Florida Game & Fresh Water Fish Commission v. Blancett

521 So. 2d 244, 13 Fla. L. Weekly 546, 1988 Fla. App. LEXIS 764, 1988 WL 14574
CourtDistrict Court of Appeal of Florida
DecidedMarch 1, 1988
DocketNo. BP-472
StatusPublished

This text of 521 So. 2d 244 (Florida Game & Fresh Water Fish Commission v. Blancett) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Game & Fresh Water Fish Commission v. Blancett, 521 So. 2d 244, 13 Fla. L. Weekly 546, 1988 Fla. App. LEXIS 764, 1988 WL 14574 (Fla. Ct. App. 1988).

Opinion

JOANOS, Judge.

The Florida Game and Fresh Water Fish Commission (Commission) appeals an order denying forfeiture under the Florida wildlife statutes. The questions raised in this appeal are: (1) whether forfeiture is mandatory under the provisions of section 372.-[245]*2459901, Florida Statutes (1985), and (2) whether the decision to grant or deny forfeiture is discretionary when a conviction has been obtained under section 372.99, Florida Statutes (1985). We reverse.

On February 27, 1986, appellee George Stet Blancett was tried before a jury and found guilty of taking a deer out of season. The conduct leading up to appellee’s arrest and subsequent conviction began November 3,1985. On that date, appellee, together with three companions, embarked on what was intended to be a hunting trip to Georgia, where deer season had opened. They were traveling in the Ford van which is the subject of this appeal. The group stopped overnight in Hamilton County, where they parked the van at the home of a relative. All four hunters slept in the van.

In the early morning hours of November 4, 1985, appellee awoke and decided to get underway on the trip to Georgia. When he left the area where the four had spent the night, he took a wrong turn and found himself on a graded road. After driving approximately two miles, appellee observed deer running beside the van. When he spotted a buck attempting to jump a fence, he stopped the van, grabbed a rifle, exited the vehicle, loaded the rifle, and shot the deer. Appellee later characterized his conduct as “buck fever.” He then advised his companions that he had taken a wrong turn. The four companions placed the deer in the van, and then reversed their direction so as to continue the trip to Georgia.

Acting pursuant to a call to the Hamilton County Sheriff's Office, a deputy sheriff stopped the van on County Road 294, south of Jasper, Florida. The deputy opened the back door of the van, lifted a sleeping bag which was spread on the floor of the van, and discovered a freshly killed deer. The four occupants of the van were placed under arrest for possession of deer out of season. Sometime after the deputy’s discovery, appellee admitted killing the deer.

Appellee was adjudged guilty and sentenced to serve twenty days in the county jail, fined $500.00, and lost his hunting privileges for three years. The other three occupants of the van were acquitted at trial.

The state commenced forfeiture proceedings against the Ford van and the Winchester rifle used in the commission of the game law violation, pursuant to section 372.9901(3), Florida Statutes. After a hearing, the trial court found the circumstances giving rise to the forfeiture petition demonstrated that the role of the vehicle was incidental to the violation of section 372.99, Florida Statutes. Concluding that it would be an abuse of discretion to cause the vehicle to be forfeited, the trial court denied the petition for forfeiture of the Ford van, but granted the petition for forfeiture of the Winchester rifle.

The wildlife forfeiture provisions applicable to the instant case are section 372.99(1), Florida Statutes (1985), and section 372.-9901, Florida Statutes (1985). The conduct which constitutes the offense of “illegal taking” is described in section 372.99(1), which provides in relevant part:

Whoever takes or kills any deer or wild turkey, or possesses a freshly killed deer or wild turkey, during the closed season prescribed by law or by the rules and regulations of the Game and Fresh Water Fish Commission or whoever takes or attempts to take any deer or wild turkey by the use of gun and light in or out of closed season, is guilty of a misdemeanor of the first degree ... and shall forfeit any license or permit issued to him under the provisions of this chapter. No license shall be issued to such person for a period of 3 years following any such violation on the first offense_ (emphasis supplied).

Section 372.9901, which sets forth the procedural steps to be followed with respect to the property involved in the commission of the offense of illegal taking, states:

372.9901 Seizure of illegal devices; disposition; appraisal; forfeiture.—
(1) Any vehicle, vessel, animal, gun, light, or other hunting device used in the commission of an offense prohibited by s. 372.99, shall be seized by the arresting officer, who shall promptly make [246]*246return of the seizure and deliver the property to the Director of the Game and Fresh Water Fish Commission. The return shall describe the property seized and recite in detail the facts and circumstances under which it was seized, together with the reason that the property was subject to seizure. The return shall also contain the names of all persons known to the officer to be interested in the property.
(2) The director of the commission, upon receipt of the property, shall promptly fix its value and make return thereof to the clerk of the circuit court of the county wherein the article was seized; after which on proper showing of ownership of the property by someone other than the person arrested the property shall be returned to the said, owner.
(3) Upon conviction of the violator, the property, if owned by the person convicted, shall be forfeited to the state under the procedure set forth in ss. 372.-312 through 372.318, where not inconsistent with this section. All amounts received from the sale or other disposition of the property shall be paid into the State Game Trust Fund. If the property is not sold or converted, it shall be delivered to the director of the Game and Fresh Water Fish Commission, (emphasis supplied).

Our resolution of the issues in this appeal turns upon whether the section 372.-9901 forfeiture provisions are mandatory or directory. It is a fundamental principle of statutory construction that the ordinary meaning of language is preferred. Neal v. Bryant, 149 So.2d 529 (Fla.1962); Allied Fidelity Insurance Company v. State, 415 So.2d 109 (Fla. 3d DCA 1982); 2A Sutherland Statutory Construction § 57.03 (4th Ed.1984). In this context, the form of the verb used in the statute, that is, something “must,” “shall,” or “may” be done, is the foremost textual consideration. 2A Sutherland, supra, at 643. Ordinarily, the use of “shall” in a statute carries with it the presumption that it is used in the imperative rather than in the directory sense. Drury v. Harding, 461 So.2d 104, 107 (Fla.1984); S.R. v. State, 346 So.2d 1018, 1019 (Fla. 1977); Holloway v. State, 342 So.2d 966, 968 (Fla.1977); White v. Means, 280 So.2d 20, 21 (Fla. 1st DCA 1973); Bystrom v. Florida Rock Industries, Inc., 502 So.2d 35, 37 (Fla. 3d DCA), review denied, 511 So.2d 297 (Fla.1987).

Whether “shall” should be construed as mandatory will depend upon the context in which it is found and the legislative intent expressed in the statute. S.R. v. State, 346 So.2d at 1019; Brown v. Pumpian, 504 So.2d 481, 482 (Fla. 1st DCA 1987); Williamson v. State, 510 So.2d 1052, 1054 (Fla. 3d DCA 1987). More particularly—

where “shall” refers to some required action preceding a possible deprivation of a substantive right, S.R. v. State, supra; Neal v. Bryant, supra; Gilliam v. Saunders, 200 So.2d 588 (Fla. 1st DCA 1967), or the imposition of a legislatively-intended penalty,

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Related

Smith v. Hindery
454 So. 2d 663 (District Court of Appeal of Florida, 1984)
Brown v. Pumpian
504 So. 2d 481 (District Court of Appeal of Florida, 1987)
Allied Fidelity Ins. Co. v. State
415 So. 2d 109 (District Court of Appeal of Florida, 1982)
Holloway v. State
342 So. 2d 966 (Supreme Court of Florida, 1977)
White v. Means
280 So. 2d 20 (District Court of Appeal of Florida, 1973)
Neal v. Bryant
149 So. 2d 529 (Supreme Court of Florida, 1962)
Williamson v. State
510 So. 2d 1052 (District Court of Appeal of Florida, 1987)
Gilliam v. Saunders
200 So. 2d 588 (District Court of Appeal of Florida, 1967)
Interest of S. R. v. State
346 So. 2d 1018 (Supreme Court of Florida, 1977)
Bystrom v. Florida Rock Industries, Inc.
502 So. 2d 35 (District Court of Appeal of Florida, 1987)

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Bluebook (online)
521 So. 2d 244, 13 Fla. L. Weekly 546, 1988 Fla. App. LEXIS 764, 1988 WL 14574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-game-fresh-water-fish-commission-v-blancett-fladistctapp-1988.