State v. Property Located at # 70 Oakland StreetState v. Property Located at # 70 Oakland Street
- Reporters:
- ,
- Before:
- Thomas F. Daley, Charles Grisbaum Jr., Edward A. Dufresne Jr.
This appeal concerns civil forfeiture pursuant to
Whalen was arrested at his residence, 70 Oakland Street, on March 8, 1996, for possession of heroin. Pursuant to a plea agreement, he was sentenced to seven years at hard labor on November 12, 1996 for possession of heroin, a violation of
The record shows that Whalen filed a Motion to Proceed In Forma Pauperis on October 27, 1997, which was granted. Next, Whalen filed Motion to Dismiss, alleging, among other things, that the State did not comply with the provisions of
Susan Lampley Brown1 filed an affidavit objecting to the subject forfeiture on May 20, 1997, wherein she attested that she was the provisional administratrix of the Succession of Dolores Patterson Whalen, wife of and Joseph V. Whalen, and that the successions were the title holders to the subject property, not defendant Whalen, and further that defendant did not have the right to convey an interest in the property.
The record shows that the Petition in Rem was set for trial on February 25, 1998, and that Whalen was served with this notice. On February 6, 1998, Whalen filed Interrogatories into the record.
On February 25, 1998, the court heard the forfeiture action. Defendant Whalen was not present in court, apparently not having asked for a writ to be transported from jail to the hearing. The court considered his Motion to Dismiss and the arguments made therein. On the same day in open court, the trial court issued a judgment of forfeiture, ordering Whalen‘s interest in 70 Oakland Street forfeited, and also ordering the forfeiture of the $378 in cash. On March 16, 1998, Whalen filed a Motion for New Trial, arguing that he was denied his right to present a defense and that the state had the obligation to transport him to trial. He also alleged that the clerk of court advised him that the record did not contain his previously filed Motion to Traverse and Summary Judgment.2 The Motion for New Trial was denied on the grounds that defendant also filed a Motion for Appeal on March 30, 1998, that was granted.
On April 14, 1998, defendant filed a Petition for Nullity, arguing that the notice requirements of
The State opposed the Petition for Nullity on the grounds that Whalen acquiesced in the judgment, because he admitted he knew of the trial date yet failed to attend or send any representative to attend, and he failed to file a writ requesting his presence at court as per
Defendant appeared in court on May 25, 1998 to argue his action for nullity. The trial court, while complimenting him on his pleadings and arguments, ruled against him. A judgment was signed on May 27, 1998, dismissing his Petition of Nullity insofar as it referred to his interest in the property at 70 Oakland Street, but granting it insofar as it ordered forfeited the cash in the amount of $378, because the same was never referred to in the Notice of Pending Forfeiture or pleadings.
Whalen‘s appeal concerns the Judgment of Forfeiture.
Analysis—Issue # 1
The applicable law is found at
§ 2608. Commencement of forfeiture proceedings; property release requirements
Forfeiture proceedings shall be commenced as follows:
(1) If the district attorney fails to initiate forfeiture proceedings against property seized for forfeiture by serving Notice of Pending Forfeiture within one hundred and twenty days after its seizure for forfeiture or if the state fails to pursue forfeiture of the property upon which a timely claim has been properly served by filing a Petition for Forfeiture proceeding within ninety days after Notice of Pending Forfeiture, the property shall be released from its seizure for forfeiture on the request of an owner or interest holder, pending further proceedings pursuant to the provisions of this Chapter.
(2) If, after Notice of Pending Forfeiture, a claimant filed a request for stipulation of exemption pursuant to Section 2610 of this Chapter, the district attorney may delay filing its judicial forfeiture proceeding for a total of one hundred and eighty days after the Notice of Pending Forfeiture.
The State filed a Notice of Pending Forfeiture on March 20, 1997. In that Notice, the date of seizure of the property is listed as March 8, 1996. In the nullity proceeding, the State argued, however, that it never seized the property prior to filing the Notice of Pending Forfeiture, and moreover that Whalen was confusing seizure with the date of his arrest. However, the State clearly listed March 8, 1996 as the date of seizure in its Notice of Pending Forfeiture, and the listing of this date is a mandatory statutory requirement without which the Notice is deemed insufficient. State v. 1987 Ford, 94-0803 (La.App. 1 Cir. 3/3/95), 652 So.2d 633. Therefore, we find that the State established the date of seizure in its Notice of Pending Forfeiture. Although the State argues that it never actually seized the property, it appears that there is a question regarding this because of the date of seizure listed.
The issue of the date of seizure in relation to the date of the filing of the Notice of Pending Forfeiture is moot, however, in light of
Analysis—Issue # 2
Defendant argues that the state failed to provide a statement of nonexempt interest. He alleges that he filed a timely request for stipulation of exemption, as per
Stipulations of exemption are regulated by
The Notice of Pending Forfeiture was filed on March 20, 1997. The record contains no request for stipulation of exemption. The stipulation of exemption and attached affidavit, attached to defendant‘s brief (although we may not consider it), dates that document as May 16, 1997, which is untimely under the statute as being filed more that thirty days after the date of the filing of the Notice of Pending Forfeiture.
Moreover,
Analysis—Issue # 3
In this assignment, defendant argues that he was not provided with a reasonable opportunity to make a defense, because he was not transported to the courthouse for the hearing.
In brief, defendant admits that he knew of the trial date, and was on the phone with the trial court several times the day of the hearing. He tacitly admits that he did not file a Petition and Order for Writ of Habeas Corpus Ad Testificandum, asking to be transported to court to testify when this matter was set for hearing.
B. When in any judicial proceeding the testimony of an inmate is required by law to be given in open court or an inmate is a party to a judicial proceeding under circumstances giving him the legal right to be present in open court at any stage of the proceeding, the trial judge, in his discretion, may order that the court be convened and the testimony of the inmate be taken, or the proceedings conducted, at the institution wherein the inmate is confined.
In the instant case, Whalen‘s testimony was not required by law. At a forfeiture hearing, the state bears the burden of proving, by a preponderance of the evidence, the relationship of the property to be forfeited to the conduct that gives rise to forfeiture. State v. One (1) 1991 Pontiac Trans Sport Van, 98-64 (La.App. 5 Cir. 7/9/98), 716 So.2d 446.
Nor does an inmate defendant have a legal right to be present at a civil forfeiture hearing. Articles 831-836 of the Code of Criminal Procedure outline when a defendant in a criminal proceeding is required to be present in court. These articles refer to
Whalen argues that the court‘s or jail‘s failure to transport him to the courthouse for the hearing deprived him of his right to a defense. Despite Whalen‘s failure to file an answer to the Petition In Rem, and despite his failure to attend the hearing, the court did not enter a default judgment against him. We note that the court had the benefit of Whalen‘s Motion to Dismiss, which outlined several procedural defenses (not defenses on the merits) he asserted against the forfeiture action. The court also had the affidavit of Susan Lampley Brown, objecting to the seizure of the property. The State presented its whole case, not merely evidence that would suffice in a default judgment proceeding (prima facie case), and the court rendered judgment accordingly.
In light of defendant‘s knowledge of the trial date, his failure to file a continuance, failure to seek issuance of a writ to secure his presence at the trial, failure to request to appear personally or have the proceeding conducted at the penal institution, we do not find that the trial court‘s proceeding without Whalen‘s presence was an abuse of discretion or prejudiced his ability to present a defense.
Analysis—Issue # 4
Last, Whalen contends that the forfeiture of his interest in the property constitutes double jeopardy.
The United States Supreme Court ruled on this issue in U.S. v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). In that decision, the Court held that civil forfeitures generally do not constitute “punishment” for purposes of the Double Jeopardy Clause.
Previously, Louisiana courts evaluated civil forfeitures by the two part test found in State v. Johnson, 94-0595, 94-1077 (La.1/16/96), 667 So.2d 510: Does the civil penalty (1) impose a sanction overwhelmingly disproportionate to the damages the offender has caused, and (2) bear no rational relation to the goal of compensating the government for the cost it was incurred in investigating and prosecuting the violation. But recent jurisprudence recognizes that the two part test from Johnson has been abrogated by the subsequent United States Supreme Court jurisprudence. See State v. Colarte, 96-0670 (La.App. 1 Cir. 12/20/96), 688 So.2d 587; State v. Perez, 95-2445 (La.App. 1 Cir. 12/20/96), 686 So.2d 114. Therefore, the civil forfeiture of Whalen‘s interest in the property does not constitute double jeopardy.
Accordingly, for the reasons assigned, we affirm the judgment of forfeiture.
AFFIRMED.