Smith v. Hindery
| Decision Date | 25 July 1984 |
| Docket Number | No. AS-389,AS-389 |
| Citation | 454 So.2d 663 |
| Parties | Wayne and Vivian SMITH, Appellants, v. L.J. "Lu" HINDERY, Appellee. |
| Court | Florida District Court of Appeals |
Thomas J. Farkash, Gainesville, for appellants.
W.G. Phillips, Gainesville, for appellee.
CORRECTED OPINION
Wayne and Vivian Smith, husband and wife, appeal from an order granting forfeiture of their interest in a pickup truck pursuant to the Florida Contraband Forfeiture Act, Sections 932.701-932.704, Florida Statutes (1981). The Smiths contend that the pickup truck was held by the entireties and therefore was not subject to forfeiture by one spouse without the knowledge and consent of the other. We agree and reverse.
On 21 September 1982, Wayne Smith used the pickup truck registered in the names "Smith, Vivian L. or Wayne" to transport stolen cattle. He was subsequently arrested and charged with grand theft. On 18 March 1983, the trial court ordered forfeiture of the Smith's interest in the truck. The parties stipulated that Mrs. Smith had no knowledge of and did not consent to her husband's illegal use of the vehicle. They also stipulated that the Smith's title to the pickup truck was held by the entireties. The facts adduced at trial clearly supported this legal conclusion.
Property held by the entireties cannot be forfeited by one spouse acting alone. Tingle v. Hornsby, 111 So.2d 274 (Fla. 1st DCA 1959). The conjunction used between the names of a husband and wife is not determinative of whether a tenancy by entirety exists. This is determined by facts. Norman v. Bank of Hawthorne, 321 So.2d 112 (Fla. 1st DCA 1975).
In Roger Dean Chevrolet, Inc. v. Fischer, 217 So.2d 355 (Fla. 4th DCA 1969), the Fourth District Court of Appeal held on the facts adduced that an automobile registered in the names "James or Susann G. Fischer" was entireties property and that the wife was entitled to replevin after the husband purported to sell the car to Roger Dean Chevrolet without her consent. We agree with this holding and find it is applicable to the facts in the case before us.
The trial court concluded that "the act" was mandatory and therefore it was required to forfeit the Smith's pickup truck. Not so. Forfeiture statutes are not favored in law or in equity. Forfeiture statutes are intended to apply to those individuals who are significantly involved in criminal enterprise. Statute authorizing forfeiture is discretionary, not mandatory. In re 1969 Chevrolet Camaro, 334 So.2d 82 (Fla.1976). The trial court abused its discretion under the facts and the law of this case.
The Smiths further contend that they were denied a jury trial in violation of Article I, Section 22 of the Florida Constitution. That contention is without merit. The right to a jury trial is guaranteed by the Florida Constitution only in cases where that right existed at common law, not where a right and remedy were thereafter created by statute. Hathorne v. Panama Park Co., 44 Fla. 194, 32 So. 812 (1902). The Florida Contraband Forfeiture Act did not exist at common law, and there is therefore no right to a jury trial in a forfeiture proceeding under that Act.
Finally, it is contended that the Florida Contraband Forfeiture Act violates due process by allowing prejudgment seizure of property without notice or a hearing. We disagree. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974).
A word of caution. Section 319.22(2), Florida Statutes (1979), was amended effective 1 January 1980 to provide that the use of the disjunctive "or" in a motor vehicle certificate of title or registration shall create a joint tenancy with each named owner having the absolute right to dispose of the title and interest in the vehicle upon signature endorsement of only one of them and that this provision shall apply if the co-owners are husband and wife. This statute is not applicable to this case because it is not retroactive. Our opinion would have Affirmed in part, reversed in part, and remanded for entry of an order denying forfeiture.
reached a different result if the statute had been retroactive.
ZEHMER, J., concurs specially with opinion.
While I concur in the decision of the majority, I must explain in detail my reasons for doing so. My review of numerous recent decisions involving the Florida Forfeiture Contraband Act, sections 932.701-932.704, Florida Statutes (1981), reveals a definite shift in the direction of requiring mandatory forfeiture in all cases, with no discretion in the courts and prosecutors to excuse forfeiture in appropriate circumstances. This case presents an appealing example of the need for continuing to recognize and preserve such discretion.
The undisputed record in this case reveals that when this controversy arose Wayne and Vivian Smith had been married more than thirteen years, had two young children, and appeared to have been good citizens of their community. Neither has been convicted of any crime. On October 28, 1977, the 1978 Ford custom pickup truck here involved was purchased with financing through Vivian Smith's credit union. Vivian and Wayne each contributed $500 to the down payment, but the balance of $7,642 was financed by Vivian and fully paid by her through payroll deductions. The vehicle was titled in 1977 in the name "Smith, Vivian L., or Wayne," and was the only motor vehicle owned and used by the Smiths for transportation of themselves and their two children.
The unfortunate episode giving rise to this forfeiture proceeding occurred on September 21, 1982, when Wayne Smith allegedly used the truck for transportation of three stolen calves. After an investigation by the Alachua County Sheriff's office, Wayne Smith and others were arrested on charges involving the theft of three calves valued at $100 each. On October 7, 1982, the sheriff seized the truck under the forfeiture statute on the ground that it was used to transport the stolen calves. Wayne Smith's participation in the alleged transaction was "minimal." He fully cooperated with law enforcement officers and assisted them in the investigation and apprehension of the persons principally responsible. The victim wrote a letter to the sheriff recommending against prosecution of Smith and against forfeiture of his truck. 1
On October 27, 1982, the state attorney, exercising his prosecutorial discretion, entered into a "Deferred Prosecution" agreement with Wayne Smith and agreed to defer prosecution of charges for twelve It appearing that you are alleged to have committed offense(s) against the State of Florida referenced above and it further appearing after an investigation of said offense(s) and your background, that the best interests of justice will best be served by the following procedures: THEREFORE,
months and then dismiss the charges if the conditions recited therein had been met by Smith. That agreement recites, in pertinent part:
On the authority of EUGENE T. WHITWORTH, as State Attorney for Alachua County, Florida, prosecution in this matter will be deferred for the period of twelve (12 ) months from the date hereof, and your bond(s) if any, returned now, PROVIDED you now agree to abide and do henceforth fully abide by the following terms and conditions during said period:
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(9) SPECIAL CONDITIONS, if any: The defendant shall assist any and all agencies in the prosecution of any and all persons for this case 82-3581-CF including but not limited to appearing and testifying in all proceedings (depositions and trial).
The Defendant shall make complete restitution to the victim Rolling Hills Dairy INC. in the amount of $100.00 per heifer for a total restitution of $300.00. Said restitution May [sic] be offset by restitution from other culpable individuals subsequently. In the event offset occurrs [sic] in the future an appropriate amount will be determined by the parties and or the Court and will be paid to reimburse the Defendant Wayne Smith whom has initially accepted full financial responsibility.
The State of Florida, Assistant State Attorney Gordon Groland, recommends that the Alachua County Sherrifs [sic] Office drop any forfeiture proceedings which may be contemplated or pending against Mr. Wayne Smiths property (Truck) which may be connected with this case and return said property to Mr. Wayne Smith.
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If you comply with these conditions during the period of deferred prosecution, the charge(s) referred to above will be dismissed. (Emphasis supplied.)
Wayne Smith complied with the conditions of the agreement.
Notwithstanding the state attorney's agreement and recommendation, the sheriff filed a complaint on December 1, 1982, seeking forfeiture of the truck and alleging as the basis therefor:
Wayne Smith was arrested on a charge of grand theft, a felony in violation of Chapter 812, Florida Statutes, as a result of his participation in the larceny of cattle, and said vehicle, which had been used in hauling the stolen cattle, was seized upon Smith's arrest.
Both Vivian and Wayne Smith answered, denying the alleged grounds and asserting various defenses. The matter was tried upon the parties' stipulation of evidence, supplemented by affidavits of Vivian and Wayne Smith. The stipulation stated in part:
1. That Vivian Smith is an innocent owner as defined and contemplated under the Florida Forfeiture Statute, Florida Statute § 932.701, 932.702, 932.703, and 932.704, and as defined and contemplated in the recent Third Court of Appeal opinion In Re: 1979 Lincoln Continental Brown v. City of Miami, 405 So.2d (Fla., 3rd DCA, 1981).
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6. It is agreed that Wayne Smith knew or should have known after a reasonable inquiry that the calves transported in the Ford Pickup vehicle which is the subject vehicle of this forfeiture action were or were likely to have been stolen and thus said vehicle was...
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