ALLAN PAUL DARMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Allan Darman appeals the denial of his motion to return property seized during a traffic stop. The court reverses, holding that due process requires actual notice of the conclusion of criminal proceedings before property can be forfeited under Florida's unclaimed property statute.
The court held that procedural due process requires actual notice and an opportunity to be heard before property rights can be terminated under section 705.105. Because Darman received no actual, timely notice of the state's announcement of no information concluding the proceeding, his motion for return of property should not have been barred by the 60-day limitations period.
[1] Procedural due process requires that persons with an interest in seized property receive reasonable notice and an opportunity to be heard before their rights in the prope…
[2] Reasonable notice in forfeiture cases is construed to require actual notice.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Title to unclaimed evidence or unclaimed tangible personal property lawfully seized pursuant to a lawful investigation in the custody of the court or clerk of the court from a criminal proceeding or seized as evidence by and in the custody of a law enforcement agency shall vest permanently in the law enforcement agency 60 days after the conclusion of the proceeding.”
States the statutory framework governing forfeiture of seized property after criminal proceedings conclude
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Join FLexlaw to unlock all legal intelligencePolice stopped Darman on July 13, 1997, for an improper right turn and conducted a consensual search, discovering items including a fake police badge,…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Allan Paul Darman timely appeals from an order denying his motion for return of property seized by the state. We reverse.
Police stopped Darman on July 13, 1997 for making an improper right turn. As a result of a consensual search of his car, police discovered a black police wallet containing a fake Maine police badge, Dar-man’s IBMID identification card, two sets of handcuffs, a flashlight, a .38 caliber revolver, lock-picking instruments, bolt cutters, rubber gloves, a brown fake beard, and duct tape. Police then arrested Dar-man for possession of burglary tools and loitering and prowling, and seized the above items of property.
On August 6, 1997, the state decided not to prosecute Darman and filed an announcement of no information. Darman claimed he never received notice of the filing until October 24, 1997, more than 60 days after the filing of the announcement of no information. Immediately, defendant filed a motion to return his property. The trial court denied the motion as being untimely because it was filed more than 60 days after the filing of the announcement of no information. As such, the trial court ruled that title to Darman’s property became vested in the Pompano Beach Police Department.
Florida Statutes, section 705.105 (1997), governs the procedure regarding unclaimed personal property seized by police in circumstances such as those at bar. This statute provides, in pertinent part,
Title to unclaimed evidence or unclaimed tangible personal property lawfully seized pursuant to a lawful investigation in the custody of the court or clerk of the court from a criminal proceeding or seized as evidence by and in the custody of a law enforcement agency shall vest permanently in the law enforcement agency 60 days after the conclusion of the proceeding.
§ 705.105(1), Fla. Stat. Although not expressly stated, procedural due process requires that persons having an interest in such property are entitled to reasonable notice and an opportunity to be heard before their rights in the property can be terminated under this statute. See Doersam v. Brescher, 468 So. 2d 427, 428 (Fla. 4th DCA 1985) (holding that proceedings to forfeit property used in the commission of a felony do not meet minimum due process requirements unless persons having an interest in the property are given reasonable notice and opportunity to be heard). In all types of forfeiture cases courts have construed “reasonable” notice to require actual notice. See Department of Law Enforcement v. Real Property, 588 So. 2d 957, 965 (Fla.1991); Art. I, § 9, Fla. Const. In the instant case, the record does not establish that Darman received actual, timely notice of the state’s announcement of no information. The state never argued at the hearing on Darman’s motion that it served Darman or otherwise provided him with actual notice. Moreover, the announcement itself contained no certificate of mailing which indicated whether the state ever attempted to provide Darman with any notice. Darman argues that he was denied due process because he was never given any notice of the state’s August 6, 1997 announcement of no information, which was what concluded the proceeding. As such, he maintains that his motion for the return of his property should not have been barred by the 60 day limitations period under section 705.105(1). We agree.
As to the other issues Darman raises on appeal, we affirm.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.
GUNTHER, FARMER and TAYLOR, JJ., concur.
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Cited By
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Darman v. State, 774 So. 2d 798 (Fla. 4th DCA 2000)…WARNER, C.J. This is the second time this case involving appellant’s claim to a firearm seized by the police has been before us. In Darman v. State, 734 So. 2d 552 (Fla. 4th DCA 1999) (“Darman I”), we reversed the trial court’s determination that the motion for return of property was untimely and directed the trial court to hold a hearing on the motion. The trial court subsequently determined that the legal ow…
Authorities Cited
- Dep't OF LAW Enf't v. Real Prop., 588 So. 2d 957 (Fla. 1991)
- Doersam v. Brescher, 468 So. 2d 427 (Fla. 4th DCA 1985)