Lamar v. Universal Supply Co., Inc.
| Decision Date | 07 June 1984 |
| Docket Number | No. 83-1296,83-1296 |
| Citation | 452 So.2d 627 |
| Parties | Lawson L. LAMAR, Sheriff of Orange County, Florida, Appellant, v. UNIVERSAL SUPPLY COMPANY, INC., Appellee. |
| Court | Florida District Court of Appeals |
Peggy M. Morris, Orlando, for appellant.
Hal Roen, Orlando, for appellee.
This appeal raises the issue of the constitutionality of Florida's Contraband Forfeiture Act as amended effective July 1, 1980. The specific provision at issue herein is section 932.703(1), Florida Statutes (1983), which provides, in pertinent part:
(1) Any ... motor vehicle ... which has been or is being used in violation of any provision of s. 932.702 or in, upon, or by means of which, any violation of said section has taken or is taking place, as well as any contraband article involved in the violation, shall be seized. All rights and interests in and title to contraband articles or contraband property used in violation of s. 932.702 shall immediately vest in the state upon seizure by a law enforcement agency, subject only to perfection of title, rights, and interest in accordance with this act. Neither replevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act. (Emphasis added.)
The reference in the last sentence to an action for recovery of property "as provided in this act" is clarified by section 932.704, Florida Statutes (1983), which provides:
(1) The state attorney within whose jurisdiction the contraband article, vessel, motor vehicle, aircraft, or other personal property has been seized because of its use or attempted use in violation of any provisions of law dealing with contraband ... shall promptly proceed against the contraband article, vessel, motor vehicle, aircraft, or other personal property by rule to show cause in the circuit court within the jurisdiction in which the seizure or the offense occurred and may have such contraband article, vessel, motor vehicle, aircraft or other personal property forfeited to the use of, or to be sold by, the law enforcement agency making the seizure, upon producing due proof that the contraband article, vessel, motor vehicle, aircraft, or other personal property was being used in violation of the provisions of such law. The final order of forfeiture by the court shall perfect the state's right and interest in and title to such property and shall relate back to the date of seizure.
The facts underlying this appeal show that the Sheriff of Orange County seized a 1980 Oldsmobile on July 22, 1983, pursuant to the aforesaid Act (section 932.701-704, Florida Statutes). It was claimed that the vehicle owned by Universal Supply Company, Inc., was used in the commission of an aggravated assault by Universal's vice-president, Lloyd James Lisco. On July 25, the sheriff notified Universal, by courtesy letter, that a forfeiture investigation had been initiated.
On July 29, seven days after seizure, Universal filed a replevin action against the sheriff, seeking return of the motor vehicle. On August 3 the sheriff filed a motion to dismiss the replevin action and the order to show cause which had been served on him. After a hearing on the motion on August 26, the trial court entered an order dated August 29 denying the motion to dismiss and ordering the sheriff to either file a forfeiture proceeding against the vehicle before September 3 or otherwise to return it to Universal on that date.
The argument of the sheriff at the hearing, as set forth in his written motion to dismiss, was based on the provisions of section 932.703, quoted above. The sheriff contended:
This particular section of the latest amendment to the Florida Contraband Forfeiture Act has been specifically cited and mentioned on at least two occasions in the Florida courts. See Golding v. Director of Public Safety, etc., 400 So.2d 990 at 991, and see also 400 So.2d 992 at 997. In both of these particular cases, the Third District Court of Appeals assumed, while not actually deciding, that under our now present statute a Motion to Return Forfeitable Property (or replevin) would not lie and that the return of the property can only be accomplished by the claimant successfully terminating a forfeiture action.
The sheriff declined to file the forfeiture proceeding and now appeals the August 29 order for return of the vehicle pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(ii), relating to the appeal of non-final orders which determine the right to immediate possession of property.
As one point on appeal, the sheriff argues that the August 29 order is a nullity because the trial court did not comply with the procedural requirement of section 78.067, Florida Statutes (1983), 1 in regard to issuing an order directing the clerk of the court to issue a writ of replevin. It is contended by appellant that, given the mandatory language of the statute, the plaintiff should have obtained an order from the trial court on September 2 (when the seven days ran out) directing the clerk to issue a writ of replevin.
We agree, as does the appellee, that the procedure ordering the sheriff to return the vehicle on a certain date is not in accordance with the aforesaid statute. We do not agree, however, that the approach taken by the trial court was null and void. The statute does not contemplate a situation where the sheriff, to whom the clerk normally would issue the writ, is the party defendant. Rather than have the sheriff execute a writ of replevin against himself, the trial court utilized a viable--and valid--alternative procedure, which was well within the authority of the trial court. Any writ which the clerk of the court can issue upon direction by the trial judge can be issued directly by the judge himself. Therefore, we consider the substantive, constitutional issue raised by this appeal.
The sheriff cites us to two cases, Golding v. Director of Public Safety Dept., 400 So.2d 990 (Fla. 3d DCA 1981), and Sawyer v. Gable, 400 So.2d 992 (Fla. 3d DCA 1981), as supporting his view that the language from section 932.703(1), Florida Statutes quoted above, precludes an action in replevin and that the only recourse available to a claimant of seized property, Universal in the instant case, is to successfully defend a forfeiture action initiated by the state attorney pursuant to section 932.704. We agree with appellant that the statute makes no distinction based on the time of filing a prohibited action. Clearly, it purports to prohibit a replevin action at all times after seizure of the property, not merely after the filing of a forfeiture action. The sheriff contends that the statute, thus read, serves the salutary purpose of preventing a claimant from precipitating litigation in regard to the property prior to an adequate opportunity on the part of the state to fully investigate and prepare for forfeiture. The sheriff cites to this court's opinion in Sandidge v. State ex rel. City of Oviedo, 424 So.2d 152 (Fla. 5th DCA 1982), which held that a six-month delay between seizure and filing of a forfeiture action was not so unreasonable as to defeat the action.
It is also the position of the sheriff that since section 932.703(1), by its terms, purports to immediately vest title in the state to contraband articles, the claimant is no longer the owner of the property and, therefore, without standing to initiate an action for its return. Lastly, the sheriff argues that contraband articles cannot be justifiably replevied because, by definition, such articles cannot be "wrongfully detained," as is required by section 78.055, Florida Statutes (1983). Ethiopian Zion Coptic Church v. City of Miami Beach, 376 So.2d 925 (Fla. 3d DCA 1979).
Universal, on the other hand, points to the due process clause of the Fourteenth Amendment of the United States Constitution in support of its argument that the sheriff cannot seize its property and keep it without hearing until such time as the state attorney, at his leisure, decides to file a forfeiture action. The "prompt filing" requirement of section 932.704(1) is insufficient protection, says Universal, particularly in view of the propensity of courts to construe the term on a case-by-case basis which may permit the state as long as six months' delay. See, e.g., Sandidge and In re Alcoholic Beverages Seized From Saul's Elks Club v. Cobb, 440 So.2d 65 (Fla. 1st DCA 1983). Universal's response to the sheriff's argument in regard to the necessity of time for pretrial investigation is that a state agency must accept responsibility, if it is willing to seize property, to promptly justify that seizure.
As pointed out by Universal, Sandidge is distinguishable from the instant situation. There, we were not confronted with a claimant to property who affirmatively sought a prompt hearing, but with one who waited and raised delay only as a defensive matter to a forfeiture action initiated by the state attorney. The validity vel non of the statutory prohibition against the initiation of replevin or any other proceeding by the claimant was not raised, or considered, in Sandidge, nor, for that matter, in Cobb. The issue in Sandidge and in Cobb was whether or not the six-month delay between seizure and filing, absent any showing of prejudice by the claimant--or demand for hearing--would automatically defeat the forfeiture action because of a failure by the state attorney to "promptly proceed" as required by section 932.704. The issue here is different.
Universal properly distinguishes Ethiopian Zion on the basis that it concerned marijuana plants, which are contraband per se. The mere possession of such an item is violative of state criminal law--hence, replevin will not lie. The Oldsmobile herein at issue is not contraband per se.
We do not agree that the two Third District cases upon which the sheriff relies support his position. Golding arose prior to the 1980 amendment to the Florida Contraband Act. 2 It...
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Kern v. State, 96-3414
...(appeal of a nonfinal order which determines the right to immediate possession of property). See, e.g., Lamar v. Universal Supply Co., Inc., 452 So.2d 627 (Fla. 5th DCA 1984), reversed on other grounds, 479 So.2d 109 (Fla.1985). Other courts have treated these orders as final post-judgment ......
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DeGregorio v. Balkwill
...this statute traces to the amendment of the Forfeiture Act in 1980 and to the Fifth District's decision in Lamar v. Universal Supply Co., 452 So.2d 627 (Fla. 5th DCA 1984) (Lamar I), rev'd, 479 So.2d 109 (Fla. In Lamar I, the Court dealt with the constitutionality of the statute as amended ......
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Eight Hundred, Inc. v. State, 5D00-1902.
...right to immediate possession of property. See Kern v. State, 706 So.2d 1366, 1368 (Fla. 5th DCA 1998) (quoting Lamar v. Universal Supply Co., 452 So.2d 627 (Fla. 5th DCA 1984), reversed on other grounds, 479 So.2d 109 (Fla.1985)). Other courts, however, treat these orders as final post-jud......
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Lamar v. Universal Supply Co., Inc.
...of Appeal, Fifth District, which declared invalid a state statute, section 932.703(1), Florida Statutes (1983). Lamar v. Universal Supply Co., 452 So.2d 627 (Fla. 5th DCA 1984). We have jurisdiction under article V, section 3(b)(1), Florida Constitution. We quash the decision of the distric......