ANTONIO LUIS ALVAREZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Alvarez appeals the trial court's denial of his motion for return of a semiautomatic pistol confiscated during an arrest for aggravated assault. After the state entered a nolle prosequi, Alvarez moved for return of the weapon under Florida Statute 790.08(3). The court reversed, holding that where the state is barred from prosecuting the defendant, the statute mandates return of the property.
The court held that section 790.08(3) mandates return of property where the state is forever barred from prosecuting the defendant for offenses arising from the incident during which the property was confiscated, regardless of whether charges were formally dismissed or the defendant was acquitted.
[1] A defendant is entitled to the return of confiscated property when the state is forever barred from prosecuting offenses arising out of the incident during which the prop…
[2] A nolle prosequi does not avoid the effect of speedy trial rules when the speedy trial time has expired.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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.”
Establishes the core holding that the statute applies when prosecution is barred, not just upon acquittal or dismissal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAlvarez was arrested on April 6, 1984, for aggravated assault and his semiautomatic pistol was confiscated as evidence. The state filed an information…
The full statement of facts, procedural history, and disposition for this case are member content.
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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 order denying Alvarez’ motion for return of property is
Reversed.
. 790.08 Taking possession of weapons and arms; reports; disposition; custody.—
(3) If the person arrested as aforesaid is acquitted of the offenses mentioned in subsection (2), the said weapons, electric weapons or devices, or arms taken from him as aforesaid shall be returned to him; however, if he fails to call for or receive the same within 60 days from and after his acquittal or the dismissal of the charges against him, the same shall be delivered to the sheriff as aforesaid to be held by him as hereinafter provided. This subsection shall likewise apply to persons and their weapons, electric weapons or devices, or arms who have heretofore been acquitted or the charges against them dismissed.
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Cited By
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State v. Williams, 678 So. 2d 1356 (Fla. 3d DCA 1996)…ntessori School, Inc. v. State, 645 So. 2d 164 (Fla. 4th DCA 1994) (reversing order denying return of seized property where both criminal cases have terminated and the time to file a Rule 3.850 motion by the defendant has expired); Alvarez v. State, 485 So. 2d 470 (Fla. 3d DCA 1986) (reversing order denying return of seized property where defendant could no longer be prosecuted for offense due to the expiration of the speedy trial time). Rather, Rule 3.220(b)(1), Florida Rules of Criminal Procedure, provides…
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Tiller v. State, 650 So. 2d 1134 (Fla. 4th DCA 1995)…, Florida Statutes (1993), mandates the return of weapons seized when the person whose weapons were seized is acquitted or where the charges have been dismissed. See Carneiro v. State, 464 So. 2d [*1135] 639 (Fla. 3d DCA 1985), and Alvarez v. State, 485 So. 2d 470 (Fla. 3d DCA 1986). REVERSED AND REMANDED. HERSEY, GUNTHER and STEVENSON, JJ., concur.…
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DE LA Rosa v. State, 583 So. 2d 1122 (Fla. 3d DCA 1991)…sed on the State’s confession of error, with which we agree, the order under review is reversed and the cause is remanded with directions to grant the appellant’s motion for return of the handgun. See § 790.08(3), Fla.Stat. (1989); Alvarez v. State, 485 So. 2d 470 (Fla. 3d DCA 1986).…
Authorities Cited
- Carneiro v. State, 464 So. 2d 639 (Fla. 3d DCA 1985)