Florida/Georgia Personal Injury & Workers Compensation

...Both of these prosecutions terminated in favor of the appellant with the pending charges being dismissed. The state prosecution was nol prossed on June 5, 1970. The appellee sheriff had seized the gun to be used as evidence against the appellant under the provisions of Section 790.08, Florida Statutes, F.S.A....

...4th DCA 1998) ("This is not a case where forfeiture of the firearm was included as a condition of the plea, nor has the state commenced a forfeiture proceeding under the Florida Contraband Forfeiture Act, §§ 932.701-932.707, Florida Statutes (1995), or any other statute. Section 790.08(2) does not apply....

part of the employee's principal activity." Id. § 790.8(c). "Such a situation may exist where the changing

...HOBSON, A.C.J., and MANN, J., concur. NOTES [1] § 790.23, F.S. 1969, F.S.A. [2] Bryant did not, and does not now, contend or suggest that his civil rights had been restored so as to except him from the provisions of § 790.23, supra. [3] As to weapons, see, e.g., § 790.08 and § 790.25, F.S....

the principal activity or activities." 29 C.F.R. § 790.8.[6] Thus, the alleged clock in and out time is

as hours worked.” 29 C.F.R. § 785.38; see id. § 790.8(a), (b) (defining “principal activity” as any activity

as hours worked.” 29 C.F.R. § 785.38; see id. § 790.8(a), (b) (defining “principal activity” as any activity

the custodian of such weapons for the state. Section 790.08(2), F.S. If the individual arrested is acquitted

PER CURIAM. In this appeal from an order denying an application for return of property where charges which led to the confiscation of the property have been dismissed, the state correctly concedes error. Section 790.08(3), Florida Statutes (1993), mandates the return of weapons seized when the person whose weapons were seized is acquitted or where the charges have been dismissed....

...n the circuit court seeking return of a long list of items. The circuit court again denied the motion. We have jurisdiction, see Brown v. State, 613 So.2d 569 (Fla. 2d DCA 1993), and we reverse. When denying Hodge’s motion, the circuit court cited section 790.08(4), Florida Statutes (2000), which deals solely with the return of “[wjeapons, electric weapons or devices, and arms....” No such items were listed in Hodge’s motion for return of property, and for that reason the mentioned statute is wholly inapplicable to this matter....

...ated as evidence. On May 11,1984, the state filed an information charging aggravated assault. The state, however, announced a nolle pro-sequi on February 11, 1985. On April 9, 1985, after the speedy trial time had expired, Alvarez moved, pursuant to section 790.08(3) of the Florida Statutes (1983), 1 for return of the semiautomatic pistol. The trial judge denied the motion indicating that despite the statute it was her policy not to return guns. The state argues that because Alvarez was not acquitted and because the charges were not dismissed, section 790.08(3) does not apply....

...The state’s nolle pro-sequi does not avoid the effect of the rule. Fla.R.Crim.P. 3.191(h)(1), (2). It is senseless to require Alvarez to await this fruitless, and unlikely, act on the state’s part in order to obtain the return of his property under section 790.08(3). Where, as here, the state is forever barred from prosecuting an individual for offenses arising out of the incident during which the property was confiscated, section 790.08(3) mandates return of his property upon proper and timely motion. See Carneiro v. State, 464 So.2d 639 (Fla. 3d DCA 1985). Accordingly, the *471 order denying Alvarez’ motion for return of property is Reversed. . 790.08 Taking possession of weapons and arms; reports; disposition; custody.— (3) If the person arrested as aforesaid is acquitted of the offenses mentioned in subsection (2), the said weapons, electric weapons or devices, or arms taken from him as...

...ing that it would bring “no action”, the appellants were released and their cases were closed. Thereafter, the appellants properly moved to have their property returned, which motions were denied by the trial court, contrary to the provisions of Section 790.08(3), Florida Statutes (1993). “While we understand and may share the lower court’s reluctance to do so, the mandatory terms of Section 790.08(3), Florida Statutes” require that the motions filed by the appellants herein be granted....

...As part of the sentence, the trial judge withheld adjudication of guilt. By the time of the plea, Almanza had obtained a license to carry a concealed firearm. Almost two months after being sentenced, Almanza moved in the trial court for the return of his gun. The trial court denied the motion, ruling that section 790.08(2), Florida Statutes (1995), requires forfeiture of seized weapons upon conviction of a crime and that section 790.08(3) only permits the return of such weapons if the defendant is acquitted or the charges are dismissed. Sections 790.08(2) & (3) provide in relevant part: (2) If the person arrested as aforesaid is convicted of violating s....

...arms taken from him as aforesaid shall be returned to him; however, if he fails to call for or receive the same within 60 days from and after his acquittal or the dismissal of the charges against him, the same shall be delivered to the sheriff as aforesaid to be held by him as hereinafter provided. (Emphasis supplied). Section 790.08 does not control the situation presented in this case because Al-manza did not plead to a charge “involving the use or attempted use of such weapons,” one of the three categories of crimes which section 790.08(2) specifically articulates as the prerequisite to forfeiture....

...it is the duty of the court to resolve such doubt in favor of the citizens and against the state.” This rule of construction is applicable to statutes imposing a forfeiture of property. See McCaskill v. Union Naval Stores Co., 59 Fla. 571 , 52 So. 961 , 962 (1910). Section 790.08(2) requires forfeiture if an arrestee is “convicted of violating s....

...an offense involving the “use or attempted use” of a weapon within the meaning of this statute. Since Almanza was neither “acquitted” nor “convicted” of a charge “involving the use or attempted use” of a weapon within the meaning of section 790.08, that statute does not control the issue of whether the trial court should return his gun....

...This is not a ease where forfeiture of the firearm was included as a condition , of the plea, nor has the state commenced a forfeiture proceeding under the Florida Contraband Forfeiture Act, §§ 932.701-932.707, Florida Statutes (1995), or any other statute. Section 790.08(2) does not apply....

part of the employee’s principal activity.” Id. § 790.8(c). “Such a situation may exist where the changing

...prossed action against his son. The basis for the ruling was the conclusion that the motion, filed approximately one year after the nolle prosse, was untimely as in violation of the six month period for the reclamation of seized weapons provided by section 790.08(5), Florida Statutes (1989). This was error. Section 790.08 1 deals with fire *407 arms taken from an arrested person, used in the commission of an armed felony, or which had been abandoned or discarded....

...a search warrant or without a search warrant upon a view by the officer of a breach of the peace shall be returned except pursuant to an order of a circuit judge or a county court judge. See Sawyer v. Gable, 400 So.2d 992 (Fla. 3d DCA 1981). Unlike section 790.08(5), this provision has no specific time limitation....

...Since, even assuming the existence of such a requirement, 2 there is no question that the motion was filed within a reasonable time, and there is no other basis for denying the relief sought, the order under review is reversed with directions to grant the motion. Reversed. . Section 790.08(1-5) provides: 790.08 Taking possession of weapons and arms; reports; disposition; custody.— (1) Every officer making an arrest under the preceding section, or under any other law or municipal ordinance within the state, shall take possession of any weapons, elec...

CONFESSION OF ERROR PER CURIAM. As the state has correctly conceded, section 790.08(3), Florida Statutes (1995) requires reversal of the order below denying the appellant’s motion for return of his firearms....

order of a trial court judge." In addition, section 790.08, Florida Statutes, provides authority for law

...operty, which left three handguns seized from appellant during an arrest in the State’s custody. Because the seized firearms are neither the subject of any charges pending against appellant nor necessary evidence for the charges currently pending, Section 790.08(3) of the Florida Statutes mandates their return to appellant....

...After the State voluntarily terminated the prosecution of George Frye by announcing that it would bring “no action,” Frye was released and the case closed. Thereafter, Frye properly moved to have his firearm returned, which motion the trial court denied. § 790.08(3), Fla.Stat....

...See Olvey v. State, 609 So.2d 640 (Fla. 2d DCA 1992), clarified on rehearing, (Dec. 23, 1992); Tillman v. State, 592 So.2d 767 (Fla. 2d DCA 1992). Finally, appellant challenges condition twenty-two, which requires him to forfeit his brass knuckles. Under section 790.08(2), Florida Statutes (1993), when a person is arrested for carrying a concealed weapon while committing or attempting to commit a felony, the concealed weapon "shall" become forfeited, without the need for an order of forfeiture....

substantially the following question: Does section 790.08, Florida Statutes, control the disposition

...Based upon the evidence presented at the hearing, the court determined that the Windsor Police Department was the owner of the gun and ordered it returned to that police department. We reject appellant’s contention that the court should have looked to section 790.08, which provides specifically for the return of weapons seized by law enforcement....

...State, 760 So.2d 885, 887 (Fla.1999) (a burglary tool is one that is used or intended to be used to unlawfully enter the premises of another; it does not include tools or other objects intended to be used to commit an offense once inside the premises). Hence, the gun in this case does not qualify as a “burglary tool.” Section 790.08(3) requires the return of a weapon to a defendant if “charges” against him or her are dismissed. However, the “charges” referred to in the statute include only a “[violation of] s. 790.07, or of a similar offense under any municipal ordinance, or any other offense involving the use or attempted use of such weapons ...” § 790.08(2), Fla. Stat. (1997). Appellant was never charged with a violation of section 790.07. Moreover, he did not use or attempt to use the weapon in the commission of a felony within the meaning of section 790.08. In Almanza v. State, 711 So.2d 253 (Fla. 4th DCA 1998), we held that the passive concealment of a weapon did not constitute the use or attempted use of a weapon within the meaning of section 790.08. Almanza is directly on point. As we held in Almanza , even though section 790.08 is inapposite, a trial court has the inherent authority to order the return of property seized as part of a criminal investigation....

The Honorable Ralph L. Johnson Sheriff, Walton County 72 North Sixth Street DeFuniak Springs, Florida 32433 Dear Sheriff Johnson: You ask substantially the following question: Does section 790.08 , Florida Statutes, permit the sheriff's department to legally return a weapon to its former owner after the six-month period for claiming the weapon has passed and ownership of the weapon has been forfeited to the state pursuant to that statute? Section 790.08 , Florida Statutes, requires officers making an a arrest of a person who has a weapon while engaged in a criminal offense to take possession of such weapon and deliver it to the sheriff of the county or the chief of police of the municipality in which the arrest is made....

...However, if the person "fails to call for or receive the same within 60 days from and after his or her acquittal or the dismissal of the charges," the weapon shall be delivered to the sheriff to be held by the sheriff as provided for in the statute. In addition, section 790.08 (4), Florida Statutes, provides that weapons, electric weapons or devices, and arms coming into the hands of any of the peace officers of this state or its political subdivisions, which have been found abandoned or otherwise discarded or left in their hands and not reclaimed by the owners, shall within 60 days be delivered by such peace officers to the sheriff. Pursuant to section 790.08 (5), Florida Statutes: "Weapons, electric weapons or devices, and arms coming into the hands of the sheriff pursuant to subsections (3) and (4) aforesaid shall, unless reclaimed by the owner thereof within 6 months from the date the sa...

...If the weapon is suitable for use by the sheriff, it may be so used. If the weapon is not needed by the sheriff, it may be loaned to any other department of the state or to any county or municipality in need of such a weapon. If the weapon is not needed or is useless or unfit for use, section 790.08 (6) provides: "[It] shall be destroyed or otherwise disposed of by the sheriff as provided in chapter 705 or as provided in the Florida Contraband Forfeiture Act....

...e manner in which a thing is to be done or, in this case, specified how forfeited weapons are to be disposed of, it operates, in effect, as a prohibition against its being done in any other manner. 4 Accordingly, I am of the opinion that inasmuch as section 790.08 , Florida Statutes, prescribes how weapons forfeited to the state under the terms of that statute are to be disposed of, the sheriff is bound by the terms of the statute and may not return the weapon to the former owner once the six-month period for claiming the weapon has passed and ownership of the weapon has been forfeited to the state. 5 Sincerely, Charlie Crist Attorney General CC/tjw 1 Section 790.08 (1), Fla. Stat. It should be noted that s. 790.08 is not applicable to any municipality in any county having home rule under the State Constitution, see s. 790.08 (7), Fla. Stat.; Walton County, however, is a noncharter county. 2 Section 790.08 (2), Fla. Stat. 3 And see s. 790.225 (1), Fla. Stat., making it unlawful to manufacture, sell, or possess a ballistic self-propelled knife and making such knives subject to seizure and being disposed of as provided in s. 790.08 (1) and (6). See also s. 790.22 , Fla. Stat., providing for the seizure and disposal of any firearm that is possessed or used by a minor in violation of this section in accordance with s. 790.08 (1)-(6)....

PER CURIAM. Based on the State’s confession of error, with which we agree, the order under review is reversed and the cause is remanded with directions to grant the appellant’s motion for return of the handgun. See § 790.08(3), Fla.Stat....

The weapons had been forfeited pursuant to section 790.08, Florida Statutes, a statute similar to the

used by the sheriff's department? SUMMARY: Section 790.08(6), F.S., specifically requires that all forfeited