State Department of Highway and Safety and Motor Vehicles v. Metiver, 95-3785
| Decision Date | 23 October 1996 |
| Docket Number | No. 95-3785,95-3785 |
| Parties | 21 Fla. L. Weekly D2283 STATE of Florida DEPARTMENT OF HIGHWAY AND SAFETY AND MOTOR VEHICLES, Appellant, v. Lucien METIVER, Penny Metiver, Master Auto Sales, Inc., Appellees. Fourth District |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Douglas J. Glaid, Assistant Attorney General, Hollywood, for appellant.
Gary Gerrard of Gary Gerrard, P.A., Coral Gables, for appellees.
We affirm an order granting Appellee's motion to dismiss and requiring the Department of Highway Safety to return seized property as a result of the department's failure to obtain a preliminary adversarial hearing within ten days of Appellee's request.
On September 23, 1995, cash was seized from Appellee's alleged employee following a traffic stop. On October 3, 1995, Appellee's attorney requested the return of the seized currency or an adversarial preliminary hearing within ten days pursuant to section 937.703(2)(a), Florida Statutes. Rather than act immediately, the department waited until October 13th to file a verified complaint, a probable cause affidavit, and its motion for adversarial preliminary hearing. The following day, the trial court entered an order setting a hearing for October 18, 1995.
Section 932.703(2)(a), Florida Statutes, provides in pertinent part:
(2)(a) Personal property may be seized at the time of the violation or subsequent to the violation, if the person entitled to notice is notified at the time of the seizure or by certified mail, return receipt requested, that there is a right to an adversarial preliminary hearing after the seizure to determine whether probable cause exists to believe that such property has been or is being used in violation of the Florida Contraband Forfeiture Act. Seizing agencies shall make a diligent effort to notify the person entitled to notice of the seizure. Notice provided by certified mail must be mailed within 5 working days after the seizure and must state that a person entitled to notice may request an adversarial preliminary hearing within 15 days after receiving such notice. When a post-seizure, adversarial preliminary hearing as provided in this section is desired, a request must be made in writing by certified mail, return receipt requested, to the seizing agency. The seizing agency shall set and notice the hearing, which must be held within 10 days after the request is received or as soon as practicable thereafter. (emphasis added)
In Department of Law Enforcement v. Real Property, 588 So.2d 957, 965-66 (Fla.1991), the supreme court, in upholding the constitutionality of the Contraband Forfeiture Act, held:
After the ex parte seizure of personal property, the state must immediately notify all interested parties that the state has taken their property in a forfeiture action; and that they have the right to request a post-seizure adversarial preliminary hearing. If requested, the preliminary hearing shall be held as soon as is reasonably possible to make a de novo determination as to whether probable cause exists to maintain the forfeiture action; and to determine whether continued seizure of the property is the least restrictive means warranted by the circumstances to protect against disposal of the property pending final disposition. Again, as with real property forfeitures, this initial stage should be expeditiously completed, and we anticipate that the adversarial preliminary hearing, if requested, will take place within ten days of the request. (emphasis added)
The legislature responded to this opinion by inserting the provision requiring that a hearing be held within 10 days "or as soon as practicable." § 932.703(2)(a), Fla.Stat. (1995).
This court addressed the statute in Cochran v. Harris, 654 So.2d 969, 971 (Fla. 4th DCA 1995). There, we said:
In light of the above concerns and others expressed in Real Property, particularly in regard to individual rights, we conclude that the 23 day delay between August 8 (which was the 10th day after claimants requested a hearing) and August 31 (when the hearing could have occurred if claimants...
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Crepage v. City of Lauderhill, 4D99-3271.
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