Agresta v. City of Maitland
| Decision Date | 20 February 2015 |
| Docket Number | No. 5D13–3577.,5D13–3577. |
| Citation | 159 So.3d 876 |
| Parties | Lena G. AGRESTA, Personal Representative, etc., Appellant, v. CITY OF MAITLAND, etc., Appellee. |
| Court | Florida District Court of Appeals |
Roger Scott, Jr. and Catherine A. Medling, of Scott & Medling, P.A., Orlando, for Appellant.
Clifford B. Shepard, of Shepard, Smith & Cassady, P.A., Maitland, and Erin L. DeYoung, Maitland, for Appellee.
ON MOTIONS FOR REHEARING, CLARIFICATION AND CERTIFICATION
We grant the City of Maitland's motions for rehearing and clarification, withdraw our previous opinion, and substitute the following in its place. We deny the City's motion for certification.
Lena G. Agresta, the Personal Representative of the Estate of Joseph Farley,1 challenges the forfeiture of a parcel of real property on constitutional grounds. Agresta argues that the forfeiture violates the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. We agree and reverse.
Farley was convicted of cultivating cannabis, stealing electricity, and misdemeanor possession of cannabis, all of which occurred in his home. The City brought this civil forfeiture proceeding against the home implicated in the underlying marijuana operation pursuant to the Florida Contraband Forfeiture Act (the “Act”).2 The court granted final summary judgment in favor of the City, finding that the property was both an instrumentality of the crime and that forfeiture was proportional to the offenses for which the owner was convicted. Agresta does not challenge the trial court's findings on the instrumentality test. Therefore, we do not address that issue. Rather, Agresta's sole challenge is on the issue of proportionality. We review the trial court's legal conclusion regarding the forfeiture de novo. See United States v. Browne, 505 F.3d 1229, 1278 (11th Cir.2007) ; In re Forfeiture of Seven Thousand and 00/100 Dollars ($7000.00) U.S. Currency, 942 So.2d 1039, 1042 (Fla. 2d DCA 2006).
The United States Supreme Court has held that the Excessive Fines Clause of the Eighth Amendment applies to forfeitures under 21 U.S.C. § 881(a)(4). Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Because provisions of the Act are similar to the provision of 21 U.S.C. § 881(a)(4), the Austin analysis applies. E.g., In re Forfeiture of 1990 Chevrolet Blazer, 684 So.2d 197, 198 (Fla. 2d DCA 1996) ; In re One 1993 Dodge Intrepid, 645 So.2d 551, 551–52 (Fla. 2d DCA 1994).
To determine if a forfeiture is proportional, the Eleventh Circuit Court of Appeals, like most federal courts, has noted that courts must ask: “Given the offense for which the owner is being punished, is the fine [ [[3 ] (imposed by civil forfeiture) excessive?” United States v. 427 & 429 Hall Street, 74 F.3d 1165, 1172 (11th Cir.1996). In answering this question, the Eleventh Circuit identified three factors in evaluating whether the forfeiture is excessive. The factors are “(1) whether the defendant falls into the class of persons at whom the criminal statute was principally directed; (2) other penalties authorized by the legislature ...; and (3) the harm caused by the defendant.” Browne, 505 F.3d at 1281.
Applying those factors to the instant facts leads us to conclude that the forfeiture is excessive. Farley clearly fell within the class of persons at whom the Act was principally directed. Based on the charges of which he was convicted, Farley faced an eleven-year maximum penalty and an $11,000 maximum fine. The value of the home sought to be forfeited was between $238,000 and $295,000. There was no evidence that Farley caused harm beyond his commission of the offenses underlying his convictions.4 The Eleventh Circuit has recognized the difficulty of putting a monetary value on the gravity of the offense and has suggested that a consideration of the fines approved by the legislature indicates the monetary value society places on the harmful conduct. See United States v. 817 N.E. 29th Drive, 175 F.3d 1304, 1309–10 (11th Cir.1999) ().
While there appears to be no bright-line rule, looking primarily at the maximum fines Farley faced, we find the forfeiture in this case violates the Excessive Fines Clause and reverse. On remand, the trial court shall conduct further proceedings to establish a forfeiture amount that does not violate the Excessive Fines Clause of the Eighth Amendment to the United States Constitution.
REVERSED and REMANDED.
I agree with the majority that in some instances the Florida Contraband Forfeiture Act (“FCFA”)5 serves a punitive purpose.6 I also agree that when forfeitures under the FCFA are not solely remedial, they are subject to an excessive fines analysis. See Austin v. United States, 509 U.S. 602, 621–22, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (). However, I disagree with the majority view that the forfeiture in this case is excessive.7 Accordingly, after further review, I would grant Appellee's Motion for Rehearing, withdraw our previous opinion, and affirm the trial court's order of forfeiture.
As we explained in Patel v. State, 141 So.3d 1239, 1242 (Fla. 5th DCA 2014), there is a distinction between 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) . Kern, 706 So.2d at 1369. A criminal forfeiture, on the other hand, is a penalty or punishment imposed after a person has been convicted of a crime. Heather J. Garretson, Federal Criminal Forfeiture: A Royal Pain in the Assets, 18 S. Cal. Rev. L. & Soc. Just. 45, 47–48 (Fall 2008). It is an “in personam criminal remedy, targeted primarily at the defendant who committed the offense.” Id. at 48.
There is also a distinction between the excessiveness inquiry required for civil and criminal forfeitures. As Justice Scalia pointed out in his concurring opinion in Austin, “the excessiveness inquiry for statutory in rem forfeitures is different from the usual excessiveness inquiry.” 509 U.S. at 623, 113 S.Ct. 2801 (Scalia, J., concurring). He iterated that “[t]he question is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.” Id. at 628, 113 S.Ct. 2801.
With this distinction in mind, our sister court in In re Forfeiture of 1990 Chevrolet Blazer VIN: IGNCT18Z3L8139145, 684 So.2d 197, 198 (Fla. 2d DCA 1996), outlined a test for determining whether a civil forfeiture pursuant to the FCFA is excessive. The test contains two parts: an instrumentality test followed by a proportionality review. Id.
Factors used to determine whether the instrumentality test is met include:
(1) whether the use of the property in the offense was deliberate and planned or merely incidental and fortuitous; (2) whether the property was important to the success of the illegal activity; (3) the time during which the property was illegally used and the spatial extent of its use; (4) whether its illegal use was an isolated event or had been repeated; and (5) whether the purpose of acquiring, maintaining or using the property was to carry out the offense.
Id. (quoting United States v. Chandler, 36 F.3d 358, 365 (4th Cir.1994) ).
Utilizing the factors quoted above, as the Appellant rightly concedes, the relationship between the forfeited property and the offense meets the instrumentality test. The evidence suggests that the forfeited property was used for the sole purpose of unlawfully manufacturing and cultivating cannabis for sale and distribution. When officers initially entered Farley's property to investigate a possible burglary in progress, they were met with the pungent odor of cannabis. In plain view throughout the uninhabited house were signs of hydroponically cultivated cannabis. Indeed, upon execution of a search warrant, three cannabis grow rooms8 were located in the house, along with fifteen mature cannabis plants, twenty-one small cannabis plants with root stems, a glass jar containing an undetermined quantity of cannabis, approximately eighty-seven grams of cannabis in a gallon-sized plastic bag, as well as an assortment of drug paraphernalia, growing manuals and equipment. Additionally, over $8,200 in power charges were discovered to have been diverted from the home's meter.
Having determined that the forfeited property was an instrumentality of the offense, the analysis turns to proportionality. As the majority correctly notes, proportionality is determined by considering “(1) whether the defendant falls into the class of persons at whom the criminal statute was principally directed; (2)...
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...United States v. 817 N.E. 29th Drive, Wilton Manors, Fla., 175 F.3d 1304, 1310 (11th Cir.1999) )); see also Agresta v. City of Maitland, 159 So.3d 876, 878 (Fla. 5th DCA 2015) (“[C]onsideration of the fines approved by the legislature indicates the monetary value society places on the harmf......