McKinnon v. State

752 So. 2d 134, 2000 WL 257829

Opinion

752 So.2d 134 (2000)

Johnny McKINNON, Appellant,
v.
STATE of Florida, Appellee.

No. 2D99-4255.

District Court of Appeal of Florida, Second District.

March 8, 2000.

PER CURIAM.

Johnny McKinnon appeals the trial court's order summarily denying his motion for return of property as untimely pursuant to section 705.105, Florida Statutes (1999). Because it is not clear from the record that section 705.105 applies to this case, we reverse and remand for an evidentiary hearing. See Stevenson v. State, 688 So.2d 962 (Fla. 5th DCA 1997). On remand the court shall determine whether or not the property at issue was "unclaimed evidence or unclaimed tangible personal property lawfully seized pursuant to a lawful investigation in the custody of the court or clerk of court from a criminal proceeding or seized as evidence by and in the custody of a law enforcement agency." See § 705.105. Unless the court determines that the property was seized or held as evidence by the law enforcement agency involved or that it was seized pursuant to an investigation and was in the custody of the court clerk, it must order its immediate return to Mr. McKinnon. See Stevenson, 688 So.2d at 963.

Reversed and remanded for an evidentiary hearing.

BLUE, A.C.J., and NORTHCUTT and CASANUEVA, JJ., Concur.