TIMOTHY PLAISTED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Plaisted appealed the denial of his motion for return of seized property. The court reversed and remanded, holding that the trial court must address Plaisted's constitutional challenge to his confession before deciding whether to return $100 in cash allegedly acquired through criminal conduct, and must determine whether non-cash property is still in state custody before ordering its return.
The trial court erred by denying the motion without addressing Plaisted's constitutional challenge to his confession. On remand, the trial court must first determine whether non-cash property is still in state custody and order its return per the State's concession, then hold a new hearing to consider Plaisted's constitutional challenge before deciding the fate of the $100 in cash. Plaisted has no constitutional right to appointed counsel for the civil property return motion.
[1] A State waives an argument for untimeliness of a motion for return of seized property if the argument is not raised in the trial court.
[2] A trial court must first determine if seized property is still in the possession of a law enforcement agency before ordering its return.
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“the State waived this argument by not raising it below”
Establishes that the State's timeliness argument was procedurally waived by failure to raise it in the trial court
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Join FLexlaw to unlock all legal intelligenceLaw enforcement seized property from Plaisted, including a CD player, music CDs, DVDs, and $100 in cash. Plaisted confessed to criminal conduct and ad…
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Timothy Plaisted appeals from an order denying his motion for return of seized property. On appeal, the State argues that Plaisted’s motion was untimely. However, the State waived this argument by not raising it below. See generally, Williams v. State, 414 So.2d 509 (Fla.1982). In fact, the State ultimately agreed to the return of all property seized — without conceding that the property was still held by the State — except for $100.00 in cash.1 With respect to the cash, the State argued that it should not be returned based on statements in Plaisted’s confession, where he admitted that he acquired the cash as a result of the criminal conduct for which he was prosecuted in the underlying case. Plaisted objected to the State’s use of his confession on grounds that it was obtained in violation of his constitutional rights. The trial court denied Plaisted’s motion without addressing the constitutional issue. We reverse for further proceedings.
On remand, the trial court is directed to first determine whether the non-cash personal property is still held by the State. See Bolden v. State, 875 So.2d 780, 782-83 (Fla. 2d DCA 2004) (“At the evi-dentiary hearing, the trial court must first ascertain whether the property was confiscated by a law enforcement agency in connection with a criminal prosecution and whether the property is still in the agency’s possession.”). If so, the property should be ordered returned to Plaisted in accordance with the State’s concession at the prior hearing. With respect to the cash, the trial court is directed to consider Plaisted’s constitutional challenge to the use of his confession at a new hearing. See, e.g., Alvarez v. City of Hialeah, 900 *150So.2d 761 (Fla. 3d DCA 2006) (“The law is clear that the exclusionary rule applies to forfeiture proceedings ....”) (citations omitted).
Finally, we reject Plaisted’s argument that the trial court erred by failing to appoint counsel to represent him in connection with his motion for return of property. See United States v. Wade, 291 F.Supp.2d 1314, 1316-17 (M.D.Fla.2003) (holding that because a motion for return of seized property and related appeal are civil in nature, there is no constitutional right to counsel).
REVERSED AND REMANDED WITH INSTRUCTIONS.
ORFINGER, LAWSON and EVANDER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Williams v. State, 414 So. 2d 509 (Fla. 1982)
- Deatrick S. Bolden v. State, 875 So. 2d 780 (Fla. 2d DCA 2004)
- Alvaro Alvarez v. City OF Hialeah, 900 So. 2d 761 (Fla. 3d DCA 2005)
- United States v. Wade, 291 F. Supp. 2d 1314 (M.D. Fla. 2003)