Opinion
C.A. Nos. 07M-07-013, 07M-07-014.
Submitted: October 19, 2007.
October 29, 2007.
Andre' M. Beauregard, Esquire, Rehoboth Beach, DE.
Robert J. O'Neill, Jr., Esquire, Department of Justice, Wilmington, DE.
John W. Donahue, IV, Esquire, Department of Justice, Georgetown, DE.
Dear Counsel:
Petitioner Cesar Martinez ("petitioner") has filed two petitions with this Court seeking the return of two different sums of United States currency which were seized from him when he was arrested on drug-related charges. Petitioner has filed the petitions pursuant to16 Del. C. § 4784(j) and Superior Court Civil Rule 71.3(c). The State of Delaware ("the State") moved to dismiss each petition on the ground each was untimely filed. The parties orally presented their respective arguments on October 19, 2007. This is my decision on the pending motions to dismiss.
In 16 Del. C. § 4784(j), it is provided as follows:
Property seized pursuant to this section that is not summarily forfeited pursuant to subsection (f) of this section shall be automatically forfeited to the State upon application to the Superior Court if, within 45 days of notification of seizure to all known parties having possessory interest in the seized property by registered or certified mail to the last known post-office address of the parties in interest and by publication in a newspaper of general circulation in this State, the person or persons claiming title to the seized property do not institute proceedings in the Superior Court to establish:
(1) That they have the lawful possessory interest in the seized property; and
(2) The property was unlawfully seized or not subject to forfeiture pursuant to this section.
In Superior Court Civil Rule 71.3(c), it is provided in pertinent part as follows:
Petition for the return of property. An owner or interest holder may seek the return of property seized by the State pursuant to 16 Del. C., § 4784 by filing, costs prepaid, a civil petition, with the Superior Court sitting in the County in which the property was seized no later than 45 days after the date of the notice required by 16 Del. C., § 4784(j) measured from the date of mailing or the date of publication whichever shall be later. Such petition which must be signed by the owner or interest holder, under oath, and which must be served on the Attorney General, shall set forth the following:
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1) Martinez v. State , C.A. No. 07M-07-013
On April 12, 2007, petitioner was arrested on drug charges in Greenwood, Sussex County, Delaware. The criminal charges stemming from this arrest are located in the file of State v. Martinez, Def. ID# 0704015299. The criminal matter was resolved when petitioner pled guilty to the charge of possession with intent to deliver a narcotic schedule II controlled substance (cocaine) and was sentenced thereon.
The Court may take judicial notice of the criminal file in this matter. Delaware Uniform Rules of Evidence, Rule 201.
The criminal file shows that on April 13, 2007, petitioner was incarcerated on these charges and never posted bond. In other words, he has been incarcerated since April 13, 2007. The Criminal Justice Information System shows that he was incarcerated at Delaware Correctional Center ("DCC") as of April 13, 2007, and has remained there until the present.
On July 17, 2007, petitioner filed a petition seeking the return of $2,994.00 in United States currency ("$2,994.00") which was seized from him at the time he was arrested.
The State previously sought to obtain forfeiture of these sums in the case of In re $25,283.46, C.A. No. 07M-07-018. However, by order dated July 25, 2007, this Court ruled that the determination of whether the $2,994.00 would be forfeited would be considered in the case ofMartinez v. State, C.A. No. 07M-07-013. In re $25,283.46, Del. Super., C.A. No. 07M-07-018, Stokes, J. (July 25, 2007).
The State moved to dismiss the petition, arguing that because it was not filed within 45 days of notification of seizure, it was untimely filed. In support of its position, it submitted documentation showing that it had published notice of the seizure in The News Journal on May 17, 2007, and had sent notice of the forfeiture to petitioner at his home address of 25 E. Market Street, Greenwood, DE 19950 by way of letter dated May 14, 2007. A person with the last name of "Martinez" signed for the certified letter. The first name is difficult to decipher, but it appears to start with the letter "W". The State conceded at oral argument that it had not sent notice to petitioner at DCC.
In Superior Court Civil Rule 71.3(a), it is provided in pertinent part as follows:
(a) Notification of seizure. Notification of seizure pursuant to 16 Del. C., § 4784(j) shall be made within 60 days of the date of seizure. In addition to the notification of seizure required by 16 Del. C., § 4784(j), should any known party having a possessory interest in the seized property be incarcerated, the State shall send notification of seizure by first class mail sent to the correctional facility in which said party is confined. [Emphasis added.]
The State's standard notice procedure includes using the prison location list for determining if petitioners are incarcerated. In re: $2,053.00 in United States Currency, Del. Supr., No. 416, 1995, Walsh, J. (April 23, 1996). In this case, the State did not send notice to petitioner at DCC. The State has not shown that petitioner otherwise had notice of the forfeiture proceedings. Cf. Robinson v. State, 829 A.2d 414 (Del. 2003). Thus, I deny the State's motion to dismiss the petition as being untimely filed.
2) Martinez v. State , C.A. No. 07M-07-014
Petitioner also filed with this Court a petition seeking the return of $1,623.00 in United States currency ("$1,623.00") seized from him on April 12, 2007, when he was arrested on other drug-related charges at a location on Walnut Shade Road, Kent County, Delaware. The State filed a motion to dismiss that petition on the ground it was untimely filed. However, there are several roadblocks to deciding this pending motion.
Superior Court Civil Rule 71.3(c) instructs that petitioner must file the petition "with the Superior Court sitting in the County in which the property was seized. . . ." This petition was misfiled in Sussex County. The Court will enter an order transferring it to Kent County.
The question is whether the Court should consider the motion to dismiss before entering the transfer order. The Kent County Superior Court ordered the $1,623.00 forfeited on July 26, 2007. In re $4,322.10, Del. Super., C.A. No. 07M-07-016, Vaughn, P.J. (July 26, 2007). In order for the transferred petition to proceed, petitioner will need to take steps to vacate this order. Because the Court cannot predict the outcome of that proceeding, it is inappropriate to address the pending motion to dismiss.
Conclusion
For the foregoing reasons, I rule as follows.
First, as to the case of State v. Martinez, C.A. No. 07M-07-013, I deny the State's motion to dismiss the petition as untimely filed because the State failed to provide notice of the forfeiture to petitioner at DCC.
Second, I order that the case of State v. Martinez, C.A. No. 07M-07-014, be transferred to Kent County Superior Court.
IT IS SO ORDERED.