STATE OF GEORGIA v. WILBANKS
A92A2284
Court of Appeals of Georgia
March 19, 1993
April 2, 1993
430 SE2d 668
ANDREWS, Judge.
What is clear is that, in January 1987, when the Tanners signed the release at issue here, a general release of one joint tortfeasor released all and parol evidence was not admissible to vary the terms of the written document. Therefore, I believe the court below erred in denying summary judgment to Otis and Pickett. Kahn v. Columbus Mills, 188 Ga. App. 90, 91 (1) (371 SE2d 908) (1988); Thomaston, supra.
DECIDED MARCH 19, 1993 —
RECONSIDERATIONS DENIED APRIL 2, 1993.
Long, Weinberg, Ansley & Wheeler, M. Diane Owens, Carlton E. Joyce, for appellant (case no. A92A2228).
Carter & Ansley, Tommy T. Holland, Christopher N. Shuman, for appellant (case no. A92A2229).
Cobb & Walton, James B. Walton, for appellee.
ANDREWS, Judge.
A purchase of 1.4 grams of cocaine was made by a confidential informant acting at the direction of the North Georgia Narcotics Enforcement Team (NET) from the appellee James Bradford Wilbanks at his mobile home residence located on 4.37 acres of real property. NET executed a search warrant on the real property and seized from the mobile home 6.6 grams of cocaine found in a cookie jar in the kitchen, 12.8 grams of marijuana on top of a TV set in the living room, a .367 Smith & Wesson pistol found on a table in the master bedroom, a .22 Caliber rifle and a Browning 12-gauge shotgun found in the master bedroom closet, a set of Ohaus scales found in the master bath, and a programmable scanner found on the kitchen counter.
After Wilbanks pled guilty to possession of more than one ounce of marijuana and possession with intent to distribute cocaine, the State, acting by and through the District Attorney of Murray County, filed a complaint for forfeiture of the real property, weapons and per
Wilbanks also owned the mobile home and a 4/6 interest in the real property. The court determined that his interest in both the mobile home and the real property within the curtilage was “directly or indirectly, used and intended for use to facilitate the possession of cocaine and marijuana in violation of
1. In its sole enumeration of error, the State contends that the court erroneously interpreted the language and legislative intent of the statute by limiting the real property forfeiture to the curtilage, instead of determining that the entire 4.37 acres was subject to forfeiture. The State argues that
By its explicit language,
Unlike
Because of the difference between the Georgia and federal statutes, the federal cases construing
Although the trial court‘s interpretation of
2. Wilbanks argues in his brief that the trial court made no finding that the mobile home had a permanent foundation or was affixed to the land so as to become a part of the real property, rather than only being temporarily parked thereon, in order to authorize the forfeiture of the land. However, Wilbanks did not file an appeal as to the forfeiture of the land within the curtilage and did not enumerate this as error. Moreover, it does not appear from the record that this issue was raised in the proceedings below, and it will not be considered for the first time on appeal. Carruth v. Brown, 202 Ga. App. 656, 657 (415 SE2d 470) (1992).
Judgment affirmed with direction. McMurray, P. J., Cooper, Johnson and Blackburn, JJ., concur. Pope, C. J., Birdsong, P. J., and Beasley, P. J., dissent.
BEASLEY, Presiding Judge, dissenting.
I respectfully dissent.
Wilbanks argues that the State‘s reliance upon federal cases holding to the contrary is misplaced because the Georgia statute does not explicitly state, as does
A cardinal rule of statutory construction is that “the court must first ascertain the legislative intent in enacting the law and then construe the law to implement that intent. [Cit.]” State of Ga. v. Jackson, 197 Ga. App. 619, 620 (1) (399 SE2d 88) (1990). The legislature used broadly inclusive language in
We have recognized that the State‘s interest in a forfeiture proceeding “is only to prevent a guilty party from further misusing the property,” and is thus remedial in nature. State of Ga. v. Sewell, 155 Ga. App. 734, 735 (2) (272 SE2d 514) (1980). The legislature explicitly expressed its intent by directing in subsection (z) that “[t]his Code section must be liberally construed to effectuate its remedial purposes.” The federal forfeiture statute contains no such clear legislative directive.4 Neither did the Georgia statute before the amendment, when it was strictly construed. See State of Ga. v. Jackson, supra.
To permit the forfeiture of only an internal portion of a tract of land, not even including the access by which the drugs were brought in, as the trial court did here, according to the State‘s undisputed description below, thwarts the legislative intent and in addition results in many problems of practical usage and conveyance, which the4
In In the Matter of a Parcel of Real Property Known as 1632 N. Santa Rita, Tucson, 801 P2d 432 (Ct. App. Ariz. 1990), the Arizona Court of Appeals considered the same issue, under ARS § 13-2314 (F). It allows state forfeiture in racketeering cases, which covers possession of marijuana for sale. One of the categories subject to forfeiture, in subsection (3), is “all ... property ... used or intended to be used in any manner or part to facilitate the commission of the offense.” That court ascertained that this subsection “serves two purposes. It deprives the defendant of the means to commit further offenses, and it also helps the state defray the expenses of the investigation and prosecution. Based on the first purpose alone, the statute can be fairly characterized as remedial.” Id. at 436 (1). It further determined that, “like the federal statute, A.R.S. § 13-2314 (F) states that all property used to facilitate the commission of the offense is subject to forfeiture.” (Emphasis in original.) Id. at 437 (5). The Arizona statute does not contain the detail found in the federal statute. Nevertheless, the operative words were “all property.” Those same all-inclusive words are used in the Georgia statute. See also In re Land Located in Effingham, New Hampshire, 561 A2d 1061 (NH 1989) (entire 84-acre tract forfeited although marijuana found growing on only a portion of it; issue was whether the owner was aware of the drug violation).
The trial court incorrectly ruled that under the statute only real property within the curtilage of the mobile home is forfeited. No such carving out is contemplated by the statute. Of course, the innocent owners’ interests are protected.
I am authorized to state that Chief Judge Pope and Presiding Judge Birdsong join in this dissent.
DECIDED MARCH 19, 1993 —
RECONSIDERATION DENIED APRIL 2, 1993.
Jack O. Partain III, District Attorney, Gary D. Bergman, Special Assistant District Attorney, for appellant.
William W. Keith III, Karen E. Luffman, for appellee.