Forfeiture of 1979 Mazda Auto., VIN # FA4UV521728, In re, AW-438

• Decision Date: 13 July 1984
• Docket Number: No. AW-438,AW-438
• Parties: Page 144 453 So.2d 144 In re FORFEITURE OF one 1979 MAZDA AUTOMOBILE, VIN # FA4UV521728. STATE of Florida, Appellant, v. Ludwig Oddo BAGLIONI, Appellee. District Court of Appeal of Florida, First District
• Court: Florida District Court of Appeals

Page 144

453 So.2d 144

In re FORFEITURE OF one 1979 MAZDA AUTOMOBILE, VIN # FA4UV521728.

STATE of Florida, Appellant, v. Ludwig Oddo BAGLIONI, Appellee.

No. AW-438.

District Court of Appeal of Florida,

First District.

July 13, 1984.

Jim Smith, Atty. Gen., and William P. White, Jr., Asst. State Atty., for appellant.

William B. Richbourg, Pensacola, for appellee.

NIMMONS, Judge.

The trial court initially entered judgment for the state forfeiting a motor vehicle pursuant to Sections 932.701-932.704, Florida Statutes (1983), the "Florida Contraband Forfeiture Act." However, the trial court granted rehearing, vacated the previous judgment and ordered the vehicle restored to the owner, Ludwig Oddo Baglioni. The state appeals from that order. We reverse.

Apparently, there were evidentiary hearings before the trial court prior to the entry of the judgment of forfeiture and upon rehearing. However, we have not been furnished with a transcript of such hearings. Counsel for the state makes the statement in his brief that "the factual issues [have] been resolved by stipulation of the parties." Apparently, the stipulation referred to by the state consists of certain statements contained in a "memorandum letter" written to the trial court by Baglioni's attorney in support of his motion for rehearing. Counsel for the state quotes the following portion of opposing counsel's letter in the statement of facts of his brief:

The facts necessary for the determination of this motion are very simple. The State, at the forfeiture hearing, proved that the owner of the vehicle in question, Ludwig Baglioni, transported a passenger to and from a local shopping center. That the passenger made contact with undercover officers and proceeded to sell them some substance, apparently marijuana, for $20.00. The substance was contained in a brown paper bag which the passenger obtained from somewhere inside the vehicle in question.

We will assume those to be the facts inasmuch as Baglioni's answer brief has no statement of facts section and does not otherwise take issue with such facts.

On rehearing in the trial court, Baglioni asserted, as he does on appeal, that the following portion of Section 932.703(1) is controlling:

(1) * * * In any incident in which possession of any contraband article defined in s. 932.701(2)(a)-(d) constitutes a felony, the vessel, motor vehicle, aircraft, or personal property in or on which such contraband article is located at the time of seizure shall be contraband subject to forfeiture.

And, since the parties also stipulated in the lower court that only 8.9 grams of marijuana was involved, Baglioni reasons that the above-quoted statutory provision is not satisfied.

But the fact that the above-quoted provision allows forfeiture of a vehicle in which a "felony amount" of marijuana is found does not preclude the operation of other provisions of the Act which do contemplate forfeiture of a vehicle used in a statutorily proscribed manner notwithstanding the fact that the possession of the contraband (in this case, marijuana) is not a felony. Under Section 932.702(3), it is unlawful to use a motor vehicle to facilitate the sale of any contraband article including any controlled substance regardless of the quantity and Section 932.703(1) specifically provides for the seizure of any motor vehicle "which has been or is being used in violation of any provision of s. 932.702." See One 1976 Dodge Van v. State, 447 So.2d 984 (Fla. 1st DCA 1984). Further, Section 932.701(2) defines "contraband article" and includes the following:

(e) Any personal property, including, but not limited to, any item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, or currency, which has been or is actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony.

The fact that only 8.9 grams of marijuana was involved in the instant case would not render subsection (e) inapplicable because the sale of any quantity of marijuana is a felony, and, apparently, evidence of sale of the marijuana was presented at one of the evidentiary hearings. From the skeletal facts which have been furnished us by the parties, it appears that the trier of the fact might well have found evidentiary support for forfeiture under the above additional provisions of the Act.

Insofar as the availability to the state of Section 932.701(2)(e) (quoted above) as a ground justifying forfeiture, Baglioni argues that since the operative provisions of 932.703(1) refer only to 932.701(2)(a)-(d), the provisions of (e) may not be relied upon as a basis for forfeiture. The Fourth District Court of Appeal has rejected a similar argument in In Re Forfeiture of One 1973 Mercedes, 423 So.2d 535 (Fla. 4th DCA 1982). That court pointed out that the 1980 Legislature, in overhauling much of the Act, added section 943.41(2)(e) ¹ which thereby "expressly provides an additional basis on which to seize a motor vehicle." The court went on to state:

Appellees accurately point out, however, that the legislature neglected to include any reference in section...