State v. Wichmann
| Decision Date | 12 February 1999 |
| Docket Number | No. 98-02531,98-02531 |
| Citation | 726 So.2d 380 |
| Parties | STATE of Florida, Appellant, v. Rudolph WICHMANN, Jr., Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.
Donald P. Day of Berry, Day & McFee, P.A., Naples, for Appellee.
The State challenges the trial court order finding that section 316.193(6)(d), Florida Statutes (1997), violated the due process clause and was accordingly unconstitutional. We reverse because the only party with standing to raise the issue was not properly before the court and, even so, that section of the statute has already been found to be constitutional by the Fourth District in State v. Ginn, 660 So.2d 1118 (Fla. 4th DCA 1995), rev. den, 669 So.2d 251 (Fla.1996).
The challenged section provides that when an individual is convicted of DUI, in addition to any other penalty imposed, the court shall also order the impoundment of the vehicle that was driven by, or in the control of, the offender. The vehicle is to be impounded for ten days. If the offender is not the owner of the vehicle, within seven business days of the order of impoundment, the clerk shall send notice of the impoundment to the registered owner. If the owner believes the vehicle was wrongfully taken, he or she may file a complaint in county court, and may have the vehicle released by posting a bond or other security to cover the cost of impoundment.
Appellee here was driving his employer's vehicle when he was arrested for DUI. He pleaded guilty or no contest and was adjudicated guilty. The vehicle he was driving, which was registered in the name of his employer, Annco Services, Inc., was impounded. Pursuant to the statute, the clerk notified Annco that its vehicle had been impounded for ten days. Appellee's counsel filed a motion, purportedly on behalf of appellee and Annco, asking the court to declare the statute unconstitutional, arguing that the statute improperly authorized the governmental taking of an innocent owner's property without due process and, furthermore, that the statute's effect of "punishing innocent owners of vehicles does not bear a rational relationship to a legitimate state objective." Following a hearing, the court agreed with appellee and found the statute unconstitutional on due process grounds. The trial court order also certified to us the following as a question of great public importance:
Whether section 316.193(6)(d), Florida Statutes, affords third party owners adequate due process of law when they have not been notified or given an opportunity to be heard in a meaningful hearing prior to the issuance of an order taking their personal property and impounding it for the statutorily required period.
We observe first that the issue of the constitutionality of the statute was not properly presented to the trial court for consideration. Annco did not follow the proper procedure for attacking the impoundment of its vehicle. Under section 316.193(6)(d), a third party owner or lienholder may challenge the impoundment by filing a civil complaint in county court. According to the record before us, Annco did not do this. Rather, appellee's counsel filed a motion in the criminal action, purportedly on behalf of both Annco and appellee, seeking to have the statute declared unconstitutional. However, Annco was not a proper party in the criminal action since it was not listed as a defendant on the information. Moreover, Annco never became a proper party to the action since appellee's counsel, who purported to act on Annco's behalf, never filed a notice of appearance on behalf of Annco, never filed a motion to intervene on behalf of Annco and, in fact, only signed the motion as "attorneys for defendant," which would not include Annco. Annco never signed the motion in any capacity. Under these circumstances, Annco was not a proper party before the court. See Fla. R. Civ. P. 1.230; Fla. R.Crim. P. 3.150(b) and 3.151. The only proper party before the court was appellee.
Appellee, however, did not have standing to raise the due process rights of Annco. A "person to whom a statute can be constitutionally applied may not challenge the statute on the grounds that it may result in an impermissible application to someone else." State v. Ginn, 660 So.2d 1118, 1120. See also State v. Summers, 651 So.2d 191, 192 (Fla. 2d DCA 1995)
(). Since appellee was not the...
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