Motion for Order for Rule to Show Cause
COMES NOW, the Defendant, by and through his undersigned counsel, and hereby files this Motion for Order to Show Cause, and respectfully moves this Honorable Court to enter a Order to Show Cause directing the State and Jacksonville Sheriff’s Office, to show cause why they should not be held in contempt for failing to honor the April 17, Order Granting Motion for Return of Property, and in support thereof states as follows:
- As noted in the Defendant’s April 15, Motion for Return of Property, the Client was arrested on November 14, and charged with 15 counts of criminal mischief, 4 counts of burglary / curtilage of any other structure – no theft, and 1 count of burglary of an unoccupied structure, 6 counts of interfering with railroad train.
- At the time of the investigation and search, several items were seized from him, as noted in the attached Inventory and Receipt (Search Warrant) (attached to the Motion for Return of Property as Exhibit A), as well as two cell phones received by the Jacksonville Sheriff’s Office by the Starke Police Department, as listed in the extract from a Supplemental Report (2012-717500-2) (attached to the Motion for Return of Property as Exhibit B).
- On March 18, the Client pled guilty to 3 counts of burglary, 9 counts of felony criminal mischief, 4 counts of interference with trains, and 1 count of misdemeanor criminal mischief. He received a withhold of adjudication as to all felony counts, and was adjudicated guilty of one misdemeanor. Therefore, all pending criminal charges against the Client have been concluded.
- No forfeiture notice has been received with regards to any of this personal property.
- 932.703(2)(a) Fla Stat. states that Personal property may be seized at the time of the violation or subsequent to the violation, if the person entitled to notice is notified at the time of the seizure or by certified mail, return receipt requested, that there is a right to an adversarial preliminary hearing after the seizure to determine whether probable cause exists to believe that such property has been or is being used in violation of the Florida Contraband Forfeiture Act. Seizing agencies shall make a diligent effort to notify the person entitled to notice of the seizure. Notice provided by certified mail must be mailed within 5 working days after the seizure and must state that a person entitled to notice may request an adversarial preliminary hearing within 15 days after receiving such notice.
- No notice of the seizure, or of the right to an adversarial preliminary hearing was provided at the time of arrest. On information and belief, no notice of the seizure, or of the right to an adversarial preliminary hearing has been provided by certified mail. The latter notice was required to be provided was provided “within 5 working days after the seizure.” It has now been 36 days since the seizure.
- Repeated unsuccessful attempts to resolve this matter without Court intervention have been made. The Jacksonville Sheriff’s Office has confirmed they have received this Court’s Order, but advises they cannot release the property until they receive the Property Card from the State Attorney’s Office, with the items they are permitted the release of circled.
- The last communication from the State Attorney’s Office (by and through J. K.), was on April 24 (now one month ago), who, upon counsel’s request, advised he would work on having the Defendant’s laptop immediately returned to him so he could complete work for classes through FSCJ. Despite repeated efforts, there has been no returned communication from K., including counsel’s April 23 email to him, advising him if he failed to respond to us by May 23, we would seek further guidance from the Court in this matter.
- No ground for retaining the subject property has ever been asserted during those attempts. The Court agrees with this representation, as it granted the Defendant’s Motion for Return of Property on April 17, 2013 – some 37 days ago, and the State and Jacksonville Sheriff’s Office have refused to return the Defendant’s property to the Defendant. Therefore, the Defendant is seeking further guidance from the Court.
WHEREFORE, the defendant respectfully requests this Honorable Court enter an Order to Show Cause, directing the State Attorney’s Office, and Jacksonville Sheriff’s Office to show cause why they have released the Defendant’s said property.