Opinion
No. 88-1196.
March 16, 1989. Rehearing Denied April 13, 1989.
Appeal from the Circuit Court, Orange County, W. Rogers Turner, J.
William A. Greenberg of Greenberg and Lester, Fern Park, for appellant/cross-appellee.
James Patrick Curry of Curry, Taylor and Carls, Orlando, for appellee/cross-appellant.
Williams appeals an order forfeiting his automobile pursuant to sections 932.701- 932.704, Florida Statutes (1987). We reverse.
A law enforcement agency attempting to effectuate a forfeiture must prove by the preponderance of the evidence that the automobile "has been or is actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony". Section 932.701(2)(e) Florida Statutes (1987). As Judge Zehmer observed in Crenshaw v. State, 521 So.2d 138, 141 (Fla. 1st DCA 1988), review granted, Case No. 72,181 (Fla. May 13, 1988).
[S]ome nexus must be found to exist between the occupant's use of the vehicle and the prohibited criminal conduct beyond what may be characterized as remotely incidental use. (emphasis added)
Williams' use of his BMW automobile to drive approximately one block to an apartment where he allegedly committed the crime of a lewd and lascivious act on a child can only be considered remotely incidental to his criminal conduct.
REVERSED.
DAUKSCH, J., concur.
COBB, J., concurs specially with opinion.
In order to reverse the instant forfeiture, it is necessary to distinguish the facts here from those in Duckham v. State, 478 So.2d 347 (Fla. 1985), relied upon by the state to support an affirmance.
In Duckham the defendant drove alone to a restaurant where he negotiated a drug deal, and then drove alone to his apartment where he again met the putative purchaser (an undercover policeman) and the ultimate sale and delivery occurred there. Under the facts in Duckham the forfeited vehicle was used to facilitate the drug deal after it was already in progress; in the instant case the evidence does not show that the defendant's use of his vehicle intervened during the progress of the criminal activity.