People v. Glenn

• Decision Date: 02 May 1986
• Docket Number: No. 5-85-0426,5-85-0426
• Citation: 492 N.E.2d 957,142 Ill.App.3d 1108,97 Ill.Dec. 298
• Parties: , 97 Ill.Dec. 298 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Willie GLENN and One 1978 Fiat Motor Vehicle VIN131A30343980, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 957

492 N.E.2d 957

142 Ill.App.3d 1108, 97 Ill.Dec. 298

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Willie GLENN and One 1978 Fiat Motor Vehicle VIN131A30343980, Defendant-Appellee.

No. 5-85-0426.

Appellate Court of Illinois Fifth District.

May 2, 1986.

Barbara Adams, State's Atty., Hillsboro, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, and Debra A. Buchman, Staff Atty., State's Attys. Appellate Service Com'n, Mt. Vernon, for plaintiff-appellant.

James R. Burgess, Jr., Urbana, for defendant-appellee.

Justice JONES delivered the opinion of the court:

The State brought this action for the forfeiture of an automobile pursuant to section 36-1 of the Criminal Code of 1961. (Ill.Rev.Stat.1983, ch. 38, par. 36-1.) The circuit court of Montgomery County dismissed the State's forfeiture petition, finding that a twelve-month delay between the filing and the post-seizure hearing was an unreasonable delay in violation of due process of law.

The State filed a complaint for forfeiture of a 1978 Fiat automobile on May 7, 1984, alleging that it was involved in the commission of the offenses of Unlawful Possession of Cannabis and Unlawful Possession of Cannabis With Intent to Deliver in violation of sections 4(d) and 5(d) of the Illinois Cannabis Control Act. (Ill.Rev.Stat.1983, ch. 56 1/2, pars. 704(d), 705(d).) On May 24, 1984, defendant, Willie Glenn, filed an answer and a motion to dismiss the complaint, asserting that he had been misjoined as a party defendant. The defendant's motion to dismiss was denied. On April 17, 1985, the State was granted a writ of habeas corpus to testify to bring Glenn to the forfeiture hearing scheduled for May 7, 1985. Subsequently, on May 6, 1985, defendant filed a motion to dismiss asserting that the seizure and retention of said vehicle for more than twelve months violated Illinois Revised Statutes 1983, ch. 38, pars. 36-1 and 36-2, and the Fifth and Fourteenth Amendments of the United States Constitution. The motion to dismiss was granted on May 23, 1985. The State filed a motion to vacate, which was heard and denied on June 7, 1985. On appeal the State asserts that the trial court erred in dismissing its complaint for forfeiture under Illinois Revised Statutes 1983, ch. 38, pars. 36-1 and 36-2. The State also argues that defendant's motion to dismiss was filed untimely.

The State asserts that the trial court erred in dismissing the complaint for forfeiture because the twelve-month delay between the filing and the post-seizure hearing was not unreasonable. "Unlike the situation where due process requires a prior hearing, there is no obvious bright line dictating when a post-seizure hearing must occur." (United States v. Eight Thousand Eight Hundred and Fifty Dollars (1983), 461 U.S. 555, 562, 103 S.Ct. 2005, 2011, 76 L.Ed.2d 143, 151.) The question raised on appeal is one of first impression in this jurisdiction.

Defendant draws an analogy between the present forfeiture proceeding and a criminal case where a defendant has a right to a speedy trial once a prosecution has been commenced. However, we think the analogy is inappropriate because a forfeiture action is clearly a civil proceeding and should be governed by the Code of Civil Procedure. (Ill.Rev.Stat.1983, ch. 110, par. 1-101 et seq.) "[An action for forfeiture of a vehicle used in the commission of a criminal offense] is civil in form, although criminal in nature, and it has been held that the application of provisions of the Civil Practice Act is proper." (People ex rel. Stamos v. 1965 Chevrolet (1968), 99 Ill.App.2d 201, 205, 240 N.E.2d 169, 171.) "[A forfeiture proceeding] is a civil action which may be regarded as a penalty for the negligence of the owner, and is entirely separate from the criminal case." (United States v. One 1977 Pontiac Grand Prix, VIN2J5747P137057 (N.D.Ill., E.D.1979), 483 F.Supp. 48, 49.) Further, section 36-2 clearly states: "The State shall show at such hearing by a preponderance of the evidence, that such * * * vehicle * * * was used in the commission of an offense described in section 36-1." Ill.Rev.Stat.1983, ch. 38, par. 36-2.

The State's burden of proof in the present case is certainly not the standard used in a criminal proceeding. It is illogical to assume that the statute would mandate a preponderance of the evidence standard in a criminal action; clearly, the legislative intent was that a forfeiture proceeding is civil and governed by the Code of Civil Procedure. It is also improper to draw an analogy between the present case and a criminal case because the rights are so distinguishable. This is an action against property, which has no civil rights. "A forfeiture action is an in rem proceeding against the item used in the commission of a crime." (People v. One 1978 Mazda GLC Hatchback Auto. Serial No. FA4TS700177, (1983), 115 Ill.App.3d 187, 189, 70 Ill.Dec. 866, 867, 450 N.E.2d 339, 340.) Therefore, it is incorrect to assert that a criminal standard should be employed in a civil forfeiture proceeding and that a twelve-month delay was fatal to the forfeiture action.

Defendant further asserts that all statutory conditions must be satisfied in order to proceed...