Lang v. State
| Decision Date | 01 November 1983 |
| Docket Number | No. 66772,66772 |
| Citation | 168 Ga.App. 693,310 S.E.2d 276 |
| Court | Georgia Court of Appeals |
| Parties | LANG v. The STATE. |
Billy L. Spruell, Atlanta, for appellant.
Darrell E. Wilson, Dist. Atty., C. Stephen Cox, Asst. Dist. Atty., for appellee.
In January 1982 law enforcement officers in Gordon County, acting pursuant to valid search warrants, searched premises belonging to appellant and seized a large quantity of marijuana, together with a sum of cash and a number of miscellaneous items, many of which were suitable for use in the distribution of marijuana. Appellant was arrested, tried, and convicted of trafficking in marijuana and possession of drug-related objects. On the first count he was sentenced to ten years' imprisonment and a $25,000 fine, and on the second count to one year's probation, to commence upon payment of the fine imposed under Count I. On appeal this court affirmed the conviction. Lang v. State, 165 Ga.App. 576, 302 S.E.2d 683 (1983); cert. denied (case no. 39787, decided July 5, 1983).
Within ten days of the seizure of the marijuana and other items, the district attorney was notified of the seizure, and within 30 days the latter filed a petition to condemn the property seized. OCGA § 16-13-49 (Code Ann. § 79A-828). Upon trial a jury found for the state. Lang now appeals from this judgment, enumerating the following errors: (1) the trial court in the prior case erred in denying appellant's motion to suppress; (2) the trial court in this case erred in entering judgment against appellant because it had no in personam jurisdiction in that appellant allegedly did not receive personal service; (3), (4) the court erred in holding for the state because OCGA § 16-13-49 (Code Ann. 79A-828) is unconstitutional on its face and in its application, in that it denies due process and contains subject matter different from that expressed in its title; and (5) the court below erred in failing to dismiss the state's condemnation petition because the facts alleged therein were not in compliance with the requirements of the Code section. Held:
We have scrutinized not only the record of the instant case but also that of the prior criminal proceeding. Lang v. State, supra. We find merit in none of appellant's enumerations and affirm the judgment below for the following reasons.
1. This court has no jurisdiction to review the denial of a motion made in a different proceeding from that underlying the instant appeal. Moreover, even if such review were procedurally permissible, appellant would be collaterally estopped from what is, in effect, an attempt to obtain a second appellate review of an issue previously litigated between the same parties, and previously reviewed by this court. The proper methods of making a post-judgment attack on a judgment are set forth in OCGA § 9-11-60 (Code Ann. § 81A-160). None of these is appropriate here, as a matter of law. This court cannot consider such an enumeration.
2. The record discloses that appellant was personally served by a duly authorized deputy sheriff. The fact that this person also worked as an investigator for the district attorney's office would not alter his status as a duly sworn deputy. The cases cited by appellant are inapposite because they involve civil actions in which the defendant is served by an opposing party (or his agent), whose lack of bias would be questionable. In most of those cases, moreover, it is unclear whether the defendant received actual notice. The record shows that receipt of actual notice is not really subject to dispute in the instant case, and the sheriff attested to the status of the deputy who had served appellant. See also OCGA § 9-11-4(j) (Code Ann. § 81A-104).
Moreover, a condemnation forfeiture is an in rem proceeding rather than an in personam action, and it is jurisdiction over the property rather than its owner that is essential. OCGA § 16-13-49(b)(Code Ann. § 79A-828). The statute requires only that a copy of the action "be served on the owner ..., if known." OCGA § 16-13-49(e) (Code Ann. s79A 828). In the instant case jurisdiction of the property indisputably existed. This enumeration is also without merit.
3. The constitutionality of the challenged Code section, OCGA § 16-13-49, and of its predecessor, Ga.Code Ann. 79A-828, has been upheld by Georgia's Supreme Court. See Palmer v. State, 250 Ga. 219, 297 S.E.2d 22 (1982); Tant v. State, 247 Ga. 264, 275 S.E.2d 312 (1981); Sacchinelli v State, 161 Ga.App. 763, 288 S.E.2d 894, cert. denied 459 U.S. 1015, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982), reh. denied 459 U.S. 1137, 103 S.Ct. 772, 74 L.Ed.2d 984 (1983). As to appellant's contention that the provisions of § 16-13-49 violate Article III, Section VII, Paragraph 4 of the state Constitution, which forbids treatment of "more than one subject matter" in a single statute, the Supreme Court settled this long ago. In Crews v. Cook, 220 Ga. 479, 481, 139 S.E.2d 490 (1964), Justice Candler pointed out that "the word 'subject matter' ... is not synonymous with the word 'provision,' " and went on to hold that the constitutional proscription requires only that the parts of a given statute be so related as to be "parts of, or germane to, one subject." OCGAs 16-13-49 (Code Ann. § 79A-828) passes this test.
4. Appellant correctly states that a libel condemnation proceeding is a spscial statutory proceeding governed by OCGA § 16-13-49 (Code Ann. § 79A-828), and that the statute must be strictly construed. Examination of the record discloses, however, that the petition alleged sufficient facts to fulfill the requirements of subsection (e) of the statute, and that the proceeding was otherwise in compliance both with the statute and with the underlying legislative intent; namely, the prompt disposition of criminal property. See State v. Britt Caribe, Ltd., 154 Ga.App. 476,...
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...Ga.App. 176, 182(2), 477 S.E.2d 583 (1996); State of Ga. v. Battise, 177 Ga.App. 583, 584, 340 S.E.2d 240 (1986); Lang v. State, 168 Ga.App. 693, 696(4), 310 S.E.2d 276 (1983); Hardison v. Fayssoux, 168 Ga.App. 398, 400, 309 S.E.2d 397 (1983); Collins v. Nix, 125 Ga.App. 520, 524(1), 188 S.......
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