Opinion
Case No. 3D02-233.
Opinion filed September 30, 2002.
An Appeal from the Circuit Court for Miami-Dade County, Philip Bloom, Judge. Lower Tribunal No. 01-28427.
John E. Bergendahl, for appellant.
Andrew B. Ginsburg, and Robert S. Glazier, for appellee.
Before GERSTEN, GREEN and SORONDO, JJ.
Wayne Chuck appeals the trial court's non-final order that denied his motion to dismiss this forfeiture proceeding for failure to conduct an adversarial preliminary hearing within ten days of his request for same as provided by section 932.703, Florida Statutes (2000), the Florida Contraband Forfeiture Act (the Act); found probable cause existed for the seizure of currency; and determined that Chuck lacked standing to participate in the hearing. Because the net effect of this ruling determined the immediate right to possession of money, we have jurisdiction to review this non-final order pursuant to rule 9.130(3)(C)(ii), Florida Rules of Appellate Procedure. The facts of the case follow.
We do not reach the issues of standing or probable cause.
As part of an ongoing money laundering investigation, officers from the Homestead Police Department established surveillance on and later stopped Wayne Chuck's 2001 Acura Legend on November 3, 2001. The stop was executed by officers of the Florida Highway Patrol. A man named Donavin A. Grant was the driver and Chuck was the passenger. After two narcotics dogs alerted to the trunk of the car, Chuck identified himself as the owner of a diaper box containing $380,000.00 in U.S. currency.
Following the seizure of the money and a brief interrogation, Chuck was arrested for violations of section 896.101(3)(b), Florida Statutes (2000). He was held in custody for twenty-one days, at which time the State of Florida "no actioned" the charges and he was released.
On November 8, 2001, a Notice of Seizure Pending Forfeiture was sent to Chuck at the jail where he was being detained. Chuck received the notice on November 13, 2001. On November 27, 2001, he sent a request for an adversarial preliminary hearing pursuant to section 932.703(2)(a), Florida Statutes (2000), and claimed the money taken from him on November 3, 2001. In response to the claim and request, the City of Homestead Police Department filed a pleading entitled, "Emergency Request for Adversarial Preliminary Hearing Pursuant to the Florida Contraband Forfeiture Act", on November 28, 2001. In its request, the City asked the trial court to conduct the hearing no later than December 10, 2001, or as soon as reasonably possible so as to avoid dismissal. Despite this warning, the trial court scheduled the hearing for December 17, 2001. On that date, the parties agreed to continue the hearing to December 19, 2001.
At the hearing on December 19, 2001, Chuck moved to dismiss the forfeiture action for failure to hold the adversarial preliminary hearing within ten days after the request was received or as soon as practicable thereafter pursuant to section 932.703(2)(a), Florida Statutes (2000). The trial court denied the motion.
In Dep't of Law Enforcement v. Real Prop., etc., 588 So.2d 957 (Fla. 1991), the Florida Supreme Court upheld the facial constitutionality of the Act, provided that it was applied in a manner consistent with the minimal due process provisions of the Florida Constitution. The court went on to define these provisions and established, among other things, that adversarial preliminary hearings to determine probable cause were required. The court said:
After the ex parte seizure of personal property, the state must immediately notify all interested parties that the state has taken their property in a forfeiture action; and that they have the right to request a post seizure adversarial preliminary hearing. If requested, the preliminary hearing shall be held as soon as is reasonably possible to make a de novo determination as to whether probable cause exists to maintain the forfeiture action; and to determine whether continued seizure of the property is the least restrictive means warranted by the circumstances to protect against disposal of the property pending final disposition. Again, as with real property forfeitures, this initial stage should be expeditiously completed, and we anticipate that the adversarial preliminary hearing, if requested, will take place within ten days of the request.
Id. at 965-66 (emphasis added). Since then, the Florida Legislature amended the Act to provide that where personal property has been seized, and the claimant requests a preliminary hearing, it "must be held within 10 days after the request is received or as soon as practicable thereafter." § 932.703(2)(a), Fla. Stat. (2001).
The issue presented here was raised in Cochran v. Harris, 654 So.2d 969 (Fla. 4th DCA 1995). In Cochran, the Broward County Sheriff's office seized currency, along with drugs and weapons. The Sheriff was not diligent in scheduling the adversarial preliminary hearing and twenty-three days passed between the day of the request and the originally scheduled day for the hearing. The court affirmed the trial court's dismissal of the action, concluding "that the 23 day delay . . . [did] not comply with section 932.703 (2)(a), because the hearing did not occur in 10 days or as soon as was practicable." Id.; see also State Dep't of Highway Safety and Motor Vehicles v. Metiver, 684 So.2d 204 (Fla. 4th DCA 1996) (five-day delay in scheduling hearing required dismissal).
The argument has been made, that where the seizing agency has done all it can to schedule the hearing within the required time frame, but the court nevertheless fails to schedule a timely hearing, the agency should not be penalized with dismissal. In the present case, the Homestead Police Department (HPD) acted immediately upon receipt of claimant's request for a preliminary hearing. Indeed, on the very day claimant filed his request, HPD filed its request for adversarial preliminary hearing pursuant to the Act, asking that the hearing be scheduled no later than December 10, 2001, in order to avoid a possible dismissal. Despite this request, the trial court scheduled the hearing for December 17, 2001, seven days beyond the ten-day period. The only reason given by the court was that it was involved in a jury trial.
In Cochran, the court addressed the joint responsibility of the seizing agency and the court to ensure that timely hearings are provided:
Because the consequence of not having a timely hearing works to a claimant's advantage, since the forfeiture proceedings will be dismissed if the delay amounts to a denial of due process, the burden must fall on the government to see that the preliminary hearing does occur as soon as possible. And, in addition to the governmental agencies having to take the initiative in setting preliminary hearings, the courts must adapt their schedules so that claimants who request preliminary hearings get them promptly.
Id. at 972 (emphasis added). We agree that although the seizing agency must take the initiative in scheduling these hearings, the ultimate responsibility for providing timely hearings rests with the courts , since no party can schedule a hearing without leave of court.
Relying on the language in Cochran, HPD argues that a case like this should be dismissed only where "the delay amounts to a denial of due process." Id. The delay in the present case, the argument goes, did not constitute such a denial. It is clear that the trial judge was also thinking along these lines when he asked Chuck's counsel:
Is there anything special about this situation where your client has been horrendously prejudiced; for example, he did not buy a piece of property that he was bring [sic] a down payment for or something that was unduly prejudice [sic] to him as a result of these several days he has been hurt badly?
We do not believe that such a showing of actual prejudice, independent of the loss of the use of the personal property at issue, is necessary. The prejudice suffered by the claimant lies in the inherent nature of a forfeiture action which allows for the ex-parte seizure of personal property without notice or a hearing. Thus, the claimant whose automobile has been seized is entitled to the benefit of the ten-day rule even if he or she is unemployed and does not really have anywhere to drive in the morning. Likewise, in the present case, the fact that Chuck may have had no immediate plans to spend or invest the money in question does not vitiate his right to a preliminary hearing within the contemplated ten days.
In Real Property, the supreme court held that due process required a prompt preliminary hearing and stated simply that it expected such hearings to be conducted within ten days. Real Property, 588 So.2d at 961. The Florida Legislature incorporated this time frame in the statute but added the language "or as soon as practicable thereafter," in an apparent effort to account for unforeseeable and unavoidable yet understandable and justifiable delays. Because the ten-day time frame is integral to the Florida Constitution's provision of due process, any exception to the rule must logically be limited to extraordinary circumstances.
In Metiver, the court interpreted the language of the statute as follows:
We do not construe the "as soon as practicable" wording in the statute as carte blanche authority for a seizing agency to cause a hearing to be set beyond the ten-day limit because the agency or its attorneys did not find it convenient to act sooner. Rather, that exception simply authorizes a setting court to schedule a hearing beyond the ten-day period in the event it is not practicable to set the hearing within the ten-day limit. We do not, however, construe the statute as authorizing the government entity to delay acting for reasons such as internal scheduling, agency, attorney, or officer workload, agency or police procedures, etc., which result in the court's inability to schedule a timely hearing.
Metiver, 604 So.2d at 205 (emphasis added). As we observed above, immediately upon receipt of Chuck's request for a preliminary hearing, counsel for HPD sought a hearing within ten days and warned of the consequences of non-compliance with the statute. He did not get one, and, in the final analysis was powerless to achieve his goal without the court's cooperation. Like the court in Metiver, we do not construe the exception to allow for a delay beyond the ten days as a result of internal scheduling problems of the seizing agency. Similarly, the trial court's ordinary scheduling problems also do not constitute a valid reason for invocation of the exception. The scheduling problems we consider invalid are those that inhere in the system. The parties in the present case do not contest that the trial judge was involved in a complex jury trial and that he was working hard to bring it to a conclusion. Jury trials, however, like bench trials and hearings on motions, are what judges do on a daily basis, and it is to be expected that they will always be busy with such matters. The statute does not contemplate that judges' busy schedules will obviate the need to comply with the timing requirement of the statute. Concluding to the contrary would effectively eviscerate the ten-day provision of the statute.
We are aware of the burdens created by the high volume of cases pending in our trial courts. Although we are sympathetic, we cannot ignore the fact that contrary to ordinary notions of due process, the Act allows the seizure of personal property without the benefit of notice or a hearing. Moreover, we cannot ignore our supreme court's conclusion that the Act is constitutional only when the procedural safeguards explained in Real Property are implemented. The timing provision at issue here is one such safeguard. Accordingly, although we can conceive of situations that might require the scheduling of a preliminary hearing in this context beyond the ten-day period envisioned by the supreme court and the legislature — they are few, and the justification for doing so will be carefully reviewed. A forfeiture statute must be strictly construed. See Real Property, 588 So.2d at 961; Metiver. 684 So.2d at 205-206; Cochran, 654 So.2d at 971.
It is impossible to list every contingency that might justify the scheduling of a preliminary hearing beyond the ten- day period, and we will not endeavor to do so. Such extraordinary circumstances must necessarily be reviewed on a case by case basis.
We reverse the order under review and remand for entry of an order dismissing this forfeiture proceeding.