City of St. Petersburg Beach v. Jewell

• Decision Date: 23 April 1986
• Docket Number: No. 85-1873,85-1873
• Parties: 11 Fla. L. Weekly 980 The CITY OF ST. PETERSBURG BEACH, Appellant, v. William Dudley JEWELL, Appellee.
• Court: Florida District Court of Appeals

Page 78

489 So.2d 78

11 Fla. L. Weekly 980

The CITY OF ST. PETERSBURG BEACH, Appellant, v. William Dudley JEWELL, Appellee.

No. 85-1873.

District Court of Appeal of Florida,

Second District.

April 23, 1986.

Rehearing Denied May 23, 1986.

David S. Maglich of DeVito & Colen, P.A., St. Petersburg, for appellant.

Matthew B. Wheeley of Hoolihan & Hilleboe, P.A., Clearwater, for appellee.

LEHAN, Judge.

The City of St. Petersburg Beach appeals from the trial court's order denying the city's petition for forfeiture of a 1984 Chevrolet Camaro and $7,400 in currency. We affirm.

William Dudley Jewell, the owner and driver of the Camaro, was stopped in the city for traffic violations. He produced an automobile title certificate and a driver's license, each bearing the name Timothy D. Lane. The title certificate had been kept in the console of the car. The record does not show where the driver's license was located. Jewell admitted that the name on the license and title certificate was an alias and that he had obtained the license and title certificate in that name to evade arrest on several outstanding warrants.

Jewell was arrested for possession of a fraudulent driver's license and using a false name to obtain the title certificate as well as for obstructing an officer without violence in the execution of his duty. The Camaro was impounded by the police along with $7,400 in currency found in the console of the car. The city filed a petition for forfeiture of the Camaro and the currency. We conclude that the trial court's denial of the petition was correct.

Grounds for forfeiture are contained in sections 932.701-703, Florida Statutes (1983). Section 932.703 is to the effect that any motor vehicle which is contraband as defined in section 932.701(2)(e), or which has been used in violation of section 932.702, "shall be forfeited...." See One 1976 American Jeep v. State, 427 So.2d 364 (Fla. 2d DCA 1983). Accordingly, there must be forfeiture if the motor vehicle falls within either of those two statutory provisos which may be broadly summarized as follows: first, if it is "contraband" as that term is defined in section 932.701(2)(e), i.e., if it is "employed as an instrumentality in the commission of ... any felony"; or second, if, as provided in section 932.702, it is used to "transport ... conceal or ... facilitate the transportation ... of any contraband article." We will explain, first as to the Camaro and second as to the currency, why we conclude the trial court properly ruled that they were not subject to forfeiture under either of those statutory provisos.

The Camaro

a. The Camaro Was Not Contraband

The Camaro could have been forfeited as contraband under section 932.701(2)(e), Florida Statutes (1985), if it had been employed as an instrumentality in the commission of a felony. The first question then becomes whether a felony was committed through the Camaro as an instrumentality. We conclude that it has not been shown that such a felony was committed.

No such felony appears to have been committed incident to the fraudulent title certificate. The title certificate was kept in the Camaro, but mere possession of an unlawfully issued automobile title certificate is not a crime. Sections 319.33(1)(e), 319.33(4), Fla.Stat. (1985). Section 319.33(4) provides that "[i]t is unlawful for any person knowingly and with intent to defraud to have in his possession ... [an] unlawfully obtained certificate of title...." (Emphasis added.) Jewell admitted that the name on the title certificate was fictitious and therefore that the certificate was unlawfully obtained. But we do not conclude that there was evidence of possession "with intent to defraud." Although he additionally admitted that he had obtained the title in the fictitious name to evade arrest on several outstanding warrants, we know of no authority that this would constitute intent to defraud. The term "intent to defraud" in this context connotes the intent to deprive someone of money or property by cheating in a transaction, e.g., in the sale of a vehicle or while using a vehicle as security for a loan. See Smith v. Southeastern Financial Corp., 337 So.2d 330, 333 (Ala.1976) (" 'Intent to defraud' requires a scheme to unfairly deprive someone of something of value."); State v. Clayton, 110 So.2d 111, 114 (La.1959) ("There is an unanimity of opinion in all jurisdictions as to the meaning of this term in that in its ordinary and accepted signification it is the deprivation or withholding from another that which justly belongs to or is due him, to deprive of something dishonestly, and to rob.") Without undertaking to state a precise definition of the term, we do not conclude that it would be commonly understood to encompass the intent to evade arrest. Although it may be argued that the circumstances of this case could be within a broad definition of the term, whether the term encompasses those circumstances would, we believe, be debatable at best and is not unambiguously shown by the statute. We must therefore construe the statute as not encompassing those circumstances because criminal statutes should be strictly construed, Earnest v. State, 351 So.2d 957 (Fla.1977), and forfeiture statutes should be strictly construed in favor of the party against whom forfeiture is sought, Cabrera v. Department of Natural Resources, 478 So.2d 454 (Fla. 3d DCA 1985); Coleman v. Brandon, 426 So.2d 44 (Fla. 2d DCA 1982); In re 36' Uniflite, the "Pioneer I", 398 So.2d 457 (Fla. 5th DCA 1981).

We need not address whether the use of a fraudulently obtained title certificate or driver's license to evade arrest could be a violation of section 843.02, Florida Statutes (1983), which proscribes resisting an officer without violence in the lawful execution of his duty. Even if there was a showing that Jewell employed the Camaro as an instrumentality in the use of the title certificate or license in that manner, a violation of section 843.02 is a misdemeanor and therefore could not cause the Camaro to be contraband under section 932.701(2)(e). Indeed, the point that conduct of the type involved here concerning the title certificate would appear to be more closely related to section 843.02 than to section 319.33(4) may further indicate that that conduct was not meant by the legislature to be encompassed within section 319.33(4).

Also, we do not conclude that the Camaro was an instrumentality in the commission of the crime of fraudulently obtaining either an automobile title certificate under section 319.33(1)(e), or a driver's license under section 322.212(5), Florida Statutes (1985). The use of the Camaro was not shown to have been ancillary to the commission of those crimes because the Camaro was not shown to have been an assisting factor in the process of obtaining either of those documents. See Pheil v. Griffin, 469 So.2d 942 (Fla. 5th DCA 1985); City of Indian Harbour Beach v. Damron, 465 So.2d 1382 (Fla. 5th DCA 1985). See also Cabrera; City of Pompano Beach v. Enroute Ltd., Inc., 475 So.2d 1269 (Fla. 4th DCA 1985). If the legislature meant that there should be a forfeiture...