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Date: 01-12-2020

Case Style:

MALCOLM N. PETERSON vs STATE OF FLORIDA

Case Number: 5D19-507

Judge: Dan Traver

Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

Plaintiff's Attorney: Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General

Defendant's Attorney:

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Malcolm Peterson appeals the circuit courtís 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 Petersonís motion.
In our last opinion, we outlined this matterís 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, 1264Ė65 (Fla. 5th DCA 2018).
On remand, the trial court conducted a hearing on Petersonís 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
Petersonís request for its return was therefore impossible in the criminal case. It further
contended that it did not wish to return Petersonís 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 Petersonís motion. Its order attached
copies of the forfeiture judgment and the exhibit list in Petersonís other criminal case.
The exhibit list referenced pictures of Petersonís license and wallet. Peterson does not
contest the trial courtís ruling on the forfeited currency. He argues, however, that the trial
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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 courtís 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
Petersonís 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
Stateís 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
Petersonís facially sufficient motion. See Scott v. State, 922 So. 2d 1024, 1027 (Fla. 5th
DCA 2006) (ďThe requirement for an evidentiary hearing was not satisfied by the courtís
reliance on state attorneysí statements . . . .Ē). The State did not know the status of
Petersonís 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 Petersonís wallet
and license, we have no way to evaluate the trial courtís decision without this evidence.
See Almeda v. State, 959 So. 2d 806, 809 (Fla. 2d DCA 2007).

Outcome: Accordingly, we affirm the trial courtís order on Petersonís forfeited currency. We
remand this proceeding for the trial court to conduct an evidentiary hearing on Petersonís wallet and license, or to attach portions of the record refuting his motion.

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