State v. Sobieck, 96-875

• Decision Date: 26 September 1997
• Docket Number: No. 96-875,96-875
• Parties: 22 Fla. L. Weekly D2257 STATE of Florida, Appellant/Cross-Appellee, v. Jeffrey SOBIECK, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 96

701 So.2d 96

22 Fla. L. Weekly D2257

STATE of Florida, Appellant/Cross-Appellee, v. Jeffrey SOBIECK, Appellee/Cross-Appellant.

No. 96-875.

District Court of Appeal of Florida Fifth District.

Sept. 26, 1997.

Rehearing Denied Nov. 7, 1997.

Robert A. Butterworth, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.

Donald A. Lykkebak and Michael P. Murphy, of Law Office of Donald A. Lykkebak, Orlando, for Appellee/Cross-Appellant.

W. SHARP, Judge.

The state appeals from the trial judge's orders which dismissed nine counts of an amended criminal information filed against Sobieck on double jeopardy grounds. ¹ He had been charged with one violation of the RICO statute, ² based on six predicate incidents involving resale of tickets in violation of section 817.36(2)(a), and one for making a false statement in violation of section 817.36(2).

Counts II, III, V, VI and VII involved resale of tickets in violation of section 817.36(2)(a), essentially repeating the RICO predicate incidents. Count VIII involved the conduct of an illegal financial transaction in violation of section 896.101(2)(a). Counts XI and XII involved the charge that Sobieck violated section 559.927(10), while registered as a seller of travel, selling tickets in violation of the statute, either not as part of a prearranged travel package which included transportation or accommodation, or did not resell the tickets on behalf of the original seller.

The trial court held that an earlier proceeding in a civil suit constituted a prior penalty and thus barred prosecution of the criminal counts because they were premised on the same conduct involved in the civil case. After Sobieck was arrested and charged in a multi-count information, he filed a complaint in the civil court seeking a temporary and permanent injunction to prevent confiscation of personal property belonging to him and his business, Alabama Prime Time Tickets, Inc. Alabama Prime Time Tickets is in the business of reselling sporting and other entertainment tickets to the public. The properties seized included a motor vehicle, office equipment, furniture, unsold tickets, cash and bank accounts.

The state responded in the civil suit by filing a complaint for forfeiture of the property. It sought to impose a civil penalty, and other relief designed to halt the business conducted by Alabama Prime Time Tickets. Sobieck requested an adversarial preliminary hearing pursuant to the Contraband Forfeiture Act. ³ A default judgment against Sobieck and Alabama Prime Time Tickets was entered on September 9, 1995. Sobieck's attorney in the civil case was, at that time, incarcerated in Alachua County. He knew about the proceeding, but no one appeared to contest the summary default judgment. No one moved to set aside the default. No appeal was taken from the final judgment.

The final judgment in the civil case forfeited all of the property subject to the forfeiture suit. It also ordered forfeiture under chapter 895 (the RICO Act) of any additional funds or property which were the result of unlawful ticket sales, enjoined further ticket sales, and revoked all licenses and corporate charters of Sobieck or his business to operate in the resale of tickets business. It also assessed two civil penalties, totalling $20,000.00 for two separate actions which involved unfair and deceptive trade practices, pursuant to section 501.2075 (a civil penalty of $10,000.00 for each violation) for willfully violating section 501.204 by engaging in unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.

The trial court ruled on February 20 and 21, that forfeiture of the property, which included a $10,000 Certificate of Deposit, $56,000.00 worth of unsold tickets,$24,000.00 in cash and imposition of the $20,000.00 civil penalty, constituted "punishment" for purposes of the double jeopardy clause. Since criminal sanctions were being sought in a subsequent proceeding for the same acts, which triggered forfeiture and imposition of the penalties, the criminal counts based on RICO, and violations of sections 559.927, 501.201-213, and 817.36(2)(a) must be dismissed. It relied on Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994); Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); and United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). We reverse.

The trial court also ruled that section 817.36(2)(a), which makes the offering for sale of any ticket to any "sporting exhibition, athletic contest, theater, or any exhibition where an admission price is charged, and receives a price in excess of $1 above the retail admission price charged therefor by the original seller," a second degree misdemeanor, was constitutional as against due process and equal protection challenges. The appellee cross-appeals this ruling. We affirm.

I. Double Jeopardy--Civil Forfeiture

The trial court ruled that Sobieck had been criminally punished in the prior civil proceedings in which the state had sought and obtained forfeiture of personal property, cash, tickets, a $10,000.00 certificate of deposit put up as collateral for operation of the business as a registered seller of travel pursuant to section 559.929, and a Jeep Cherokee. It also ruled that the assessment of two $10,000 civil penalties for two incidents of Sobieck's violation of section 501.204 (commission of unfair or deceptive acts or practices in the conduct of trade or commerce), presumably based on Sobieck's failure to follow section 559.927 in reselling tickets as a registered seller of travel, constituted a form of criminal punishment. It concluded the concept of double jeopardy constitutionally ⁴ barred the criminal prosecution for acts arising out of the same events for which the forfeiture and penalties arose.

With regard to the forfeitures, we think that United States v. Ursery, 518 U.S. 267, ----, ----, 116 S.Ct. 2135, 2137, 2144, 135 L.Ed.2d 549 (1996), which the trial court did not have the benefit of reading prior to making its ruling, has substantially clarified Halper, Austin and Kurth Ranch, which the supreme court noted had been misread by the federal court of appeal. ⁵ . In Ursery, the federal government instituted civil forfeiture proceedings against Ursery's house, on the basis that it had been used to facilitate illegal drug transactions. He settled that claim and was subsequently convicted of manufacturing marijuana. He argued his criminal prosecution was barred by double jeopardy. The circuit court of appeals agreed.

In the case consolidated with Ursery, ⁶ the federal government filed a civil in rem complaint against property seized from, or titled to, Arlt and Wren, or Payback Mines, a corporation controlled by Arlt. The property was involved in money laundering, and constituted the proceeds of a felonious drug transaction. Arlt and Wren were prosecuted and convicted on drug and money laundering charges. They argued the forfeiture proceedings were barred by double jeopardy and the circuit court agreed. The United States Supreme Court held that the civil in rem forfeitures were not punishments, and therefore double jeopardy was not applicable as a bar in either case.

The Court recognized that since the earliest years of this nation's existence, Congress has authorized the government to seek parallel in rem civil forfeiture actions and criminal prosecutions based on the same underlying events. It re-established the rules set out in United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984); One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972); VARIOUS ITEMS OF PERSONAL PROPERTY V. UNITED STATES, 282 U.S. 577, 51 S.CT. 282, 75 L.ED. 558 (1931)⁷. In general, civil forfeitures of property involved in criminal activity, or which constitute its proceeds, are not criminal trials or punishments. It distinguished Halper as having involved a civil penalty, not a civil forfeiture. Id. at ----, 116 S.Ct. at 2138. It distinguished Austin as not involving the double jeopardy clause at all, but rather the Eighth Amendment excessive fines clause. Id. And, it distinguished Kurth Ranch as having involved a punitive tax which was the functional equivalent of a successive criminal prosecution. In analyzing civil forfeitures, the Ursery opinion (Part II-C) conducted the two-part inquiry established in 89 Firearms, at 362-366, 104 S.Ct. at 1105-1107. First, did the Legislature intend the proceedings to be criminal or civil; and second, was the proceeding so punitive in fact as to persuade the court that the forfeiture proceedings are not fairly viewed as civil in nature?

The forfeiture in this case was bought pursuant to chapter 932 the Florida Contraband Forfeiture Act, which sets out the goals and procedures to be followed. Its stated purpose is "to deter and prevent the continued use of contraband articles for criminal purposes while protecting the proprietary interests of innocent owners and lienholders, and to authorize such law enforcement agencies to use the proceeds collected under the Florida Contraband and Forfeiture Act as supplemental funding for authorized purposes." § 932.704(1), Fla. Stat. (Supp.1996). But the statute states the potential for obtaining revenues from forfeitures is not its overriding purpose. The procedure set forth to be used is civil, and the case must proceed before a circuit judge in the civil division with the Florida Rules of Civil procedure governing. § 932.704(2), Fla. Stat. (Supp.1996). Thus the Legislature's intent that the forfeiture be a civil remedy is express. Chapter 932 further provides that the ultimate issue of forfeiture shall be decided by a jury, unless such...