Forfeiture of 1986 Pontiac Firebird, Vehicle Identification No. 1G2FS87H3GN236562, Florida Tag No. HWK 81Y, In re

• Citation: 600 So.2d 1178
• Decision Date: 20 May 1992
• Docket Number: No. 91-01368,91-01368
• Parties: In re FORFEITURE OF 1986 PONTIAC FIREBIRD, VEHICLE IDENTIFICATION NUMBER 1G2FS87H3GN236562, FLORIDA TAG NO. HWK 81Y. CITY OF CAPE CORAL, Florida, Appellant, v. Terry A. BURGESS, Appellee. 600 So.2d 1178, 17 Fla. L. Week. D1294
• Court: Court of Appeal of Florida (US)

Page 1178

600 So.2d 1178

In re FORFEITURE OF 1986 PONTIAC FIREBIRD, VEHICLE IDENTIFICATION NUMBER 1G2FS87H3GN236562, FLORIDA TAG NO. HWK 81Y CITY OF CAPE CORAL, Florida, Appellant, v. Terry A. BURGESS, Appellee.

No. 91-01368.

600 So.2d 1178, 17 Fla. L. Week. D1294

District Court of Appeal of Florida Second District.

May 20, 1992.

Bruce R. Conroy, City Atty., Marilyn W. Miller and Dolores D. Menendez, Asst. City Attys., Cape Coral, for appellant.

Peter D. Ringsmuth, Fort Myers, for appellee.

PER CURIAM.

The City of Cape Coral appeals a circuit court order denying its petition for forfeiture of a 1986 Pontiac Firebird. We reverse.

The Pontiac currently is the property of appellee Terry Burgess. On July 13, 1990, a Cape Coral police officer observed Burgess sitting in the parked Pontiac holding a plastic bag of cocaine. Burgess entered a no contest plea to felony possession charges and was placed on probation. During the course of the criminal prosecution the city instituted forfeiture proceedings against the automobile.

The order being appealed declares that Burgess "was punished for the possession of ... cocaine" and that "tak[ing] his vehicle would be additional punishment" in violation of constitutional double jeopardy provisions. The circuit court further found that the city "did not present any testimony regarding the costs of the investigation" as proof "that the forfeiture was necessary to make the government whole."

Although it is not cited in the order, it appears the circuit court relied primarily upon United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). Halper was convicted of filing false claims for Medicare reimbursement. In addition to double damages the relevant statute assesses a $2,000 civil penalty for each separate false claim regardless of the amount of that claim. Because Halper had filed 65 claims, he was ordered to pay $130,000 even though the total amount of the overbilling was only $585. The Supreme Court found this penalty "so extreme and so divorced from the government's damages and expenses as to constitute punishment." 490 U.S. at 442, 109 S.Ct. at 1895, 104 L.Ed.2d at 497. The holding in Halper has been succinctly described as "a rule for the rare case ... where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused." United States v. Furlett, 781 F.Supp. 536, 539 (N.D.Ill.1991).

Halper is not a civil forfeiture case, a fact we deem dispositive of this appeal. As noted in United States v. A Parcel of Land With a Building Located Thereon at 40 Moon Hill Road, Northbridge, Massachusetts, 884 F.2d 41, 43 (1st Cir.1989), "prior to Halper, the Supreme Court had specifically held that the doctrine of Double Jeopardy does not apply to a civil forfeiture proceeding." See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984).

In attempting to extend Halper to the facts of the present case, Burgess appears to attach great significance to occasional descriptions of forfeiture as a "penalty." See, e.g., State v. Crenshaw, 548 So.2d 223, 226 (Fla.1989). ¹ However, we have previously found, and the greater weight of authority holds, that statutory forfeiture provisions are intended to serve a remedial rather than punitive purpose. DeLisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982), rev. denied, 434 So.2d 887 (Fla.1983) (forfeiture under RICO Act). A forfeiture proceeding constitutes "a civil, in rem action that is independent of any factually related criminal actions." United States v. One 1974 Porsche 911-S Vehicle, 682 F.2d 283, 285 (1st Cir.1982). Accordingly, it does not "trigger the panoply of constitutional safeguards present in criminal actions." U.S. v. A Parcel of Land, 884 F.2d at 83.

For these reasons, we hold that the circuit court erred in applying a double jeopardy analysis and in requiring the city to present proof of actual loss incurred in investigating Burgess's criminal misconduct. We reverse the order denying the city's petition for forfeiture of the Burgess vehicle and remand this case for a determination of that petition on the merits.

Reversed.

SCHOONOVER, C.J., and CAMPBELL, J., concur.

ALVAREZ, F. DENNIS, Associate Judge, concurring in part and dissenting in part with opinion.

ALVAREZ, F. DENNIS, Associate Judge, concurring in part and dissenting in part.

I agree with the majority's conclusion that the circuit court erred in dismissing the forfeiture petition on double jeopardy grounds. However, I would not foreclose the possibility that the value of forfeited property can be so disproportionate to the seriousness of an offense as to constitute additional "punishment." I would permit Burgess, after remand, to present evidence on the question of disproportionality.

The most thorough discussion of this issue that I have found occurs in United States v. Certain Real Property and Premises Known as 38 Whalers Cove Drive, Babylon, N.Y., 954 F.2d 29 (2d Cir.1992), which involved the forfeiture of an entire condominium in response to two minor cocaine sales. ² I believe it is appropriate to apply the Babylon analysis to forfeitures under Florida law.

Under Babylon the threshold question is whether substantial use was made of the forfeited property in order to commit the crime, "so that the property itself can be said to be 'culpable' or an instrumentality of the crime." 954 F.2d at 36. If so, there is no presumption of punitive motive on the part of the government. ³ If, however, the property is not an "instrumentality" the focus shifts, in a drug case, to the value of the forfeited property as contrasted with that of the drugs involved; the latter amount is described as "a rough measuring stick." Id. Whenever the value of the property is overwhelmingly disproportionate, there then arises a rebuttable presumption that the forfeiture is punitive in nature. ⁴

In the event such a showing is made, the burden then shifts to the government "to show that the forfeiture serves legitimate civil goals. The government may present its costs of investigation and detection, as well as other costs and damages attributable to the criminal misconduct of the [defendant]." 954 F.2d at 37. These costs are not limited to the expense of prosecuting the individual defendant, but may include a "reasonable allocation of more generalized enforcement costs." Id. However, the government may not "plac[e] full responsibility for the 'war on drugs' on the shoulders of every individual [defendant]," particularly where "the individual [defendant's] violations are relatively minor." Id. Following the government's accounting, the trial court must then determine whether "the sanction is entirely assignable to civil purposes or whether part or all of the sanction is designed to serve punitive purposes." Id. If the government has not satisfied its burden of proof, a double jeopardy problem may exist. ⁵

In the present case the circuit court's order...