KENNETH SUTHERLAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the trial court's denial of a motion to return property seized in a computer pornography investigation, holding that the motion is properly deferred pending resolution of a pending motion to vacate the plea on ineffective assistance grounds.
A trial court's denial of a motion to return seized property is properly affirmed when a motion to vacate the plea is pending, and the defendant may renew the motion after the plea motion is resolved.
[1] When a motion to vacate a plea on ineffective assistance grounds is pending, a trial court's denial of a motion to return seized property may be affirmed without prejudic…
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Join FLexlaw to unlock all legal intelligenceSutherland pleaded no contest to multiple counts of computer pornography and child exploitation, was convicted and sentenced, and then moved for retur…
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PER CURIAM.
Following a plea of no contest, conviction, and sentence on multiple counts of computer pornography and child exploitation, the defendant appeals an order de nying his motion for the return of property seized during the execution of the search warrant. Subsequent to filing the motion to return property and the court’s entry of the order denying the motion, the defendant filed a motion to vacate and set aside his plea on grounds of ineffective assistance of counsel. In light of the pending motion to vacate the plea, we affirm the trial court’s denial of the motion to return property. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979). This affirmance is without prejudice to the defendant to renew his motion for the return of property should the trial court deny the pending motion to vacate the plea. In considering a renewed motion to return items seized, the trial court is not limited to the single issue decided in the motion to suppress. Rather, the court must determine whether the property had an evidentiary purpose. If it did not, the court retains “jurisdiction to order its return.” Oleandi v. State, 731 So. 2d 4, 6 (Fla. 4th DCA 1999).
AFFIRMED.
FARMER, C.J., GUNTHER and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Davies v. State, 934 So. 2d 606 (Fla. 5th DCA 2006)…dant 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 [*607] procee…
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Matos v. State, 190 So. 3d 115 (Fla. 4th DCA 2015)…iction filings is insufficient to conclusively refute the allegations of defendant’s motion and establish the State’s continued need to retain the car some ten years after defendant’s convictions were affirmed on appeal. Compare Sutherland v. State, 860 So. 2d 505 (Fla. 4th DCA 2003) (affirming denial of motion for return of property without prejudice to defendant’s right to renew his motion .if trial court denied a pending motion to vacate, plea, which defendant had filed after his motion for return of prope…
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- J.G. v. J.S., Sr., 731 So. 2d 4 (Fla. 4th DCA 1998)
- Oleandi v. State, 731 So. 2d 4 (Fla. 4th DCA 1999)