MALCOLM N. PETERSON

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

MALCOLM N. PETERSON,

Appellant,

v. Case No. 5D19-507

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed January 10, 2020

Appeal from the Circuit Court for Volusia County, Raul A. Zambrano, Judge.

James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

TRAVER, J.

Malcolm Peterson appeals the circuit court’s order summarily denying his motion for return of personal property. This is the second time we have addressed his motion. We affirm in part and reverse in part. We again reverse because the trial court erred by

2 denying the motion without either conducting an evidentiary hearing or attaching portions of the record refuting Peterson’s motion. In our last opinion, we outlined this matter’s background: While executing a search warrant at Peterson's residence, law enforcement seized various contraband and drug paraphernalia. In addition to these items, law enforcement seized $187.00 in cash from Peterson as well as a black wallet containing his Florida driver license and $2,565.00 in cash. The State charged Peterson with four drug-related offenses; but, the charges were ultimately nolle prossed.

Peterson then filed a motion seeking the return of his cash, wallet, and driver license. After receiving a response from the State, the circuit court summarily denied the motion.

Peterson v. State, 249 So. 3d 1264, 1264–65 (Fla. 5th DCA 2018). On remand, the trial court conducted a hearing on Peterson’s motion. It heard argument from the State and Peterson; it did not receive any testimony or evidence. The State argued the currency had been the subject of a valid civil forfeiture proceeding, and Peterson’s request for its return was therefore impossible in the criminal case. It further contended that it did not wish to return Peterson’s wallet and license because they might be required as evidence in a separate criminal proceeding. The State explained that even though this case had been nolle prossed, Peterson had two felony drug convictions. In one of those cases, the State had introduced photographs of the wallet and license, and it might prefer to use the actual items if the case required retrial. The trial court again summarily denied Peterson’s motion. Its order attached copies of the forfeiture judgment and the exhibit list in Peterson’s other criminal case. The exhibit list referenced pictures of Peterson’s license and wallet. Peterson does not contest the trial court’s ruling on the forfeited currency. He argues, however, that the trial

3 court erred by not conducting an evidentiary hearing on the wallet and license, and the exhibit list does not conclusively refute his motion. We agree. Our review of a summary denial of a motion to return property is de novo. Id. at 1265 (citations omitted). The framework for a trial court’s evaluation of these motions is akin to postconviction relief. Id. We have already concluded Peterson filed a facially sufficient motion for the return of his license and wallet, and we directed the trial court to either conduct an evidentiary hearing or attach record evidence conclusively refuting Peterson’s claims. Id. The trial court did not conduct an evidentiary hearing. Rather, it attached an exhibit list from another case that referenced pictures of the wallet and license. It accepted the State’s unsworn and unsupported assertion that the other case might require retrial. It did not, however, base this decision on evidence, and the exhibit list does not refute Peterson’s facially sufficient motion. See Scott v. State, 922 So. 2d 1024, 1027 (Fla. 5th DCA 2006) (“The requirement for an evidentiary hearing was not satisfied by the court’s reliance on state attorneys’ statements . . . .”). The State did not know the status of Peterson’s other case, and it did not know if any postconviction proceedings were pending therein. While there might be a legitimate reason the State still requires Peterson’s wallet and license, we have no way to evaluate the trial court’s decision without this evidence. See Almeda v. State, 959 So. 2d 806, 809 (Fla. 2d DCA 2007). Accordingly, we affirm the trial court’s order on Peterson’s forfeited currency. We remand this proceeding for the trial court to conduct an evidentiary hearing on Peterson’s wallet and license, or to attach portions of the record refuting his motion.

4 AFFIRMED in part, REVERSED in part, and REMANDED.

EDWARDS and EISNAUGLE, JJ., concur.