State ex rel. Gerstein v. Durant, 77-335

Citation348 So.2d 405
Decision Date26 July 1977
Docket NumberNo. 77-335,77-335
PartiesSTATE of Florida ex rel. Richard E. GERSTEIN, as State Attorney of the Eleventh Judicial Circuit of Florida, Petitioner, v. The Honorable N. Joseph DURANT, Jr., Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, and/or Annie Wilson, Respondents.
CourtCourt of Appeal of Florida (US)

Richard E. Gerstein, State Atty. and George Volsky and Alan E. Krueger, Asst. State Attys., for petitioner.

Greene & Cooper, Goodhart & Rosner, Miami, for respondents.

Before HENDRY, C. J., and PEARSON and HUBBART, JJ.

HUBBART, Judge.

This is a criminal case in which a defendant sought the return of property seized from her by certain police officials as well as the authority to depose these officials. The trial court ordered the state to return the seized property and to produce the police officials for the defendant's deposition. The state files inter alia a petition for a writ of certiorari to review these orders. 1 The issues presented for review center around whether these orders constitute a departure from the essential requirements of law.

On November 11, 1976, police officials in Montreal, Canada, arrested the respondent, Annie Wilson, at the request of the Miami Beach Police Department and seized $17,600 in cash, a quantity of jewelry and some personal papers. On December 3, 1976, the respondent was transported to Dade County and turned over to Miami Beach police officials. On December 27, 1976, the respondent was charged in a two count information with grand larceny of cash belonging to Irma Glick and Elizabeth Schofler before the Circuit Court of the Eleventh Judicial Circuit of Florida.

On January 11, 1977, the respondent through counsel filed an unsworn motion for the return of the cash and property seized from her by the Montreal police claiming that the cash and property herein belonged to her, her husband, her children and her daughter-in-law. After a hearing, the trial court ordered all of the seized cash and property turned over to respondent.

The state filed a motion for reconsideration attaching thereto two sworn petitions signed by the two grand larceny complainants, Irma Glick and Elizabeth Schofler, claiming they were the rightful owners of some or all of the cash seized from the respondent and praying that said cash be returned to them. The trial court denied the motion without entertaining the complainants' petitions for return of property. It is undisputed that the cash, jewelry and personal papers seized from the respondent were in the custody of the Montreal police authorities at the time the trial court ordered such property returned to the respondent.

The respondent then caused to be issued certain subpoenas duces tecum for deposition directed to the Canadian police officers in Montreal who arrested and searched her. Such officers had been listed by the state as potential witnesses in the case. These subpoenas were served on the office of the state attorney. The state filed a motion to quash these subpoenas as improperly served along with motions for a protective order and for clarification. The trial court entered an order quashing the subpoenas but requiring the state to produce the Montreal police officers for the defendant to depose before a certain date.

On February 14, 1977, the state filed a suggestion for writ of prohibition or in the alternative a petition for writ of certiorari to review the orders of the trial court directing the return of property and the production of the Montreal police officers for deposition. We treat the proceeding as a petition for a writ of certiorari.

I

The first issue presented for review is whether a circuit court has the authority to return property seized and held by police officers outside the territorial jurisdiction of the court upon an arrest of a defendant in a criminal proceeding pending before such court. We hold that the court lacks such authority. Accordingly, we grant the petition for writ of certiorari and quash the order returning the property in question to the respondent since the order constitutes a departure from the essential requirements of law.

The true owner of property seized as evidence by the police upon arrest of a defendant in a criminal proceeding may make a sworn application to the judge having trial jurisdiction in the criminal proceeding for the return of such property providing the property is held in custodia legis by a police agency or the state attorney within the territorial jurisdiction of the court. Such an application may not be made when the property sought to be returned is not held in custodia legis within the territorial jurisdiction of the court. The procedure for making such an application is set forth at Section 812.061,...

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22 cases
  • Colby v. McNeill, 91-1157
    • United States
    • Florida District Court of Appeals
    • February 11, 1992
    ... ...         This is an appeal by the state from a final order granting a petition for a writ of ... 3.191(d)(3)(iii), (e). See, e.g., State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); State v ... 3d DCA 1977) ... 6 See, e.g., State ex rel. Gerstein ... 6 See, e.g., State ex rel. Gerstein v. Durant ... ...
  • Sawyer v. Gable, 80-1990
    • United States
    • Florida District Court of Appeals
    • June 16, 1981
    ... ... ruling, the State dismissed the criminal charges against Sawyer. 1 Seven ... State, 41 So.2d 554 (Fla.1949). 10 See also State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla.3d DCA 1977); ... ...
  • State v. Carda, 85-1858
    • United States
    • Florida District Court of Appeals
    • October 14, 1986
    ... ... Banks, 349 So.2d 736 (Fla. 3d DCA 1977); State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977); State v. Roig, 305 ... ...
  • State v. Mesa
    • United States
    • Florida District Court of Appeals
    • March 10, 1981
    ... ... Banks, 349 So.2d 736 (Fla. 3d DCA 1977); State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977); State v. Roig, 305 ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Speedy trial, speedy games.
    • United States
    • Florida Bar Journal Vol. 76 No. 11, December 2002
    • December 1, 2002
    ...445 So. 2d 605, 611-12 (Fla. 3d D.C.A. 1984); State v. Banks, 349 So. 2d 736 (Fla. 3d D.C.A. 1977); State ex rel. Gerstein v. Durant, 348 So. 2d 405 (Fla. 3d D.C.A. (28) State v. Del Gaudio, 445 So. 2d 605, 611-12 (Fla. 3d D.C.A. 1984); Vega v. State, 778 So. 2d 505, 507 (Fla. 3d D.C.A. 200......

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