moved, pursuant to section 790.08(3) of the Florida Statutes (1983),¹ for return of the semiautomatic pistol. The trial judge denied the motion indicating that despite the statute it was her policy not to return guns.

The state argues that because Alvarez was not acquitted and because the charges were not dismissed, section 790.08(3) does not apply. We disagree. Were the state to file new charges, it is clear that Alvarez could successfully move for discharge on speedy trial grounds. Fla.R.Crim.P. 3.191(a)(1), (d)(1), (i). The state’s nolle pro-sequi does not avoid the effect of the rule. Fla.R.Crim.P. 3.191(h)(1), (2). It is senseless to require Alvarez to await this fruitless, and unlikely, act on the state’s part in order to obtain the return of his property under section 790.08(3). Where, as here, the state is forever barred from prosecuting an individual for offenses arising out of the incident during which the property was confiscated, section 790.08(3) mandates return of his property upon proper and timely motion. See Carneiro v. State, 464 So.2d 639 (Fla. 3d DCA 1985). Accordingly, the [471] order denying Alvarez’ motion for return of property is

Reversed.

Footnotes

Alvarez v. State, 485 So. 2d 470, 11 Fla. L. Weekly 681, 1986 Fla. App. LEXIS 6953 (Fla. Ct. App. 1986).

Pincite

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Opinion

Footnotes

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