Davies v. State

934 So. 2d 606, 2006 WL 2032425

Opinion

934 So.2d 606 (2006)

David L. DAVIES, Appellant,
v.
STATE of Florida, Appellee.

No. 5D05-3429.

District Court of Appeal of Florida, Fifth District.

July 21, 2006.

James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, J.

This is the appeal of the trial court's denial of Davies' motion for return of property seized pursuant to a criminal investigation. Davies pled to the charges and filed a motion for return of his property. He subsequently appealed his conviction. While the appeal was pending, the trial court denied the motion, correctly concluding that until the conviction was final, the defendant was not entitled to have the property returned. The conviction subsequently was affirmed.

Although it seems sensible to simply abate the trial court proceedings concerning the property until the judgment becomes final, in Sutherland v. State, 860 So.2d 505 (Fla. 4th DCA 2003), the court approved an outright denial. The trial court correctly followed Sutherland, but we think abatement in these circumstances would simplify issues of timeliness on the claimant's part and would avoid useless proceedings here and below. We accordingly remand this case to the trial court to reconsider the motion now that the conviction has been affirmed.

REMANDED.

PLEUS, C.J. and MONACO, J., concur.