State v. One Thousand Nine Hundred Forty-Seven Dollars in U.S. Currency, FORTY-SEVEN
| Decision Date | 28 August 1998 |
| Docket Number | No. S-96-1237,FORTY-SEVEN,S-96-1237 |
| Citation | 255 Neb. 290,583 N.W.2d 611 |
| Parties | STATE of Nebraska, Appellee, v. ONE THOUSAND NINE HUNDREDDOLLARS IN U.S. CURRENCY, Appellee, and Thomas Badgett, Interested Party, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Appeal and Error. Regarding questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the trial court.
2. Statutes. To the extent there is a conflict between two statutes on the same subject, the specific statute controls over the general statute.
3. Service of Process. The voluntary appearance of a party is equivalent to service.
4. Statutes: Intent: Words and Phrases. As a general rule, in the construction of statutes, the word "shall" is considered mandatory and inconsistent with the idea of discretion. However, when the spirit and purpose of the legislation require that the word "shall" be construed as permissive rather than mandatory, it will be done.
5. Penalties and Forfeitures: Time. The time limitations of Neb.Rev.Stat. § 28-431(4) (Reissue 1995) are directory rather than mandatory, and the State's failure to strictly conform to them is not fatal to a forfeiture action.
6. Due Process. Due process is a flexible notion and therefore must be decided on the facts presented in a particular case.
7. Judgments: Appeal and Error. In a bench trial of a law action, the trial court's factual findings have the effect of a jury verdict and will not be set aside on appeal unless they are clearly wrong.
Mary Lee Skaff, Omaha, for appellant.
Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee State.
On September 15, 1994, $1,947 in cash was seized from Thomas Badgett's apartment during the execution of a search warrant. The State of Nebraska filed a petition for disposition of seized property pursuant to Neb.Rev.Stat. § 28-431 (Reissue 1995), alleging that the money was used or intended to be used to facilitate controlled substances transactions and, therefore, should be forfeited to the State. More than 2 years after the seizure, the district court for Douglas County held a forfeiture hearing and ordered the property forfeited. Upon Badgett's appeal, we reverse the judgment of the district court and remand the cause with directions to return the seized property and to dismiss.
In October 1993, the Nebraska State Patrol investigated marijuana sales allegedly involving Badgett. On September 15, 1994, law enforcement officers executed an arrest warrant for Badgett at his home. During the execution of the warrant, an officer noticed the presence of marijuana and drug paraphernalia in Badgett's apartment and, as a result, obtained a search warrant for the premises. While conducting the ensuing search, officers seized various items, including cash in the amount of $1,947.
On September 22, 1994, the State filed a petition for disposition of seized property pursuant to § 28-431, alleging that the cash was used or intended to be used to facilitate controlled substances transactions and, therefore, should be forfeited. On the same day, the State filed a praecipe for summons, requesting service upon Badgett at his place of residence. On October 21, the State moved for substitute service because attempts to serve Badgett by certified mail at his residence were unsuccessful and his whereabouts were unknown. That day, the district court issued an order allowing the State to serve Badgett by publication. Proof of publication was filed on November 15 following the publication of notice on October 25, November 1, November 8, and November 15.
On November 23, 1994, Badgett filed an answer to the State's petition for disposition, requesting a forfeiture hearing. On December 1, he filed a certificate of readiness for trial. Badgett filed a notice of pretrial conference and a notice of answers to interrogatories and request for production on January 3 and March 7, 1995, respectively.
After 16 months had passed with no action being taken on the forfeiture, Badgett filed a motion to dismiss on July 9, 1996, on the grounds that the statutory time limits for a forfeiture hearing had been exceeded. On July 18, a hearing was held on the motion to dismiss. Subsequently, the district court entered an order denying Badgett's motion to dismiss. The court noted that the provisions of § 28-431 authorizing service by publication apply only to unknown claimants and that Badgett was a known claimant. Nevertheless, the court held that the general civil procedure rules for service by publication applied in any context, including forfeitures, thereby validating the service in Badgett's case. The court then held that Badgett's answer was filed outside the 30-day time limit permitted for asserting an interest in seized property granted by the third paragraph of § 28-431(4). However, reasoning that a claimant of seized property has a due process right to a hearing to contest a forfeiture, the court concluded that Badgett could intervene in the proceeding by virtue of the second paragraph of § 28-431(4), which permits an "owner of record" to request a release of the property any time after seizure and before court disposition. The court then overruled Badgett's motion to dismiss because it was based upon the time limits contained in the third paragraph of § 28-431(4), which the court held to be inapplicable.
On November 4, 1996, a forfeiture hearing was held before the district court. In an order dated November 6, 1996, the court held that the State had proved beyond a reasonable doubt that the $1,947 was used or intended to be used to facilitate illegal drug transactions and ordered the property forfeited. Badgett appealed this decision, and pursuant to our authority to regulate the dockets of this court and the Nebraska Court of Appeals, we removed the case to our docket.
Badgett contends that the district court erred in (1) denying Badgett a jury trial, (2) holding the forfeiture hearing 2 years after the money was seized, (3) not dismissing the case pursuant to Badgett's diversion agreement, and (4) ordering the property forfeited on insufficient evidence.
Regarding questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the trial court. State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998); State v. Howard, 253 Neb. 523, 571 N.W.2d 308 (1997); State v. Williams, 253 Neb. 111, 568 N.W.2d 246 (1997).
We begin our analysis with Badgett's second assignment of error, because it is dispositive of the case. Badgett asserts that the district court erred in refusing to dismiss the forfeiture action for failure to comply with the time limitations of § 28-431. Section 28-431(4) outlines the procedures for instituting and maintaining a forfeiture action:
When any property described in subdivision (1)(f) [] or (g) [money used to facilitate a drug transaction] of this section is seized, the person seizing the same shall cause to be filed, within ten days thereafter, in the district court ... petition for disposition of such property.... The county attorney shall have a copy of the petition served upon the owner of or any person having an interest in the property, if known, in person or by registered or certified mail at his or her last-known address. If the owner is unknown or there is a reasonable probability that there are unknown persons with interests in the property, the county attorney shall provide notice of the seizure and petition for disposition by publication once a week for four consecutive weeks in a newspaper of general circulation in the county of the seizure. At least five days shall elapse between each publication of notice.
At any time after seizure and prior to court disposition, the owner of record of such property may petition the district court of the county in which seizure was made to release such property, and the court shall order the release of the property upon a showing by the owner that he or she had no knowledge that such property was being used in violation of this article.
Any person having an interest in the property proceeded against or any person against whom civil or criminal liability would exist if such property is in violation of this article may, within thirty days after seizure, appear and file an answer or demurrer to the petition.... At least thirty but not more than ninety days after seizure, there shall be a hearing before the court. If the claimant proves by a preponderance of the evidence that he or she (a) has not used or intended to use the property to facilitate an offense in violation of this article, (b) has an interest in such property as owner or lienor or otherwise, acquired by him or her in good faith, and (c) at no time had any knowledge that such property was being or would be used in, or to facilitate, the violation of this article, the court shall order that such property or the value of the claimant's interest in such property be returned to the claimant. If there are no claims, if all claims are denied, or if the value of the property exceeds all claims granted and it is shown beyond a reasonable doubt that such property was used in violation of this article, the court shall order disposition of such property at such time as the property is no longer required as evidence in any criminal proceeding.
In its order on Badgett's motion to dismiss, the district court initially confronted the issue of the adequacy of service. The court noted that the publication provision of § 28-431 applies only to unknown owners and that in the present case, Badgett was a known...
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