MICHAEL J. PHEIL, APPELLANT,
v.
NOEL E. GRIFFIN, JR., APPELLEE
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The court reversed a trial court order forfeiting a Piper Aztec airplane with altered identification numbers under Florida's Contraband Forfeiture Act. The court held that possession of an aircraft with altered numbers is not subject to forfeiture because the airplane itself was not used as an instrumentality in committing a felony but rather the possession of the altered-number aircraft constitutes the felony itself.
The airplane is not subject to forfeiture because it does not fit the definition of contraband under the Act. To be forfeitable, property must either be a contraband article (such as controlled substances or gambling paraphernalia) or a vessel, motor vehicle, or aircraft used in the transportation, possession, or concealment of such contraband. Since possession of the altered-number aircraft is the essence of the crime itself, rather than an instrumentality ancillary to committing another felony, the plane cannot be forfeited.
[1] Forfeiture of property requires that the property be a "contraband article" as defined by statute, either as a prohibited item itself or as a vessel, motor vehicle, or ai…
[2] Personal property is considered a "contraband article" subject to forfeiture if it has been or is actually employed as an instrumentality in the commission of, or in aidi…
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Join FLexlaw to unlock all legal intelligence“an instrumentality 'is ancillary to the commission of the offense, rather than an element of the offense itself.'”
Establishes the key legal distinction that contraband must be auxiliary to an offense, not the essential element of the crime itself
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Join FLexlaw to unlock all legal intelligenceMichael Pheil owned a Piper Aztec airplane with altered identification numbers. Possession of an aircraft with altered identification numbers is a thi…
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COBB, Chief Judge.
This is an appeal from a final order of the circuit court requiring forfeiture of a private airplane. The substantive issue presented is whether a Piper Aztec airplane on which the assigned identification numbers have been altered, the possession of which is a third degree felony,1 is “contraband” under section 932.701(2)(e), Florida Statutes (1983), so as to permit its forfeiture pursuant to the Florida Contraband Forfeiture Act. The trial court concluded that it is, and ordered forfeiture.
Our decision in the recent case of City of Indian Harbour Beach v. Damron, 465 So. 2d 1382 (Fla. 5th DCA 1985) requires a reversal here. Possession of an airplane with altered identification numbers in this case is analogous to possession of the unregistered plane in Damron. In order to be subject to forfeiture, the plane must be a “contraband article” as defined under subsection (2)(a) through (d) of section 932.701 — i.e., a controlled substance, gambling paraphernalia, equipment violating the beverage or tobacco laws, motor fuel with unpaid tax, etc. — or a vessel, motor vehicle or aircraft used in the transportation, possession or concealment of such contraband. See § 932.703(1), Fla.Stat. (1983). This plane fits in neither category.
The confusion is occasioned by the language of subsection (2)(e) of section 932.-701, which further defines a “contraband article” as:
Any personal property, including, but not limited to, any item, object, tool, sub stance, device, weapon, machine, vehicle of any kind, money, securities, or currency, which has been or is actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony. (Emphasis added).
Under this definition of contraband, as we said in Damron, an instrumentality “is ancillary to the commission of the offense, rather than an element of the offense itself.” In the instant case, possession of the plane with the altered numbers is the essence of the crime itself. This approach is consistent with the principle that forfeiture statutes are not favored and must be strictly construed in favor of those against whom the penalty is imposed. See Smith v. Hindery, 454 So. 2d 663 (Fla. 1st DCA 1984).
The order of forfeiture is reversed and the case remanded to the trial court for entry of judgment for appellant and the return of the property to appellant.
REVERSED.
DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur. . § 329.11, Fla.Stat. (1983). We do not consider appellant's challenge to the constitutionality of this statute because that issue is not preserved for review. See In Interest of K.A.F., 442 So. 2d 365 (Fla. 5th DCA 1983); Hegeman-Harris Company, Inc. v. Allstate Pipe Supply, 400 So. 2d 1245 (Fla. 5th DCA 1981), petition for review dismissed, 411 So. 2d 380 (Fla.1981).
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The City OF ST. Petersburg Beach v. Jewell, 489 So. 2d 78 (Fla. 2d DCA 1986)…tutes (1985). The use of the Camaro was not shown to have been ancillary to the commission of those crimes because the Camaro was not shown to have been an assisting factor in the process of obtaining either of those documents. See Pheil v. Griffin, 469 So. 2d 942 (Fla. 5th DCA 1985); City of Indian Harbour Beach v. Damron, 465 So. 2d 1382 (Fla. 5th DCA 1985). See also Cabrera; City of Pompano Beach v. Enroute Ltd., Inc., 475 So. 2d 1269 (Fla. 4th DCA 1985). If the legislature meant that there should be a for…
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Town OF Oakland v. Mercer, 851 So. 2d 266 (Fla. 5th DCA 2003)…of their property. See In re Forfeiture of 1969 Piper Navajo Model PA-31-310, S/N-31-395 U.S. Registration N-1717G, 570 So. 2d 1357 (Fla. 4th DCA 1990); Cabrera v. Dept. of Natural Resources, 478 So. 2d 454, 456 (Fla. 3d DCA 1985); Pheil v. Griffin, 469 So. 2d 942 (Fla. 5th DCA 1985). AFFIRM. [*270] PETERSON, J., concurs. ORFINGER, J., concurs specially with opinion. . Odometer fraud is a third degree felony, section 319.35(5), Fla. Stat.2000, which provides a possible basis for forfeiture. See, In re: For…
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Pfeil v. State, 473 So. 2d 276 (Fla. 5th DCA 1985)…ORFINGER, Judge. The judgment of conviction is affirmed. However, because this court has previously determined that the appellant’s airplane was not subject to forfeiture, see Pheil v. Griffin, 469 So. 2d 942 (Fla. 5th DCA 1985), the condition of probation imposed here that appellant turn over the plane’s log book to the Lake County Sheriff’s Office is improper, and it is hereby stricken. As [*277] modified, the judgment and sentence are affirmed. AFFI…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest of K.A.F. v. State, 442 So. 2d 365 (Fla. 5th DCA 1983)
- Wayne and Vivian Smith v. L.J. "Lu" Hindery, 454 So. 2d 663 (Fla. 1st DCA 1984)
- Hegeman-Harris Co., Inc. v. ALL State Pipe Supply Co., Inc., 400 So. 2d 1245 (Fla. 5th DCA 1981)
- City OF Indian Harbour Beach v. Damron, 465 So. 2d 1382 (Fla. 5th DCA 1985)