Cochran v. Harris, 93-3537

Citation654 So.2d 969
Decision Date19 April 1995
Docket NumberNo. 93-3537,93-3537
Parties20 Fla. L. Weekly D964 Ron COCHRAN, Sheriff of Broward County, Appellant, v. Robert HARRIS and Marcus Harris, Appellees.
CourtCourt of Appeal of Florida (US)

Abigail F. Morrison and Heidi N. Shulman of Whitelock, Soloff & Rodriguez, Fort Lauderdale, for appellant.

David W. Collins of the Law Office of David W. Collins, Fort Lauderdale, for appellees.

KLEIN, Judge.

The trial court dismissed this forfeiture proceeding 1 because it concluded that the delay between claimant's request for a preliminary hearing on probable cause, and the occurrence of the hearing, constituted a denial of due process. We affirm.

When the Florida Supreme Court determined that the Florida Contraband Forfeiture Act, Secs. 932.701-707, Fla.Stat., was facially constitutional in Department of Law Enforcement v. Real Property, 588 So.2d 957, 965 (Fla.1991), it nevertheless found the act lacking in procedural safeguards and established, among other things, probable cause hearings:

After the ex parte seizure of personal property, the state must immediately notify all interested parties that the state has taken their property in a forfeiture action; and that they have the right to request a postseizure adversarial preliminary hearing. If requested, the preliminary hearing shall be held as soon as is reasonably possible to make a de novo determination as to whether probable cause exists to maintain the forfeiture action; and to determine whether continued seizure of the property is the least restrictive means warranted by the circumstances to protect against disposal of the property pending final disposition. Again, as with real property forfeitures, this initial stage should be expeditiously completed, and we anticipate that the adversarial preliminary hearing, if requested, will take place within ten days of the request.

(Emphasis added).

In response to Real Property, the legislature amended the Act to provide, when personal property has been seized, that if a claimant requests a preliminary hearing, it "shall be held within 10 days after the request or as soon as practicable." Section 932.703(2)(a), Fla.Stat. (1992). 2

The sequence of relevant events in this case began on July 21, 1993 when, during the execution of a search warrant, deputies from the Broward County Sheriff's office seized currency, along with drugs and weapons, in a residence occupied by the claimants. Claimants filed their request for a preliminary hearing as to the currency on July 29, and a sheriff's staff attorney contacted claimants on August 11, to inform them of the procedure to set a hearing. Claimants' counsel filed a request for a hearing on August 17. He next wrote a letter to the court on August 19, stating that he had been unsuccessful in reaching the judge's office by telephone. In the letter, counsel requested that a preliminary hearing be set on the docket for August 24, but on August 23, the sheriff's office set the hearing on the motion calendar for August 31. The preliminary hearing did not occur at that time, because although the court was willing to proceed, claimants' counsel had assumed that no testimony could be taken on the motion calendar, and did not have his witnesses present.

The sheriff's office reset the hearing for September 8, and following that hearing, the court entered an order finding probable cause. Claimants filed a motion to dismiss on September 30, arguing that their due process rights had been violated because the preliminary hearing was held more than 10 days after it had been requested. The court granted the motion, and the sheriff has appealed.

Although we have no precedent to guide us on whether the delay in this case is a violation of due process, we are keenly aware of the concerns expressed by the Florida Supreme Court in Real Property:

The Act raises numerous constitutional concerns that touch upon many substantive and procedural rights protected by the Florida Constitution. In construing the Act, we note that forfeitures are considered harsh exactions, and as a general rule they are not favored either in law or equity. Therefore, this Court has long followed a policy that it must strictly construe forfeiture statutes.

588 So.2d at 961.

In light of the above concerns and others expressed in Real Property, particularly in regard to individual rights, we conclude that the 23 day delay between August 8 (which was the 10th day after claimants requested a hearing) and August 31 (when the hearing could have occurred if claimants had been ready) does not comply with section 932.703(2)(a), because the hearing did not occur in 10 days or as soon as was practicable.

Although the sheriff's office eventually supplied some assistance to the claimants in setting the hearing, what the sheriff's office did was not enough. In spite of the 10 day statutory provision, the sheriff did nothing from the time that claimants requested a preliminary hearing, on July 29, until the staff attorney called the claimants on August 11. At that time the sheriff merely informed claimants as to the places for getting a hearing. But for claimants having retained counsel to assist them in getting the hearing, it might well have not occurred when it did.

It should not be necessary for claimants to have to retain counsel in order to get a quick preliminary hearing on probable cause. The statute does not require the claimant to do anything more than request the hearing. Because the consequence of not having a timely hearing works to a claimant's advantage, since the forfeiture proceedings will be dismissed if the delay amounts to a denial of due process, the burden must fall on the government to see that the preliminary hearing does occur as soon as possible. And, in addition to the governmental agencies having to take the initiative in setting preliminary hearings, the courts must adapt their schedules so that claimants who request preliminary hearings get them promptly. We...

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12 cases
  • Krimstock v. Kelly
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 18, 2002
    ...10 days after the request is received or as soon as practicable thereafter. Fla. Stat. § 932.703(2)(a); see also Cochran v. Harris, 654 So.2d 969, 972 (Fla.Dist. Ct.App.1995) (holding that a delay of twenty-three days beyond the ten-day limit for a hearing under § 932.703 violated the claim......
  • State v. One Thousand Nine Hundred Forty-Seven Dollars in U.S. Currency, FORTY-SEVEN
    • United States
    • Supreme Court of Nebraska
    • August 28, 1998
    ...held that failure to comply with the time limitations contained in forfeiture statutes is fatal to the State's claim, Cochran v. Harris, 654 So.2d 969 (Fla.App.1995); State v. $1970, 43 Conn.Supp. 203, 648 A.2d 917 (1994); State v.1978 LTD II, 216 Mont. 401, 701 P.2d 1365 (1985); State v. R......
  • Velez v. Miami-Dade County Police Department, No. SC04-1944 (FL 2/16/2006), SC04-1944.
    • United States
    • United States State Supreme Court of Florida
    • February 16, 2006
    ...occur within ten days or as soon as practicable thereafter and requiring the State to return the currency seized); Cochran v. Harris, 654 So. 2d 969, 971 (Fla. 4th DCA 1995) (affirming dismissal of forfeiture proceedings due to a twenty-three-day delay between the tenth day after request fo......
  • Crepage v. City of Lauderhill, 4D99-3271.
    • United States
    • Court of Appeal of Florida (US)
    • November 8, 2000
    ...where there was a five-day delay between the tenth day after the hearing was requested and the date hearing was held); Cochran v. Harris, 654 So.2d 969 (Fla. 4th DCA 1995)(affirming dismissal of forfeiture proceedings because of a 23-day The city argues that it strictly complied with the pr......
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