Holland v. State

Pope, Judge.

Appellant/defendant Henry Frank Holland was charged with simple assault, pointing a gun at another, and reckless conduct. Defendant pled nolo contendere to the charge of reckless conduct, and the State dismissed the other two charges. At the time of his arrest, six firearms were seized from defendant’s home.

In his sole enumeration of error, defendant argues that the trial court erred in denying his post-trial motion for return of the firearms seized from his home. In support of his argument, defendant relies on OCGA § 17-5-2, which authorizes the return of items, other than contraband, if no charges are preferred against the person arrested.

OCGA § 17-5-51 states that any weapon used in the commission of a crime is contraband and is forfeited. The record reveals that the reckless conduct charge against defendant resulted from the use of only one of the firearms seized; therefore, only this one firearm can be labelled contraband under OCGA § 17-5-51 and thus forfeited. The other firearms seized from defendant’s home are not contraband because those guns were not used in the commission of a crime and are not stolen property. Therefore, the remaining guns must be returned to defendant or to some party designated by him to receive his property. Gunter v. State, 182 Ga. App. 548 (356 SE2d 276) (1987); LoGiudice v. State, 164 Ga. App. 709 (4) (297 SE2d 499) (1982).

Decided April 15, 1992. Donald L. Hudson, Jr., for appellant. Gerald N. Blaney, Jr., Solicitor, Jessica R. Towne, Assistant Solicitor, for appellee.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.