Department of Law Enforcement v. Real Property, Nos. 77,308

CourtUnited States State Supreme Court of Florida
Writing for the CourtBARKETT; SHAW
Citation588 So.2d 957
PartiesDEPARTMENT OF LAW ENFORCEMENT, Appellant, v. REAL PROPERTY, etc., Appellee. 588 So.2d 957, 16 Fla. L. Week. S497
Decision Date15 August 1991
Docket NumberNos. 77,308,77,309,77,311 and 77,312,77,310

Page 957

588 So.2d 957
DEPARTMENT OF LAW ENFORCEMENT, Appellant,
v.
REAL PROPERTY, etc., Appellee.
Nos. 77,308, 77,309, 77,310, 77,311 and 77,312.
588 So.2d 957, 16 Fla. L. Week. S497
Supreme Court of Florida.
Aug. 15, 1991.
Rehearing Dismissed Voluntarily Dec. 2, 1991.

Page 958

Robert A. Butterworth, Atty. Gen., Keith Vanden Dooren, Diana K. Bock and Jeanne Clougher, Asst. Attys. Gen., Tallahassee, and Parker Thomson, Special Asst. Atty. Gen., Miami, for appellant.

Robert S. Griscti of Turner & Griscti, Gainesville, for Cedar Key Mobile Home Village, Inc., Cedar Key Flying Club Sites, Inc., Cedarwood Estates, Inc., Cedar Key Hunting & Game Preserve, Inc., Cedar Key Campsites, Inc. and Charles L. DeCarlo.

Albert C. Simmons and David G. White, Cedar Key, for Walter G. Gifford and Marlene M. Gifford.

George N. Aylesworth, Senior Bureau Commander and Robert Knabe, Police Legal Advisor, Metro-Dade Police Dept., Miami, amicus curiae for Florida Sheriff's Ass'n, Florida Police Chief's Ass'n, Dade County Ass'n of Chiefs of Police, and Florida Ass'n of Police Attorneys.

Arthur I. Jacobs, Fernandina Beach, amicus curiae for Florida Pros. Attys. Ass'n, Inc.

Larry G. Turner, President, FACDL, Gainesville, and Robert A. Harper, Jr., Chairman, FACDL, Tallahassee, amicus curiae for Florida Ass'n of Criminal Defense Lawyers.

BARKETT, Justice.

We have on appeal an order of the Eighth Judicial Circuit, in and for Levy County, Florida, in which the court declared

Page 959

unconstitutional the Florida Contraband Forfeiture Act, sections 932.701-.704 of the Florida Statutes (1989) (the Act). The order was appealed to the First District Court of Appeal where a split panel, without deciding the merits, certified the issue to this Court as a matter of great public importance requiring immediate resolution. 1 Florida Dep't of Law Enforcement v. Real Property Including Any Building, Appurtenances, etc., No. 91-23 (Fla. 1st DCA Jan. 29, 1991). We hold that the Act is facially constitutional provided that it is applied consistent with the minimal due process requirements of the Florida Constitution as set forth in this opinion.

I. THE FACTS

Charles DeCarlo was arrested on drug trafficking charges on May 15, 1990, stemming from a reverse sting operation conducted by appellant Florida Department of Law Enforcement (FDLE) and the Levy County Sheriff's Department. On May 16, the state initiated forfeiture proceedings in circuit court against certain properties that were described by the court as follows:

No. 77-308 An entire 60-acre tract of land, part of which includes an extension of an airstrip.

No. 77-309 An R/V mobile home subdivision of more than 40 acres, with numerous full R/V hookups, a bath house, a restaurant, and other improvements.

No. 77-310 An entire 280-acre subdivision platted on to more than 200 separate lots.

No. 77-311 An entire 100-acre platted subdivision of approximately 1-acre parcels, including an air strip and other improvements.

No. 77-312 Personal residence and property, including garages, sheds and other improvements.

Based solely on an affidavit executed by an FDLE special agent, the circuit court on May 16 issued warrants to seize the aforementioned properties. The state that day also filed a notice of lis pendens against those properties and petitioned for a rule to show cause why the properties should not be forfeited. 2

The petition for a rule to show cause was opposed by claimants Charles DeCarlo; Cedar Key Mobile Home Village, Inc.; Cedar Key Flying Club, Inc.; Cedarwood Estates, Inc.; Cedar Key Hunting and Game Preserve, Inc.; Walter G. Gifford; and Marlene M. Gifford. The claimants moved to dismiss the petitions on constitutional grounds. The circuit court consolidated the cases and granted the claimants' motions to dismiss, 3 concluding that the Act, as amended in 1989, facially violates due process guarantees of the federal and state constitutions for the following reasons: (1) As a penal sanction, the Act fails to provide adequate substantive due process required of penal statutes; (2) if not purely penal, the Act is quasi-criminal and fails to provide the requisite procedural guidelines; and (3) the Act is void for vagueness, requiring parties to guess the proper procedures and protections, and insufficiently requires notice as to what specific property is subject to forfeiture. The FDLE appealed the dismissal, and we accepted jurisdiction to resolve a matter of first impression before this Court. 4

Page 960

The parties here do not question the validity of forfeiture statutes per se, hence we do not explore the history and nature of the subject. Rather, the issue in this case concerns whether the Florida Contraband Forfeiture Act, as amended in 1989, comports with due process of law.

II. THE DUE PROCESS REQUIREMENT

The basic due process guarantee of the Florida Constitution provides that "[n]o person shall be deprived of life, liberty or property without due process of law." Art. I, Sec. 9, Fla. Const. Substantive due process under the Florida Constitution protects the full panoply of individual rights from unwarranted encroachment by the government. To ascertain whether the encroachment can be justified, courts have considered the propriety of the state's purpose; the nature of the party being subjected to state action; the substance of that individual's right being infringed upon; the nexus between the means chosen by the state and the goal it intended to achieve; whether less restrictive alternatives were available; and whether individuals are ultimately being treated in a fundamentally unfair manner in derogation of their substantive rights. Substantive due process may implicate, among other things, the definition of an offense, see State v. Bussey, 463 So.2d 1141 (Fla.1985); Baker v. State, 377 So.2d 17 (Fla.1979); the burden and standard of proof of elements and defenses, see, e.g., State v. Cohen, 568 So.2d 49, 51 (Fla.1990); the presumption of innocence, see State v. Rodriguez, 575 So.2d 1262 (Fla.1991); State v. Harris, 356 So.2d 315, 317 (1978); vagueness, see, e.g., Perkins v. State, 576 So.2d 1310 (Fla.1991); Bussey; State v. Barquet, 262 So.2d 431, 436 (Fla.1972); the conduct of law enforcement officials, see Haliburton v. State, 514 So.2d 1088 (Fla.1987); State v. Glosson, 462 So.2d 1082 (Fla.1985); the right to a fair trial, see Kritzman v. State, 520 So.2d 568 (Fla.1988); and the availability or harshness of remedies, see In re Forfeiture of 1976 Kenworth Tractor Trailer Truck, 576 So.2d 261 (Fla.1990); Roush v. State, 413 So.2d 15 (Fla.1982). 5

Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue. Procedural due process under the Florida Constitution

guarantees to every citizen the right to have that course of legal procedure which has been established in our judicial system for the protection and enforcement of private rights. It contemplates that the defendant shall be given fair notice[ ] and afforded a real opportunity to be heard and defend[ ] in an orderly procedure, before judgment is rendered against him.

State ex rel. Gore v. Chillingworth, 126 Fla. 645, 657-58, 171 So. 649, 654 (1936) (citations omitted); accord, e.g., Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972) (procedural due process under the fourteenth amendment of the United States Constitution guarantees notice and an opportunity to be heard at a meaningful time and in a meaningful manner). The manner in which due process protections apply vary with the character of the interests and the nature of the process involved. Hadley v. Department of Admin., 411 So.2d 184, 187 (Fla.1982); accord Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). There is no single, inflexible test by which courts determine whether the requirements of procedural due process have been met. Hadley, 411 So.2d at 187.

While the doctrines of substantive and procedural due process play distinct roles in the judicial process, they frequently overlap. Hence, many cases do not expressly state the distinction between procedural and substantive due process. See, e.g., State v. Rodriguez, 575 So.2d 1262 (Fla.1991) (in criminal cases the state must provide notice of each essential element and proof beyond a reasonable doubt); accord, e.g., In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Page 961

III. CONSTRUING THE PROCESS

EXPRESSLY PROVIDED IN THE ACT

The process provided in the Act 6 enables the state to seize property--whether real or personal--"which has been or is being used" to commit one of the enumerated offenses, or "in, upon or by means of which" any enumerated violation "has taken or is taking place." Sec. 932.703(1), Fla.Stat. (1989). The Act can be read to mean that seizure immediately ousts property owners or lienholders of any right or interest they have in the subject property. Id. 7 After seizure, the state must "promptly proceed" against the property "by rule to show cause in the circuit court," and may have the property forfeited "upon producing due proof" that the property was being used in violation of the Act. Id. Sec. 932.704(1). If the state does not initiate proceedings within ninety days after the seizure, the claimant may maintain an action to recover the property. Id. Sec. 932.703(1). The state is required to give notice of forfeiture proceedings by registered mail and publication only if the seizing agency actually knows the identity of the owner, or if the property is required to be registered, or if it is subject to a perfected security interest; however the requirement for notice by mail is waived with respect to perfected security interests if the owner cannot be ascertained after diligent search and inquiry by the seizing agency. Id. Sec. 932.704(2). If the property cannot be easily ascertained or...

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170 practice notes
  • State v. Nunez, No. 23
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 30, 1999
    ...Florida's decision to place this standard of proof upon state forfeiture proceedings. See Department of Law Enforcement v. Real Property, 588 So.2d 957, 967 (Fla.1991) ("We conclude that the state has the burden of proof at trial, which should be by no less than clear and convincing evidenc......
  • Kopp v. Fair Pol. Practices Com., No. S038571
    • United States
    • United States State Supreme Court (California)
    • November 30, 1995
    ...States v. Monsanto (2d Cir.1991) 924 F.2d 1186 [reforming federal forfeiture statute]; Department of Law Enf. v. Real Property (Fla.1991) 588 So.2d 957 [reading into state forfeiture statute numerous detailed due process requirements needed to render the statute constitutional]; State ex re......
  • Jackson v. City of Chi., No. 1–11–1044.
    • United States
    • United States Appellate Court of Illinois
    • June 29, 2012
    ...show guilty intent on the part of the owner.” City of Miami, 976 So.2d at 27 (relying on Department of Law Enforcement v. Real Property, 588 So.2d 957, 968 (Fla.1991)). The Florida court of appeal held that the ordinances at issue “were void on their face because the ordinances violated the......
  • State v. Timbs, Supreme Court Case No. 27S04-1702-MI-70
    • United States
    • Indiana Supreme Court of Indiana
    • October 28, 2019
    ...comport with due process or other constitutional guarantees. Cf. Dept. of Law Enf't v. Real Prop. Owned and/or Possessed by Chilinski , 588 So.2d 957, 967–68 (Fla. 1991) (due process and jury trial); State v. Items of Real Prop. , 385 Mont. 249, 383 P.3d 236, 243–45 (2016) (jury trial); Sta......
  • Request a trial to view additional results
170 cases
  • State v. Nunez, No. 23
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 30, 1999
    ...Florida's decision to place this standard of proof upon state forfeiture proceedings. See Department of Law Enforcement v. Real Property, 588 So.2d 957, 967 (Fla.1991) ("We conclude that the state has the burden of proof at trial, which should be by no less than clear and convincing evidenc......
  • Kopp v. Fair Pol. Practices Com., No. S038571
    • United States
    • United States State Supreme Court (California)
    • November 30, 1995
    ...States v. Monsanto (2d Cir.1991) 924 F.2d 1186 [reforming federal forfeiture statute]; Department of Law Enf. v. Real Property (Fla.1991) 588 So.2d 957 [reading into state forfeiture statute numerous detailed due process requirements needed to render the statute constitutional]; State ex re......
  • Jackson v. City of Chi., No. 1–11–1044.
    • United States
    • United States Appellate Court of Illinois
    • June 29, 2012
    ...show guilty intent on the part of the owner.” City of Miami, 976 So.2d at 27 (relying on Department of Law Enforcement v. Real Property, 588 So.2d 957, 968 (Fla.1991)). The Florida court of appeal held that the ordinances at issue “were void on their face because the ordinances violated the......
  • State v. Timbs, Supreme Court Case No. 27S04-1702-MI-70
    • United States
    • Indiana Supreme Court of Indiana
    • October 28, 2019
    ...comport with due process or other constitutional guarantees. Cf. Dept. of Law Enf't v. Real Prop. Owned and/or Possessed by Chilinski , 588 So.2d 957, 967–68 (Fla. 1991) (due process and jury trial); State v. Items of Real Prop. , 385 Mont. 249, 383 P.3d 236, 243–45 (2016) (jury trial); Sta......
  • Request a trial to view additional results

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