ISAAC HICKS, APPELLANT,
v.
THE CITY OF HIALEAH, APPELLEE. IN RE FORFEITURE OF $17,703, IN U.S. CURRENCY, ETC
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Service of process by certified mail in a forfeiture case is ineffective if it does not comply with ordinary rules for service of process in civil actions.
[1] In Florida forfeiture actions, service of the complaint and rule to show cause must comply with the ordinary rules governing service of process in civil actions, as speci…
[2] Statutory provisions regarding publication of notice and certified mail service of notice in forfeiture proceedings do not supersede the general rules for service of proc…
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Join FLexlaw to unlock all legal intelligenceThe City seized $17,703 from Hicks during a drug trafficking arrest and initiated forfeiture proceedings. The City served Hicks with the forfeiture co…
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COPE, Judge.
Isaac Hicks appeals a non-final order in a forfeiture case. We reverse.
The City of Hialeah Police Department arrested Hicks for drug trafficking. At the time of the arrest the police seized $17,703 and other personal property. The City initiated forfeiture proceedings.1
Insofar as pertinent here, the City served Hicks with the forfeiture complaint and probable cause determination by using certified mail, not by personal service. Hicks moved to dismiss the complaint, arguing that service by certified mail is ineffective.2 The trial court denied the motion to dismiss and Hicks has appealed.
In 1991 the Florida Supreme Court specified the procedures to be followed in the litigation of forfeiture actions. Department of Law Enforcement v. Real Property, 588 So. 2d 957 (Fla.1991). The court said:
The agency seeking forfeiture may file its complaint by applying for the issuance of a rule to show cause in the circuit court of jurisdiction where the property was restrained or where the alleged offense occurred. The petition must be verified and supported by affidavit. If the court determines that the petition on its face sufficiently states a cause of action for forfeiture, the court shall sign and issue the rule. A copy of the petition and the rule shall be served on all persons whom the agency knows, or with reasonable investigation should know, have a legal interest in the property. The rule to show cause also shall require that responsive pleadings and affirmative defenses be filed within twenty days of service of the rule to show cause. As stated above, ... in personal property forfeiture actions, the state must notify 'interested parties that they have a right to an adversarial preliminary hearing upon request. The Florida Rules of Civil Procedure shall otherwise control service of process, discovery, and other measures appropriate for the administration of forfeiture proceedings.
Id. at 967 (emphasis added). Under the quoted language, the ordinary rules governing service of process in civil actions govern service of the complaint and rule to show cause.
In 1992 the legislature comprehensively revised the Florida Contraband Forfeiture Act. Ch. 92-54, Laws of Fla., codified as §§ 932.701-.707, Fla.Stat. (Supp.1992). The City interprets the revised Act as allowing the service of the complaint and rule to show cause by certified mail instead of the ordinary methods for service of process in a civil action.
We do not find a provision in the Act which dispenses with the ordinary rules for service of the forfeiture complaint and rule to show cause as specified by Department of Law Enforcement v. Real Property. The City relies on paragraph 932.704(6)(a), which requires publication of “notice of the forfeiture complaint ... in a newspaper of general circulation,” and service of “notice of the forfeiture complaint by certified mail” on certain individuals. Id.; see also id. § 932.704(6)(b). In our view the cited language addresses other issues, see id. § 932.704(6)(a), (b), and does not address the method of service of process to be employed in serving the complaint and rule to show cause.3 Consequently, the method of service of process remains that which was specified in Department of Law Enforcement v. Real Property, 588 So. 2d at 967. We conclude therefore that service of process by certified mail on Hicks must be quashed without prejudice to the City to accomplish service of process by an appropriate method. The order under review is reversed and the cause remanded with directions to quash service of process.
. During the pendency of the forfeiture proceedings, Hicks was acquitted of drug trafficking charges arising out of the arrest.
. Hicks also argued that if service of the complaint by certified mail was impermissible, then the 120-day time period for service of the complaint under Florida Rule of Civil Procedure 1.070(i) had elapsed and the complaint should be dismissed without prejudice. This court has held that an order denying dismissal under Rule 1.070(i) (formerly Rule 1.070(j)) is a nonap-pealable, non-final order. See Cole v. Posada, 555 So. 2d 367 (Fla. 3d DCA 1989); see also DCA of Hialeah, Inc. v. Lago Grande One Condominium Ass'n, Inc., 559 So. 2d 1178 (Fla. 3d DCA 1990); Honorat v. Genova, 579 So. 2d 286 (Fla. 3d DCA 1991). But see Austin v. Gaylord, 603 So. 2d 66 (Fla. 1st DCA 199f2). Accordingly, we do not reach Hicks’ argument under Rule 1.070(i).
. We note that the language used in subsection 932.704(6) is confusing and could benefit from legislative clarification. (1) Paragraph 932.704(6)(a) refers to "notice of the forfeiture complaint” and implies that a complaint has already been filed. Paragraph 932.704(6)(b) specifies the contents of the notice, contains a cross-reference to paragraph 932.703(2)(a) and (b), and indicates that the notice must "state the name of the court in which the complaint will be filed." (Emphasis added). (2) The first sentence of paragraph 932.704(6)(a) refers to title holders, owners, and holders of a perfected security interest, while the latter part of the same sentence refers only to service of notice of the forfeiture complaint by certified mail on “each person having such security interest in the property.”
For present purposes we do not address the interpretation of subsection 932.704(6), other than to hold that subsection 932.704(6) does not control the method of service of the forfeiture complaint and rule to show cause.
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Paredes v. Cochran, 666 So. 2d 991 (Fla. 4th DCA 1996)…PER CURIAM. We reverse an order denying a motion to vacate a default judgment in this forfeiture action, because appellant was not properly served. We agree with the conclusion of the third district, in Hicks v. City of Hialeah, 647 So. 2d 984 (Fla. 3d DCA 1994), that service of process of the complaint and rule to show cause in forfeiture actions is governed by the same rules as service of process in other civil actions. Service by certified mail on appellant’s parole officer in New York…
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Nat'l Powerboat Ass'n, Inc. v. Calabro, 652 So. 2d 508 (Fla. 3d DCA 1995)…m that portion of the order which denied defendant’s motion to dismiss filed pursuant to Florida Rule of Civil Procedure 1.070(i). An order denying a motion to dismiss based on that rule is a non-final, nonappealable order. Hicks v. City of Hialeah, 647 So. 2d 984 (Fla. 3d DCA 1994); Polo v. Polo, 643 So. 2d 55 (Fla. 3d DCA 1994), review dismissed, 651 So. 2d 1195 (Fla.1995); RD & G Leasing, Inc. v. Stebnicki 626 So. 2d 1002 (Fla. 3d DCA 1993); Rosenthal v. Watkins, 623 So. 2d 855 (Fla. 3d DCA 1993); Honorat…
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Rubin Young v. Hon. Donald J. Trump (S.D. Fla. 2025)…ppropriate methods of service, service by certified mail does not constitute 'delivery' as generally required for service under Florida law." (footnote omitted)); Paredes v. Cochran, 666 So. 2d 991, 992 (Fla. 4th DCA 1996); Hicks v. City of Hialeah, 647 So. 2d 984, 985-86 (Fla. 3d DCA 1994). Under Rule 4(j), a plaintiff may also serve a state “that is subject to suit” in two ways. See Fed. R. Civ. P. 4(j)(2). First, the plaintiff can deliver “a copy of the summons and of the complaint to" the "chief executiv…
Authorities Cited
- Dep't OF LAW Enf't v. Real Prop., 588 So. 2d 957 (Fla. 1991)
- Austin v. Gaylord, 603 So. 2d 66 (Fla. 1st DCA 1992)
- Sanford H. Cole, M.D. v. Posada, 555 So. 2d 367 (Fla. 3d DCA 1989)
- Diaz v. State, 559 So. 2d 1178 (Fla. 3d DCA 1990)
- Honorat v. Genova, 579 So. 2d 286 (Fla. 3d DCA 1991)
- Francis v. State, 579 So. 2d 286 (Fla. 3d DCA 1991)