IN RE FORFEITURE OF 1987 FORD ESCORT GL 2 DR. HATCHBACK, VIN 2FAPP2192HB164806. STATE OF FLORIDA, EX REL. LEE COUNTY, FOR THE USE AND BENEFIT OF THE LEE COUNTY SHERIFF'S DEPARTMENT, APPELLANT,
v.
RICHARD H. POTTS, APPELLEE
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The trial court erred in denying a forfeiture petition solely because the owner was not criminally prosecuted.
The Sheriff's Department sought forfeiture of a vehicle where drugs were found, but the trial court denied the petition because the owner was not pros…
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HALL, Judge.
The appellant^ the Lee County Sheriffs Department, challenges a trial court order denying its request for forfeiture of a vehicle, wherein a certain quantity of crack cocaine was discovered. The sheriffs department contends the trial court erred in denying its petition, without an evidentiary hearing, on grounds that the appellee, Richard H. Potts, the owner of the vehicle, was never criminally prosecuted for possession of crack cocaine. The sheriffs department argues that, at the very least, it was entitled to an evidentiary hearing pursuant to Department of Law Enforcement v. Real Property, 588 So. 2d 957 (Fla.1991), to determine whether the property at issue was in fact used to violate current drugs laws and was, thus, subject to forfeiture. We agree and remand the case for further proceedings.
In Department of Law Enforcement v. Real Property, the supreme court acknowledged that “[i]n forfeiture proceedings the state impinges on basic constitutional rights of individuals who may never have been formally charged with any civil or criminal wrongdoing.” Id. at 967. Similarly, this court has stated that “[a] forfeiture proceeding constitutes ‘a civil, in rem action that is independent of any factually related criminal actions.’ ” See In re Forfeiture of 1986 Pontiac Firebird, 600 So. 2d 1178, 1179 (Fla.2d DCA 1992), and cases cited therein.
Since, based on the foregoing, the viability of the instant forfeiture was not dependent on an underlying criminal prosecution, we find the trial court erred in denying the instant petition on the basis that a forfeiture action is so dependent. Thus, an evidentiary hearing, pursuant to Department of Law Enforcement v. Real Property, should have ensued.
Accordingly, the instant cause is remanded for proceedings consistent with this opinion.
SCHOONOVER, A.C.J., and ALTENBERND, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Kern v. State, 706 So. 2d 1366 (Fla. 5th DCA 1998)…y of drug paraphernalia cannot substitute as the jury trial for forfeiture of his property. A forfeiture proceeding is a civil in rem action that is independent of any factually related criminal action. In re Forfeiture of 1987 Ford Escort v. Potts, 624 So. 2d 385 (Fla. 2d DCA 1993); In re Forfeiture of 1986 Pontiac Firebird v. Burgess, 600 So. 2d 1178 (Fla. 2d DCA 1992); Navarro v. Kohan, 566 So. 2d 895 (Fla. 4th DCA 1990). See also § 932.704(2) (all civil forfeiture cases to be heard before a circuit judge…
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Nance v. Rutherford, 70 So. 3d 611 (Fla. 1st DCA 2011)…PER CURIAM. AFFIRMED. See In re Forfeiture of 1987 Ford Escort GL 2 Dr. Hatchback, VIN 2FAPP2192HB164806, 624 So. 2d 385, 385 (Fla. 2d DCA 1993) (forfeiture action under Florida Contraband Forfeiture Act viable even though vehicle owner was never prosecuted for possession of crack cocaine found in the vehicle). VAN NORTWICK, THOMAS, and MARSTILLER, JJ., concur.…
Authorities Cited
- Dep't OF LAW Enf't v. Real Prop., 588 So. 2d 957 (Fla. 1991)
- In re Forfeiture OF 1986 Pontiac Firebird v. Burgess, 600 So. 2d 1178 (Fla. 2d DCA 1992)