Opinion
C.A. No. K10M-02-024 WLW.
Submitted: September 1, 2010.
Decided: December 13, 2010.
Upon the State of Delaware's Motion for Reconsideration Of State's Motion to Dismiss. Granted.
Robert J. O'Neill, Jr., Esquire, Department of Justice, Wilmington, Delaware; attorneys for the State of Delaware.
Michael Clark, pro se.
ORDER
FACTS
Michael Clark was arrested on October 22, 2009 when, during a routine traffic stop, a police officer determined that Clark had outstanding warrants for violation of probation. During a search incident to arrest, the officer found $1,890 in Clark's pocket. Thereafter, a K-9 unit arrived, and Nero the police dog indicated that the car contained narcotics. A search warrant was obtained for the car. No drugs were found in the car. However, the search did turn up a bag containing $32,010.00, which was seized. The currency was tested and found to contain trace elements of cocaine. Clark was imprisoned at the Sussex Correctional Institution.
On November 10, 2009, the State sent Clark a letter giving notice that it would seek forfeiture of the seized currency. Notice was posted in the Delaware News Journal and mailed to Clark's last known home address and his prison address. Clark received notice at his prison address on November 12, 2009. The notice indicated that Clark had a limited time of 45 days to file a motion in Superior Court opposing the forfeiture. Clark did not file his motion before the deadline on December 27, 2010. He did send the State Department of Justice a petition for the return of property; that petition was received by the State on January 10, 2010.
On January 5, 2010, the State filed a motion seeking forfiture of the currency pursuant to Section 4784. The Court granted the motion for forfeiture in an order dated January 14, 2010. On February 5, 2010, Clark filed a motion for the return of property.
PROCEDURAL HISTORY
The State filed a motion to dismiss, arguing that Plaintiff's petition was untimely and that the property had already been forfeited by Court order. Commissioner Freud denied the State's motion on April 22, 2010. The State has filed a motion for reconsideration, which is now before the Court.Standard of Review
Non-dispositive orders of a Commissioner are subject to reconsideration for clear error or abuse of discretion. Under Section 4784, currency used in the drug trade is subject to forfeiture. Currency found to contain residues of illegal drugs is presumed to have been used in the drug trade. The State must give notice to interested parties of its intent to seek forfeiture of seized property within 60 days of seizing the property. Property seized pursuant to Section 4784 is automatically forfeited to the State upon application to Superior Court unless the person opposing the forfeiture has filed an opposing motion within 45 days of notice.
Del. Super. Ct. Crim. R. 132.
Superior Court Rules of Civil Procedure, Rule 71.3
DISCUSSION
The Plaintiff's petition must be dismissed because he failed to timely file. On November 12, 2009, Plaintiff received notice of the State's decision to seek forfeiture. Thus, Plaintiff was required to file his motion with the Court no later than December 27, 2010. He failed to file by that date, and the Superior Court Commissioner granted the State's motion for forfeiture on January 14, 2010.
Plaintiff has not appealed the order of forfeiture. Instead, he filed an untimely petition for the return of property on February 1, 2010, which is two months beyond the statutory deadline. Even if the Court were to liberally construe the January 10 letter as a good faith effort to file sufficient to toll the statute, it would still be 14 days too late. Therefore, the State's April 22, 2010 motion to dismiss Plaintiff's petition for the return of property should have been granted.
CONCLUSION
For the foregoing reasons, Plaintiff's petition must be dismissed. The Commissioner's April 22, 2010 Order is vacated, and the State's motion to dismiss is granted.
IT IS SO ORDERED.