CITY OF INDIAN HARBOUR BEACH, A MUNICIPAL CORPORATION, APPELLANT,
v.
BILLY E. DAMRON D/B/A DAMRON MARINE CONSTRUCTION, MICHAEL DONALD DUNVORDAHL, AND THE CESSNA 150 G SEAPLANE, AIRCRAFT SERIAL NUMBER 15066044, APPELLEES
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The City of Indian Harbour Beach sought forfeiture of a Cessna aircraft under Florida's Contraband Forfeiture Act, claiming it was an instrumentality used in committing a felony—possession of an unregistered aircraft. The court held that the aircraft could not be forfeited because possession of the unregistered aircraft is the essence of the crime itself, not a separate offense in which the aircraft was used as an instrument.
The aircraft was not subject to forfeiture. An instrumentality must provide a means or assist in the commission of an offense that is separate from and ancillary to the offense itself. Since possession of an unregistered aircraft is the essence of the crime itself rather than a means to commit a different crime, the aircraft did not qualify as an instrumentality under the Contraband Forfeiture Act.
[1] An aircraft is not subject to forfeiture under the Florida Contraband Forfeiture Act when its possession constitutes the felony itself, rather than being employed as an i…
[2] Forfeiture under the Florida Contraband Forfeiture Act requires that the property be employed as an instrumentality, meaning it provides a means or assists in the commiss…
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Join FLexlaw to unlock all legal intelligence“An instrumentality provides a means or assists in the commission of an offense; it is ancillary to the commission of the offense, rather than an element of the offense itself.”
Establishes the legal definition and requirement that an instrumentality must assist in committing an offense as a separate matter, not be the essence of the offense
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Join FLexlaw to unlock all legal intelligenceBilly Damron possessed a Cessna 150 G Seaplane that was not registered with the Federal Aviation Administration. Although the prior owner had register…
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SHARP, Judge.
The City of Indian Harbour Beach appeals from an order denying forfeiture of a Cessna aircraft under the Florida Contraband Forfeiture Act (Act). §§ 932.701-704, Fla.Stat. (1983). The issue on appeal is whether the Cessna was “employed as an instrumentality in the commission of” a felony, so as to make it “contraband” under section 932.701(2)(e), Florida Statutes (1983), and thus subject to forfeiture. We hold it was not and affirm.
The Cessna was not registered to the present owner (Damron) with the Federal Aviation Administration. Although the pri-or owner had registered the plane, he had not forwarded the papers to complete the transfer of registration to Damron. The City seized the plane, claiming Damron’s possession of the unregistered aircraft violated section 329.10, Florida Statutes (1983), which makes the possession of an improperly registered aircraft a third degree felony.1
Section 932.701, Florida Statutes (1983) defines contraband for purposes of the Act. The relevant definition is set out in (2)(e) as follows:
Any personal property ... which has been or is actually employed as an instru mentality in the commission ... of any felony.
An instrumentality provides a means or assists in the commission of an offense; it is ancillary to the. commission of the offense, rather than an element of the offense itself. For example, had the appellee used a printer to produce counterfeit registration documents, the printer would be an instrumentality.
The aircraft, however, is not the means or instrument by which the offense of possession of an improperly registered aircraft is committed. Instead, possession of an unregistered aircraft is the essence of the crime itself. To qualify as an instrumentality, the Cessna, which is not contraband per se, must have assisted in the commission of another, different felony. Possession of an improperly registered aircraft under the circumstances and conditions set forth in section 329.10 is a felony, but that status or state does not give rise to a different crime.
This case is distinguishable from In Re Forfeiture of One 1978 Ford F250 Truck, 438 So. 2d 1023 (Fla. 5th DCA 1983) where an illegal shotgun was being transported in a vehicle. We held that the truck in that case was being used as an instrumentality in the accomplishment of a different crime — possession of a short-barreled shotgun — and, therefore, it was subject to forfeiture pursuant to section 932.701(2)(e).
AFFIRMED.
ORFINGER and COWART, JJ., concur. . The parties conceded that section 329.10 had been violated, so we do not address that issue.
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In re Forfeiture OF 1969 Piper Navajo, 592 So. 2d 233 (Fla. 1992)…ion, and prohibition of controlled substances. Ch. 87-243, § 4, Laws of Fla. The amendment was prompted by case law which held that forfeiture was not an available penalty for violations of section 330.40. See City of Indian Harbour Beach v. Damron, 465 So. 2d 1382, 1383 (Fla. 5th DCA 1985); Staff of Florida Senate Comm, on Judiciary-Criminal, CS for HB 1467 (1987), Staff Analysis (revised May 25, 1987). . §§ 932.701-932.704, Fla.Stat. (1987). We recently upheld the constitutionality of the Florida Contraband…
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In re Forfeiture OF ONE Cessna 337H Aircraft. City OF Pompano Beach v. Enroute Ltd., Inc., 475 So. 2d 1269 (Fla. 4th DCA 1985)…lation of section 329.10 is subject to forfeiture under the Florida Contraband Forfeiture Act, is erroneous. Recently, the Fifth District Court of Appeal reviewed and categorically rejected this premise in the City of Indian Harbour Beach v. Damron, 465 So. 2d 1382 (Fla. 5th DCA 1985). There, the court explained that under the Florida Contraband Forfeiture Act personal property becomes contraband and subject to forfeiture only if it is employed as an “instrumentality” in the commission of any felony. Alluding…
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- In re Forfeiture OF ONE 1978 Ford F250 Custom Pick UP Truck v. Bergeron, 438 So. 2d 1023 (Fla. 5th DCA 1983)