Filing # 139071033 E-Filed 11/23/2021 12:31:02 PM

IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

AND FOR HILLSBOROUGH COUNTY, FLORIDA
CRIMINAL JUSTICE DIVISION

STATE OF FLORIDA CASE NO: 21CM003165A

v.

ERNESTO OMAR NUNEZRIVERA DIVISION: F

DEFENDANT’S MOTION FOR RETURN OF PROPERTY

COMES NOW the Defendant, ERNESTO OMAR NUNEZRIVERA, by and through the

undersigned attorney, pursuant to §933.14, Fla. Stat. , and moves this Honorable Court to enter its

order requiring the State of Florida, through the Hillsborough County Sheriff's Office to return

certain property to the defendant, and as grounds would show as follows:

1. That on 09/23/2021, the Defendant was arrested for Battery.

2. At the time of or subsequent to the Defendant’s arrest, per report number(s) 2021-

210467, the Hillsborough County Sheriff's Office, seized certain personal property from the

custody or possession of the Defendant, including but not limited to, the following: a black PT809

Taurus Pistol and 11 black magazines.

3. The above-described property is the personal property of the Defendant.

4. The personal property described above is not contraband under any law, is not the

fruit of criminal activity, and is not being held as evidence. See Almeda v. State, 959 So. 2d 806,

808 (Fla. 2d DCA 2007) (citing Scott v. State, 922 So. 2d 1024, 1026 (Fla. 5th DCA 2006) (state

attorney’s statements that law enforcement did not have defendant’s property was not sufficient to

satisfy requirement to conduct evidentiary hearing for motion to return property); Bolden v. State,

875 So. 2d 780, 782 (Fla. 2d DCA 2004) (if a motion for return of property is facially sufficient,

i.e. it alleges that the specific property at issue was the defendant’s personal property, was not the

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 fruit of criminal activity, and was not being held as evidence, trial court must conduct evidentiary

hearing or allow the state to refute defendant’s contention that property should be returned).

5. The charges herein have now been disposed of according to law.

6. To allow Hillsborough County Sheriff's Office or the State of Florida to seize and

maintain personal property without due process of the law violates the Defendant's rights under

the Constitutions of both the State of Florida and the United States of America. See Bolden v. State,

875 So. 2d 780, 782-83 (Fla. 2d DCA 2004) (upon facially sufficient motion for return of property,

the trial court may order the State to respond by citing to applicable case law or attaching portions

of the record to refute the defendant’s contention, or in the alternative, hold an evidentiary hearing).

7. Hillsborough County Sheriff's Office does not object to the return of the property.

WHEREFORE, the undersigned moves this Court to enter an order requiring the State of

Florida and Hillsborough County Sheriff's Office to return to the Defendant, 1608 Harvard

Woods Drive #2610, Brandon, FL 33511, or his designee, the above-listed personal property in

its possession not found to be contraband, the fruit of criminal activity, or used as evidence in

this or any other criminal proceeding.

I HEREBY CERTIFY that a copy of the foregoing motion has been furnished to Crews W.

Chambers via e-mail to !mailprocessingstaff@SAO13th.com, Assistant State Attorney, Office of

the State Attorney of the Thirteenth Judicial Circuit; via e-mail to Hillsborough County Sheriff's

Office at MMAKHOLM@HCSO.TAMPA.FL.US, on this 23rd day of November, 2021.

Respectfully submitted,
LAW OFFICE OF JULIANNE M. HOLT
PUBLIC DEFENDER

/s/ SARAH B ROBERGE

Florida Bar # 1031840
Post Office Box 172910
Tampa, Florida 33672-0910

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 (813) 272-5980
(813) 388-4267 (fax)
robergesa@pd13.state.fl.us

Attorney for ERNESTO OMAR NUNEZRIVERA

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