IN RE FORFEITURE OF FIFTY FIVE THOUSAND FORTY-FIVE DOLLARS IN U.S. CURRENCY. MARLO ALBURY, APPELLANT,
v.
CITY OF NORTH PORT, APPELLEE
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Marlo Albury challenges a civil forfeiture order for $55,045 in currency seized by North Port police. The court reversed the forfeiture judgment, holding that because the appellate court had previously invalidated the initial seizure on Fourth Amendment grounds, the subsequent forfeiture proceeding lacked statutory basis and jurisdiction.
The court held that it lacked jurisdiction to enter the final forfeiture judgment because the appellate court's reversal of the probable cause finding invalidated the seizure, which is the only action authorized by Florida law to initiate a forfeiture proceeding. Without a valid seizure and judicial detention, the statutory provisions governing forfeiture do not apply.
[1] A forfeiture proceeding is a civil, in rem action filed against the property itself.
[2] If the initial seizure of property in a forfeiture action is determined to be invalid, the subsequent forfeiture proceeding is a nullity.
Previewing 2 of 5 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“A forfeiture action is commenced by seizing the subject property. 'The only action expressly authorized by the [Florida Contraband Forfeiture] Act to initiate forfeiture is the actual seizure of the subject property.'”
Establishes that seizure is the exclusive mechanism to commence forfeiture proceedings under Florida law.
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Join FLexlaw to unlock all legal intelligencePolice stopped a vehicle in which Albury was a passenger on March 2, 1999, and confiscated $55,045. The trial court entered an order finding probable …
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DAVIS, Judge.
Mario Albury challenges the trial court’s order denying his motion to set aside the final order of forfeiture of $55,045. He suggests that the trial court was without jurisdiction to enter the order. We agree and reverse.
On March 2, 1999, a North Port police officer stopped the vehicle in which Albury was a passenger. As a result of this stop, the police found and confiscated United States currency in the amount of $55,045. The city initiated a forfeiture proceeding, alleging that the money was drug related.
On March 22, 1999, the trial court entered an order finding that there was probable cause to believe that the property had been used in violation of Florida law and authorizing the retention of the property until the disposition of the forfeiture action. Albury appealed this order. During the pendency of the appeal, Al-bury became further involved with law enforcement authorities.
On September 27, 1999, he entered a written plea agreement with federal authorities by which he specifically admitted that the money seized by the City of North Port on March 2, 1999, was in fact drug-related money. Subsequently, on March 6, 2000, the trial court entered a final summary judgment in favor of the city in the forfeiture proceedings.
On March 27, 2000, this court reversed the trial court’s order finding probable cause and remanded the issue back to the trial court.
Albury then filed a motion to set aside the final summary judgment of forfeiture. He argued that the ultimate issue of forfeiture cannot be reached without a valid seizure. Since the seizure here was invalidated by the appellate decision, he suggested that the final judgment was improper. The trial court denied the motion, and Albury challenges this denial.
A forfeiture action is commenced by seizing the subject property. “The only action expressly authorized by the [Florida Contraband Forfeiture] Act to initiate forfeiture is the actual seizure of the subject property.” Dep’t of Law Enforcement v. Real Prop., 588 So. 2d 957, 962 (Fla.1991).
See also §§ 932.701-.707, Fla. Stat. (1999).
The forfeiture proceeding is a civil, in rem action filed against the property itself. Ruth v. Dep’t of Legal Affairs, 684 So. 2d 181 (Fla.1996).
If the initial seizure is determined to be invalid, the subsequent forfeiture proceeding is necessarily a nullity. Daniels v. Cochran, 654 So. 2d 609 (Fla. 4th DCA 1995).1 Furthermore, civil forfeiture is a statutorily-created proceeding that must be strictly construed. Byrom v. Gallagher, 609 So. 2d 24 (Fla.1992).
While the statute provides details as to how to proceed once the subject property has been retained pursuant to the court’s initial order, it is silent as to proceeding in forfeiture against property not seized and judicially detained. A strict reading of the statute indicates that if, in fact, the trial court failed to find probable cause to retain the property, the remainder of the provisions of the statute do not apply. See §§ 932.701-.707. The same should be true if the trial court’s finding of probable cause is reversed on appeal. Since this court has previously found that the trial court erred in finding the existence of probable cause to retain the subject property, the subsequent proceedings were without statutory basis and must be set aside.
Accordingly, the trial court erred in denying the motion to set aside the final order of forfeiture.
Reversed.
ALTENBERND and NORTHCUTT, JJ., Concur. . The City argues that Daniels does not apply. We disagree. In Daniels, the appellate court reversed the final order of forfeiture. The trial court had entered a default as a sanction because the claimant refused to testify or respond to discovery. Based on the default, a final order was entered without a jury trial. Although the appellate court found this to be error, the appellate court did not send the case back for a jury trial but, after finding the seizure to be the result of an illegal search, reversed the trial court’s order and remanded the case with instructions to release the currency.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Satish B. Patel v. State, 141 So. 3d 1239 (Fla. 5th DCA 2014)…ween civil and criminal forfeiture actions. A civil forfeiture is an “in rem” action brought against the property. Kern v. State, 706 So. 2d 1366, 1369 (Fla. 5th DCA 1998); In re Forfeiture of Fifty Five Thousand Forty-Five Dollars in U.S. Currency, 809 So. 2d 105, 106 (Fla. 2d DCA 2002). It is premised on a legal fiction that the property, not its owner, is held guilty. Rosado v. Bieluch, 827 So. 2d 1115, 1117 (Fla. 4th DCA 2002); U.S. v. Ursery, 518 U.S. 267, 275, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) (“ ‘…
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Rosado v. Bieluch, 827 So. 2d 1115 (Fla. 4th DCA 2002)…the property which is proceeded against and, “ ‘by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient’ ”); In re Forfeiture of Fifty Five Thousand Forty-Five Dollars in U.S. Currency, 809 So. 2d 105, 106 (Fla. 2d DCA 2002) (“The forfeiture proceeding is a civil, in rem action filed against the property itself.”). As an in rem proceeding, a forfeiture action is not a “civil action for damages.” See Black’s Law Dictionary 793 (6th ed.1990) (expla…
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Agresta v. City OF Maitland, 159 So. 3d 876 (Fla. 5th DCA 2015)…een civil and criminal forfeiture actions. A civil forfeiture is an “in rem” action brought against the property. Kern v. State, 706 So. 2d 1366, 1369 (Fla. 5th DCA 1998); In re Forfeiture of Fifty Five Thousand Forty-Five Dollars in U.S. Currency, 809 So. 2d 105, 106 (Fla. 2d DCA 2002). It is premised on a legal fiction that the property, not its owner, is held guilty. Rosado v. Bieluch, 827 So. 2d 1115, 1117 (Fla. 4th DCA 2002); U.S. v. Ursery, 518 U.S. 267, 275, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) (“ ‘…
Authorities Cited
- Dep't OF LAW Enf't v. Real Prop., 588 So. 2d 957 (Fla. 1991)
- Ruth v. Dep't OF Legal Affairs, 684 So. 2d 181 (Fla. 1996)
- Byrom v. Walt Gallagher, 609 So. 2d 24 (Fla. 1992)
- Daniels v. Cochran, 654 So. 2d 609 (Fla. 4th DCA 1995)