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Motion for Return of Firearm

If a law enforcement officer took your firearm, then you must make a written claim for the firearm within 60 days of the seizure or those firearms might be destroyed by the agency. The written claim for the firearm should be make to the agency that has the firearm. Attach to the letter any police report referencing the seizure or any other document that explains it. List the time, date and location from where the items were seized.

If a law enforcement agency in Hillsborough County seized any firearm in a case where no arrest was made or where no case was established in the court system, than the owner of the firearm can seek return of the firearm under Section 933.14(3), Florida Statutes in Division "O". The individual or their attorney must file a sworn Petition for Return of the Firearm or Firearms with the clerk of court.

If the firearm was seized and a criminal case was established in the court system, then the motion for return of the firearm should be heard by the judge in that division. If no judge has been assigned, then the clerk's office will then assign those petitions for the return of a firearm to First Appearance / Emergency Criminal Division "O" or another division, depending on the circumstances. The petitions must be filed in the Clerk's Administrative File. See Administrative Order S-2006-146.

In many of these cases, the law enforcement agency will refuse to release the firearm without a court order citing Section 933.14(3), Florida Statutes, which provides: "No pistol or firearm taken by any officer with 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 trial court judge." In many of these cases, the court order should not be necessary because no "breach of the peace" occurred and the firearm was just seized without any legal authority, but even in those cases, a court order will speed up the release of the firearm.

Keep in mind that the law enforcement agency will often refuse to release a firearm to a person on probation (even if the person is on misdemeanor probation that is not a form of domestic violence). That person needs to make a written claim for the firearm so that it is not destroyed and ask if another person can pick up the firearm and take possession of it. Filling a motion for the return of the firearm is usually considered to be a claim for the firearm that will prevent it from being destroyed while arrangments are being made for it to be picked up.

Requirements for the Petition for Return of a Firearm in Hillsborough County

The Petition for Return of a Firearm must specifically identify the firearm sought to be returned and should further allege:

  1. the firearm is the petitioner's personal property;
  2. the firearm is not being held as evidence by the law enforcement agency;
  3. the firearm was not involved in criminal activity;
  4. the petitioner is not disqualified under any state or federal law from possessing a firearm;
    • the petitioner has not been convicted of a misdemeanor crime of domestic violence, or
    • has not had adjudication of guilt withheld or imposition of sentence suspended on any misdemeanor crime of domestic violence unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled or expunction has occurred;
    • the petitioner has not been committed to a mental institution as defined in section 790.065(2)(a)4.b., Florida Statutes, or
    • if petitioner has been committed to a mental institution, petitioner possesses a certificate from a licensed psychiatrist that he or she has not suffered from a mental disability for at least 5 years since the commitment to a mental institution; and
    • the petitioner has not been adjudicated mentally defective as defined in seciton 79.065(2)(a)4.a, Florida Statutes, or
    • if the petitioner has been adjudicated mentally defective, petitioner has had his or her capacity restored by court order for at least 5 years.

The petitioner must also attach to the motion a copy of the agency report that describes the event(s) that led to the seizure of the firearm(s). For instance, the petition should specify whether the firearm was seized by the Hillsborough County Sheriff's Office, the Tampa Police Department, the Florida Highway Patrol, the Temple Terrace Police Department, the Plant City Police Department, the Police Department for the Tampa International Airport, etc.

A copy of the Petition for Return of Firearm and notice of hearing on the petition will be provided to the legal counsel for the law enforcement agency in possession of the firearm(s) subject to the petition. A Petition for Return of Firearm(s) may seek the return of multiple firearms.

Nothing in this section prevents a law enforcement agency and a petitioner from entering into a stipulation for the return of a firearm thereby alleviating the need for a court hearing. A proposed order authorizing the release of a firearm must be attached to all stipulations presented to the court.

Can a Person on Misdemeanor Probation Possess a Firearm?

Some law enforcement agencies will also take the position that a person on misdemeanor probation is not permitted to take possession of the firearm because of Florida Statute Section 948.03(m)(1)-(2). In many cases, the judgment and sentence signed by the judge will make no mention of any prohibition on possessing a firearm. In some cases, the judgment and sentence will reference the written probation order signed by the probation officer that might include such a prohibition. So you should look at those documents when deciding whether a person is prohibited from possessing a firearm on probation. That condition might have been imposed as a "standard condition" even through it was not orally pronouced at the time of sentencing.

Florida Statute Section 948.03(m)(1)-(2) provides:

948.03 Terms and conditions of probation.—

(1) The court shall determine the terms and conditions of probation. Conditions specified in this section do not require oral pronouncement at the time of sentencing and may be considered standard conditions of probation. These conditions may include among them the following, that the probationer or offender in community control shall:....

(m) Be prohibited from possessing, carrying, or owning any:

1. Firearm.

2. Weapon without first procuring the consent of the probation officer.

Finding an Attorney for the Petition for the Return of a Firearm in Tampa, FL

If your firearm was seized pursuant to Section 933.14(3), Florida Statutes, by a law enforcement agency in Hillsborough County, FL, either with or without a search warrant, then contact an experienced criminal defense attorney to assist you in filing and litigating the motion.

For cases in Tampa or Plant City in Hillsborough County, or the surrounding counties in the greater Tampa Bay area, contact the experienced criminal defense attorneys at the Sammis Law Firm. We represent clients on a variety of felony and misdemeanor offenses involving a weapon or firearm in Florida. Call us for more information at 813-250-0500 about your case involving a firearm or weapon crime.

This article was last updated on Friday, October 30, 2015.