Golding v. Director of Public Safety Dept., Metropolitan Dade County, 79-2088

• Decision Date: 16 June 1981
• Docket Number: No. 79-2088,79-2088
• Citation: 400 So.2d 990
• Parties: Sheldon GOLDING, Petitioner, v. DIRECTOR OF the PUBLIC SAFETY DEPARTMENT, METROPOLITAN DADE COUNTY, Respondent.
• Court: Florida District Court of Appeals

Page 990

400 So.2d 990

Sheldon GOLDING, Petitioner, v. DIRECTOR OF the PUBLIC SAFETY DEPARTMENT, METROPOLITAN DADE COUNTY, Respondent.

No. 79-2088.

District Court of Appeal of Florida, Third District.

June 16, 1981.

Golding & Wagenheim, Richard L. Wagenheim and Mark Pearlman, Fort Lauderdale, for petitioner.

Robert A. Ginsburg, County Atty., and Ralph C. Rocheteau, Asst. County Atty., for respondent.

Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

In October 1979, a search warrant describing the property to be seized as narcotics was issued by a judge of the Circuit Court in and for Dade County, Florida. Officers of the Dade County Public Safety Department searched the described premises, a locker at Miami International Airport, and seized an attache case containing $201,500 in United States currency and a raincoat. Shortly thereafter, Golding filed a motion in the Criminal Division of the Circuit Court seeking the return of the property under Section 933.14, Florida Statutes (1979). The trial court denied the motion, stating that Golding's exclusive remedy was an action in replevin, since there was no criminal action pending before the court arising out of the seizure. Golding appealed. Pursuant to Florida Rule of Appellate Procedure 9.040(c), we treat Golding's appeal as a petition seeking a writ of mandamus. ¹

In Harvey v. Drake, 40 So.2d 214 (Fla.1949), a circuit court judge issued a search warrant returnable to the circuit court describing certain premises in Walton County as containing illegal alcoholic beverages. A seizure was made, but no criminal charges were brought. The owners of the premises moved for return of the property seized before a county judge who would have had jurisdiction over the misdemeanor offense of possession of the beverages, the highest criminal charge which could have been brought. The Florida Supreme Court, on an appeal by the Department of Beverages from a denial of a writ prohibiting the county judge from exercising jurisdiction, held that motions for the return of property are controlled by Section 933.14, Florida Statutes (1941), ² which gives jurisdiction to "the magistrate or judge before whom the warrant is returned," which in Harvey, by the terms of the warrant, was the circuit court. ³

Three propositions pertinent to the present case emerge from Harvey v. Drake, supra : first, movants seeking return of property seized under a warrant have as an available remedy a motion under Section 933.14, quite apart from an action for replevin ⁴; second, the court before which the warrant is returned has jurisdiction to entertain this motion ⁵; third, the filing of criminal charges is not a prerequisite to relief under Section 933.14. We conclude, therefore, that the Criminal Division Judge of the Circuit Court to whom Golding's motion was assigned had jurisdiction to grant the relief sought in the motion.

The County ⁶ has brought to our attention that subsequent to Golding's appeal, he instituted a replevin action in the Circuit Court seeking the return of this same property. The County suggests that this moots the issues before us. We disagree. To be sure, the relief Golding seeks here is our mandate requiring the Circuit Court to exercise jurisdiction which, in respect to Golding's replevin action, the Circuit Court has done. ⁷ But in our view, Golding is entitled to have the Circuit Court exercise jurisdiction, which it has refused to do, over his distinct and separate motion for return of property. Thus, the issue before us is not moot. Golding was entitled to seek the expeditious remedy afforded by Section 933.14. ⁸ He attempted to avail himself of this remedy. The less expeditious procedures involved in an original civil action of replevin are hardly an adequate substitute for one seeking the immediate return of seized property. See generally Sawyer v. Gable, 400 So.2d 992 (Fla.3d DCA 1981). Merely because Golding, as a result of the trial court's refusal to accept jurisdiction, was left with the Hobson's choices of replevin and appeal and chose both, does not disentitle him to review. Our refusal to decide the case before us on mootness grounds would sanction the trial court's wrongful refusal to exercise jurisdiction and penalize Golding for his impatience, when in fact the remedy which he was entitled to utilize under Section 933.14, and which he was deprived from utilizing, was precisely designed to accelerate the return of seized property to justifiably impatient movants.

Accordingly, having treated this appeal as a petition seeking a writ of mandamus, we grant the petition. We deem it unnecessary to issue the writ. We direct the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, to exercise its jurisdiction over Golding's motion for return of property. ⁹

1 Golding apparently perceived the trial court's order as determining that he did not have a right to immediate possession of the property, making the order appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). But the trial court obviously did not rule on the merits of his claim. Instead, it held that in the absence of a pending criminal case, it was without jurisdiction to hear the motion. Accordingly, we hold that appeal does not lie. However, since Florida Rule of Appellate Procedure 9.040(c) authorizes us to treat the cause as if proper remedy had been sought, we treat this appeal as a petition for writ of mandamus. See Estevez v. Gordon, 386 So.2d 43 (Fla.3d DCA 1980).

2 Section 933.14, under consideration in Harvey v. Drake, was substantially the same in 1941 as the 1979 version involved in the present case...