KARA O' CONNELL

v.

STATE OF FLORIDA

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Kimberly K. Fernandez, Judge. Kara O'Connell, pro se. PER CURIAM. Kara O'Connell appeals the order summarily denying her motion for return of seized property. We reverse and remand for further proceedings.

"When the defendant seeks the return of seized property as the true owner, the applicable procedure is similar to the procedure for the consideration of a motion for postconviction relief." Bolden v. State, 875 So. 2d 780, 782 (Fla. 2d DCA 2004).

The trial court first must determine whether the motion is facially sufficient—that it alleges with specificity the property to be returned and "that 'the property at issue was his personal property, was not the fruit of criminal activity, and was not being held as evidence.' " Id. (quoting Durain v. State, 765 So. 2d 880, 880 (Fla. 2d DCA 2000)).

If the court records conclusively refute the claims, the court may summarily deny the motion. Id. (citing Durain, 765 So. 2d at 880-81). "[W]hen summarily denying a motion for return of property as untimely under [section 705.105(1), Florida Statutes (2019)], the court is obliged to attach portions of the record showing that the property was seized pursuant to a lawful investigation or held as evidence." White v. State, 926 So. 2d 473, 474 (Fla. 2d DCA 2006) (citing Burden v. State, 890 So. 2d 566, 567 (Fla. 2d DCA 2005)).

Alternatively, the court may hold an evidentiary hearing. Bolden, 875 So. 2d at 782.

Ms. O'Connell's motion sought the return of her desktop computer and her external hard drive stating they were "neither used in nor connected with the offense charged and therefore hold no evidentiary value." The postconviction court summarily denied Ms. O'Connell's motion as untimely, ruling that pursuant to section 705.105(1) title to the property had vested permanently with the Hillsborough County Sheriff sixty days after this court affirmed her judgment and sentences because "the subject property was seized pursuant to a lawful investigation and was held as evidence for the criminal prosecution." The postconviction court attached to its order a search warrant issued in 2015. The affidavit for the warrant states a personal computer was "impounded" during a consensual search of Ms. O'Connell's home when she was arrested in 2010, but it "was never analyzed or searched." The desire to search the computer arose after a detective obtained a sworn statement from Ms. O'Connell's codefendant stating that the computer was used to search the internet for ways to treat the victim's injuries. The affiant stated that he wished to examine the computer for "evidentiary value regarding the search" and that he had reason to believe "there is now being kept within said devices certain [p]hysical [e]vidence: browser history, search history, internet history, graphic images, and electronic reports." There is no mention of an external hard drive in the attachments to the court's order.

Section 705.105(1) states: 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.¹ O'Connell's personal computer and external hard drive have vested permanently with the Hillsborough County Sheriff under section 705.105(1).

Assuming that the personal computer was lawfully seized during the 2010 search of Ms. O'Connell's¹ The conclusion of the proceeding for purposes of section 705.105(1) is "when 'the mandate issues from the appellate court on a direct appeal of a defendant's judgment and sentence.' " Horvatt v. State, 266 So. 3d 1268, 1269 (Fla. 5th DCA 2019) (quoting Davis v. State, 198 So. 3d 1070, 1072 (Fla. 5th DCA 2016)).

The mandate from Ms. O'Connell's direct appeal in case number 2D16-1801 issued on May 6, 2019.

home, the search warrant affidavit does not conclusively show that the computer itself, as opposed to digital files that the State recovered from the computer, was seized as evidence. The attachments do not mention an external hard drive. And the attachments do not show that the items were in possession of a law enforcement agency or the clerk sixty days after this court issued the mandate from Ms. O'Connell's direct appeal. Because the attachments to the trial court's order do not conclusively show that titles to the computer and external hard drive have vested permanently with the Hillsborough County Sheriff under section 705.105(1) rendering Ms. O'Connell's motion untimely, we reverse the order summarily denying Ms. O'Connell's motion for return of property and remand for further proceedings.

Reversed and remanded. KELLY and VILLANTI, JJ., Concur. ATKINSON, J., Concurs in result only. ATKINSON, J., concurring in result only. I concur in the result reached by the majority because I agree that the attachments to the court's order summarily denying Ms.

O'Connell's motion for return of property do not establish that the property was either "in the custody of the court or clerk of court" or "of a law enforcement agency." § 705.105(1), Fla. Stat (2019).

I write separately because I disagree with the majority opinion to the extent that it concludes that the record attachments did not meet the other criteria for title to vest in the law enforcement agency by operation of statute—that the computer was "lawfully seized pursuant to a lawful investigation" or "seized as evidence." See id. A law enforcement agency cannot gain permanent title to unclaimed evidence or unclaimed tangible personal property unless it is established that such property is in the custody of the court, clerk of court, or a law enforcement agency sixty days after the conclusion of the proceeding. See § 705.105(1); cf. § 705.101(6) (defining "[u]nclaimed evidence" as noncontraband "tangible personal property . . . which was seized by a law enforcement agency, was intended for use in a criminal or quasi-criminal proceeding, and is retained by the law enforcement agency or the clerk of the county or circuit court for 60 days after the final disposition of the proceeding and to which no claim of ownership has been made" (emphasis added)).

Sections 705.101(6) and 705.105(1) tacitly create a sixty-day deadline before which a defendant must move for a return of her property. See §§ 705.101(6) (defining evidence as unclaimed only if "no claim of ownership has been made" within the sixty days); .105(1) (providing that title of unclaimed evidence or property vests in the law enforcement agency after the sixty days has elapsed).

However, the expiration of that deadline does not obviate the requirement to establish the property's physical location in order for the court to find that title has vested permanently in the law enforcement agency. The physical location of the property is of added importance because the criteria for whether title to the property vests in the law enforcement agency differs depending on which entity has custody. See § 705.105(1); Cloud v. State, 801 So. 2d 964, 964 (Fla. 2d DCA 2001) (instructing that the trial court "must attach those portions of the record indicating that the property was seized and held as evidence by law enforcement or that the property was seized pursuant to a lawful investigation and was in the custody of the clerk of the court" (emphasis added)).

Here, Ms. O'Connell alleged in her motion that a law enforcement agency had physical custody of the property.

Assuming her allegation to be true, in order for title to vest in the law enforcement agency it must be established that the computer had been "seized as evidence." § 705.105(1).

Contrary to the conclusion of the majority, I believe the record excerpts attached to the trial court's order were sufficient to satisfy that burden. The search warrant affidavit asserted that the following evidence was being kept on a computer and phones that had been seized during a previous search of a home: "Browser history, search history, internet history, graphic images, and electronic reports which may have been used in the commission of a [h]omicide." As grounds for a further search of the computer and telephones, the affiant alleged that a codefendant had recounted observing Ms. O'Connell "do an internet search for how to treat the swelling or the injury" that had been visited on the child victim. The affiant explained that "forensic examination of items such as computers and cell phones can show whether they used the internet, browser history, search history and internet history, and reports can be run confirming same, without affecting the integrity of the evidence itself." The affiant asserted his belief that the "listed devices" had been "used to access the internet . . . for conducting a search on treating an injury sustained by the victim" and requested the "search warrant for the electronic items described herein to examine these items for evidentiary value regarding this search." The majority draws a distinction between the computer and "digital files" that might have been discovered therein, concluding that the affidavit did not establish that the former was itself being seized as evidence. I disagree that the record supports that conclusion because, regardless of whether the digital files later became the exclusive repository of evidentiary value, the computer itself was seized as evidence at the time it was initially obtained by law enforcement. To the extent the trial court determined that the computer was still being "held as evidence," I too am dubious of its reasoning.

However, the relevant statutory language merely requires property in the custody of a law enforcement agency to have been "seized as evidence." See § 705.105(1).

Echoing the imprecise language of several appellate court opinions, the trial court expanded the scope of its analysis beyond the point of seizure, explaining that denial is proper when the record shows "that the property was seized pursuant to a lawful investigation or held as evidence." (Emphasis added.) Compare Burden v. State, 890 So. 2d 566, 567 (Fla. 2d DCA 2005) ("When summarily denying a motion for return of property pursuant to the sixty-day time bar, the trial court must attach those portions of the record showing that the property was seized pursuant to a lawful investigation or held as evidence." (emphasis added)), and Cloud, 801 So. 2d at 964 (explaining that the record must show "that the property was seized and held as evidence by law enforcement" (emphasis added)), with § 705.105(1) (describing eligible evidence or property as that which was "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" (emphasis added)).

Limiting the government's right to retain property only to those items being held as evidence might very well accord with common sense. But—absent a constitutional imperative—how high the bar should be set for the permanent and automatic relinquishment to the government of private property after the conclusion of a criminal proceeding is a question for the legislature. A court may not raise that bar in contumacy of the ordinary meaning of the statutory text. The language of the statute speaks only of the status of the property at the time it was seized and includes no exception for circumstances in which the government's evidentiary interest in the property might have attenuated during the course of the proceedings. Here, while data may have been extracted from the computer at some point after it was obtained by the government, the question is whether the computer itself was nonetheless seized as evidence by a law enforcement agency—even if it was only the contents subsequently removed from the computer that were ultimately held as evidence. And regardless of whether relevant files were later separated from the computer, the language of the warrant affidavit suggests the affiant's belief that evidentiary value could be derived from establishing that the incriminating searches were performed on a device owned by O'Connell or in her possession—making the device itself, not just the search history, probative of her guilt. Even assuming that the computer was rendered evidentiarily useless once its contents were successfully mined, title to it could still vest in the law enforcement agency. If, as some courts have seemed to suggest, law enforcement agencies should only be allowed to obtain title to those items that are ultimately found to be of evidentiary value, then the language of the statute—which mentions only the purpose and circumstances of the item's seizure—would have to be altered to achieve such a result. See § 705.105. The statute describes items to which agencies can obtain title not only as "unclaimed evidence" but as "tangible personal property" as well. See § 705.105(1) ("Title to unclaimed evidence or unclaimed tangible personal property . . . shall vest permanently in the law enforcement agency . . . ." (emphasis added)).

And it is worth noting that if the property is in the custody of the court or clerk of court it must only have been "lawfully seized pursuant to a lawful investigation"; it is only such items in the custody of a law enforcement agency that must have been "seized as evidence." See id. (emphasis added).

Here, the language of the search warrant affidavit regarding the already-seized computer indicates that it had been seized as evidence, satisfying that criterion for the vesting of title with the agency. Opinion subject to revision prior to official publication.