Office of Finance of Baltimore County v. Previti

• Decision Date: 12 August 1983
• Docket Number: No. 89,89
• Citation: 463 A.2d 842,296 Md. 512
• Parties: , 38 A.L.R.4th 503 OFFICE OF FINANCE OF BALTIMORE COUNTY, Maryland v. Gerald PREVITI.
• Court: Maryland Court of Appeals

Page 512

296 Md. 512

463 A.2d 842, 38 A.L.R.4th 503

OFFICE OF FINANCE OF BALTIMORE COUNTY, Maryland v. Gerald PREVITI.

No. 89.

Court of Appeals of Maryland.

Aug. 12, 1983.

Michael J. Moran, Asst. County Atty., Towson (Leonard S. Jacobson, County Atty., Towson, on the brief), for appellant.

George A. Breschi, Towson (Robert A. Breschi, Towson, on the brief) for appellee.

Argued Before SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ., and W. ALBERT MENCHINE, Retired, Specially Assigned Judge.

RODOWSKY, Judge.

Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 264 deals with the forfeiture of cash seized in connection with an arrest for gambling. In this case we shall hold that the instances in which forfeitures pursuant to § 264 may arise are not limited to situations where the claimant of the cash is ultimately convicted of the gambling offense for which the claimant was arrested.

On April 18, 1980, officers from the vice section of the Baltimore County Police Department, acting under search warrants, conducted a raid at a cocktail lounge on Pulaski Highway. The raid culminated an undercover investigation of suspected gambling activities at the premises. Gerald Previti (Previti), the appellee, was arrested in the raid and charged with violating Art. 27, § 240 by accepting wagers on sporting events. Among the articles seized from Previti were $3,336 in currency, $5.50 in nickels, a major league baseball schedule and two "sport sheets." A stet was entered to the criminal charge against Previti on August 28, 1980. ¹ After notice had been given by Baltimore County to Previti of the requirements of § 264 "for making claim for the return of seized moneys" (§ 264(d)(4)), Previti, on June 27, 1981, wrote to an Assistant County Solicitor requesting its return. ² This letter was forwarded to the District Court of Maryland for Baltimore County where it was treated as an original pleading, and a civil case was opened on the docket. In a show cause order dated July 23, 1981 the District Court named the Baltimore County Office of Finance (the County) as defendant. ³ After hearing conflicting evidence, the District Court held that it was "going to order the forfeiture of $3,341.50." Judgment was entered in favor of the County, as defendant.

Previti appealed to the Circuit Court for Baltimore County which reversed. We then granted the County's petition for certiorari which raised this single question:

Does the absence of a conviction of a defendant charged with violations of the gambling laws preclude the Court from ordering money seized from the Defendant forfeit to the County, after the Court conducts a hearing and finds that the money is contraband pursuant to [§ 264(d) ]?

There was no conditional cross-petition.

The circuit court's decision was made on June 30, 1982. It relied almost entirely on certain language appearing in an opinion of the Court of Special Appeals which had been filed on June 3, 1982 in Bozman v. Office of Finance of Baltimore County, 52 Md.App. 1, 445 A.2d 1073 (1982), aff'd, --- Md. ---, 463 A.2d 832 (1983). That case arose under Art. 27, § 297, dealing with forfeitures in controlled dangerous substances cases. Bozman had argued that some kind of final disposition of related criminal charges was a condition precedent to a forfeiture proceeding instituted under § 297 by the seizing authority. We affirmed the intermediate appellate court's rejection of that contention. However, in its Bozman opinion, the Court of Special Appeals commented on § 264, the gambling forfeiture statute, in the following manner (52 Md.App. at 9, 445 A.2d at 1077):

[Section 264] allows forfeiture of monies seized as a result of a gambling arrest. The statute mandates that forfeiture shall be commenced within 90 days of "conviction." The appellant adroitly likens section 264 to section 297, and, while not specifically suggesting that we read the statutes to be in pari materia, very gently prods us in that direction.

We think that the Legislature meant to draw, and did draw a sharp distinction between forfeitures in gambling cases and forfeitures in controlled dangerous substances matters. The requirement of a "conviction" in a gambling case is a recognization by the General Assembly that, while gambling is unlawful, it is not such a heinous offense as to dictate forfeiture absent conviction.

On Previti's appeal, the circuit court concluded that "in view of the holding in the Bozman case, supra, this Court must find that the District Court erred in ordering the forfeiture of the $3,341.50." We do not agree. Forfeitures under § 264 are not exclusively limited to situations in which a criminal conviction against the claimant has been obtained on the gambling charges. The plain language of § 264 produces the forfeiture result in this case.

Under § 264(a), ⁴ the money seized from Previti is "deemed prima facie to be contraband of law.... All rights title, and interest in and to" the money "immediately vest[ed] in and to" the County. Subsection (a) further provides that "no such money ... shall be returned to any person claiming the same ... except as provided in this section."

The statute then addresses factual variations which can occur following the initial seizure. "If the trial or other ultimate disposition" of the charges results in "a record of conviction," the financial officer of the seizing governmental body "shall within 90 days from the date of the record of the entry of such conviction" apply to a court for an order declaring the money forfeited. § 264(c). ⁵ Subsection (d) treats situations where the criminal charge results in "acquittal, dismissal, a stet, a nolle prosequi, or probation [before judgment]." ⁶ Within one year from that type of disposition a person who claims that the seized money is not contraband may apply to a court for a determination that the money "is the property of the claimant and for an order that it be returned." § 264(d)(1). That is what Previti did in this case. If the petition filed by the claimant "is finally decided against the claimant, the seized moneys ... shall be forfeited to the custodian without further judicial action." § 264(d)(3). That is what the District Court did in this case. It was authorized by the statute. Subsection (c), dealing with proceedings for forfeiture initiated by the seizing government after a conviction, does not limit the operation of subsection (d). The circuit court erred in requiring that there first be a criminal conviction for a forfeiture to result in this case.

Previti also argues that the 90 day time limit under § 264(c) for institution of a forfeiture action applies to this case, so that the County has lost any right to retain the seized money. This argument is simply a corollary of the position which we have rejected above. It incorrectly assumes that a criminal conviction is always a condition precedent to any forfeiture under § 264.

Taking a different tack, Previti contends that, because a stet is not a disposition of guilty, a stet should be equated with a disposition of not guilty, especially where, as here, the County has failed to seek forfeiture. Under § 264(d)(2), an acquittal is prima facie evidence that the seized money is not contraband in a hearing on a claimant's application for return of the money. It follows, says Previti, that the County failed to meet the "severe" burden of proof needed to overcome the presumption. But there was no presumption one way or the other in this case. Section 264(d)(2) states that "[n]o presumption in the proceeding shall attach to an entry of stet."

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY REVERSED.

CASE REMANDED TO THAT COURT FOR THE ENTRY OF A JUDGMENT AFFIRMING THE JUDGMENT OF THE DISTRICT COURT OF MARYLAND FOR BALTIMORE COUNTY.

COSTS TO BE PAID BY GERALD PREVITI.

ELDRIDGE, Judge, dissenting:

Because I conclude that the district court should not have decided the merits of this controversy, I dissent from the majority's decision. I would either dismiss the writ of certiorari as improvidently granted or vacate the judgments of the courts below and remand the case with directions that it be dismissed. Alternatively, I would affirm the circuit court's reversal of the District Court forfeiture order because the District Court order was premised on a patently incorrect application of the exclusionary rule.

On April 18, 1980, Baltimore County police officers executed a search warrant at a cocktail lounge on Pulaski Highway. Gerald Previti was arrested and charged with violating Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 240, by accepting wagers on sporting events. Pursuant to the search warrant, the police seized money in the amount of $3,341.50 from Previti's person. On August 23, 1980, the charge against Previti was stetted.

On June 27, 1981, Previti wrote a letter to the Assistant County Solicitor for Baltimore County, stating that the seized money was not contraband and should be returned to him. The County Attorney sent this letter along with a cover letter that read, "Please set the attached matter in for a hearing on the return of seized money per your usual procedure," to the District Court of Maryland, sitting in Baltimore County. Previti's letter was treated as an original pleading, and the case was docketed. A show cause order was issued on July 23, 1981, naming Previti as plaintiff and the County as defendant.

Trial was held on October 30, 1981. During the trial, the trial judge ruled that the search warrant leading to Previti's arrest was invalid. Nevertheless, the judge concluded that he did not have to exclude evidence seized incident to the execution of the search warrant because the "exclusionary rule is a rule which is just set for criminal law." Based on the evidence seized pursuant to the search warrant, the trial judge held that the seized money was directly associated with gambling and was contraband. He ordered the money forfeited...