
    Antonio Luis ALVAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 85-1650.
    District Court of Appeal of Florida, Third District.
    March 18, 1986.
    Miguel Del Aguila, Miami, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Alvarez appeals an order denying his motion for return of property. We reverse.

On April 6, 1984, Alvarez was arrested on a charge of aggravated assault and his semiautomatic pistol was confiscated 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), 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. We disagree. Were the state to file new charges, it is clear that Alvarez could successfully move for discharge on speedy trial grounds. Fla.R.Crim.P. 3.191(a)(1), (d)(1), (i). 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 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 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. This subsection shall likewise apply to persons and their weapons, electric weapons or devices, or arms who have heretofore been acquitted or the charges against them dismissed.
      