In re 1990 Red Cherokee Jeep

505 S.E.2d 588, 131 N.C. App. 108, 1998 N.C. App. LEXIS 1241
CourtCourt of Appeals of North Carolina
DecidedOctober 6, 1998
DocketNo. COA97-964
StatusPublished

This text of 505 S.E.2d 588 (In re 1990 Red Cherokee Jeep) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re 1990 Red Cherokee Jeep, 505 S.E.2d 588, 131 N.C. App. 108, 1998 N.C. App. LEXIS 1241 (N.C. Ct. App. 1998).

Opinion

LEWIS, Judge.

This case involves an effort by the Town of Waynesville (“the Town”) to have a Jeep seized and forfeited to the Town for use by the Waynesville Police Department. The superior court judge denied the “Motion for Seizure Order and Forfeiture” filed by the Town on the ground that petitioner lacked standing to bring the motion. We af[109]*109firm the ruling in part, reverse it in part, and remand the case to the superior court.

The Jeep at issue was allegedly used by Aimee Nicole Morgan to transport a stolen safe from a restaurant to another location in order to force it open and steal its contents. On 24 January 1996, Morgan pled guilty to aiding and abetting a felonious larceny.

On 2 February 1996, the Town of Waynesville filed a “Motion for Seizure Order and Forfeiture” pursuant to N.C. Gen. Stat. § 14-86.1 (1993). The motion was filed under the docket number of the criminal case in which judgment was rendered against Ms. Morgan. It states that Ms. Morgan owned the Jeep on the date of the offense (12 June 1995), that she currently owns the Jeep, and that she “keeps and maintains the property at or near 101 Eagle Gap Road, Waynesville.” The motion goes on to say that because the Jeep was used to convey stolen property worth more than $2,000, it is subject to seizure and forfeiture under G.S. 14-86.1.

The superior court denied petitioner’s motion in full. The court held that petitioner had no standing to request an order of forfeiture under G.S. 14-86.1. The trial judge’s view was that only the district attorney could petition for an order of forfeiture. The trial judge made no written conclusions about the request for an order authorizing seizure.

This appeal presents us with two distinct questions: (1) Who may petition for an order for seizure under G.S. 14-86.1?; and (2) Who may petition for an order of forfeiture under G.S. 14-86.1? We address the forfeiture question first.

The controlling statute in this case, G.S. 14-86.1, is found in Chapter 14 of the General Statutes, “Criminal Law,” Article 16, “Larceny.” The statute provides in relevant part,

All conveyances, including vehicles, watercraft or aircraft, used to unlawfully conceal, convey or transport property in violation of G.S. 14-71, 14-71.1, or 20-106, or used by any person in the commission of armed or common-law robbery, or used by any person in the commission of any larceny when the value of the property taken is more than two thousand dollars ($2,000) shall be subject to forfeiture as provided herein, except that:
[110]*110(6) The trial judge in the criminal proceeding which may subject the conveyance to forfeiture may order the seized conveyance returned to the owner if he finds forfeiture inappropriate. .. .

N.C. Gen. Stat. § 14-86.1(a) (1993) (emphasis added). Subsection (b) provides,

Any conveyance subject to forfeiture under this section may be seized by any law-enforcement officer upon process issued by any district or superior court having original jurisdiction over the offense except that seizure without such process may be made when:
(1) The seizure is incident to an arrest or subject to a search under a search warrant; or
(2) The property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding under this section.

N.C. Gen. Stat. § 14-86.1(b) (emphasis added). By the statute’s own terms, then, a forfeiture proceeding under G.S. 14-86.1 is a criminal proceeding.

The authority to prosecute criminal actions in the courts of North Carolina rests exclusively with the district attorneys of the State. N.C. Const. art. IV, § 18; N.C. Gen. Stat. § 7A-61 (1995); State v. Camacho, 329 N.C. 589, 593, 406 S.E.2d 868, 871 (1991); State v. Sturgill, 121 N.C. App. 629, 637-38, 469 S.E.2d 557, 562 (1996). The Town had no authority, therefore, to petition the Criminal Division of the Haywood County Superior Court for an order of forfeiture under G.S. 14-86.1.

Our conclusion that district attorneys alone may prosecute forfeiture proceedings under G.S. 14-86.1 is bolstered by other statutory provisions. Subsection (e) of G.S. 14-86.1 states in part,

All conveyances subject to forfeiture under the provisions of this section shall be forfeited pursuant to the procedures for forfeiture of conveyances used to conceal, convey, or transport intoxicating beverages found in G.S. 18B-504.

Section 18B-504 provides for the forfeiture of property, including vehicles, used to commit violations of the alcoholic beverage control laws of Chapter 18B (“ABC laws”). N.C. Gen. Stat. § 18B-504 (1995). When the owner or possessor of a conveyance subject to forfeiture is [111]*111found guilty of violating an ABC law, the presiding judge in the criminal proceeding must decide whether to order forfeiture of the property. N.C. Gen. Stat. § 18B-504(e)(l) (1995). The designation of the judge who presides at the criminal trial as the person who is to decide the forfeiture issue clearly indicates that the district attorney is to represent the State at the forfeiture hearing. Similarly, section 18B-504 expressly authorizes the district attorney to seek the forfeiture of property if the owner is unknown, or if the owner is known and has been charged with a crime but is unavailable for trial. See N.C. Gen. Stat. § 18B-504(i). These provisions, incorporated by reference into G.S. 14-86.1, indicate a plain legislative intent that only district attorneys are to prosecute forfeiture proceedings under G.S. 14-86.1.

Having decided that the Town had no standing to petition for an order for forfeiture under G.S. 14-86.1, we now examine whether it had standing to seek an order authorizing seizure of the Jeep.

We make two preliminary observations. First, contrary to what is implied in petitioner’s brief, the procedures for seizing a conveyance under G.S. 14-86.1 are not found in General Statutes section 18B-504; section 18B-504 contains only the procedures for forfeiture of conveyances under G.S. 14-86.1. See N.C. Gen. Stat. § 14-86.1(e). Second, we note that only “law-enforcement officers” are authorized to seize conveyances under G.S. 14-86.1. N.C. Gen. Stat. § 14-86.1(b). The Town of Waynesville is not a “law-enforcement officer” and thus has no authority to seize Ms. Morgan’s Jeep under G.S. 14-86.1.

The question before us, however, is not whether the Town has authority to seize Ms. Morgan’s Jeep, but whether it has standing to petition the superior court for an order authorizing seizure of the Jeep by law-enforcement officers. Subsection (b) of G.S. 14-86.1 lists the circumstances under which the seizure of a conveyance is permitted:

Any conveyance subject to forfeiture under this section may be seized by any law-enforcement officer upon process issued by any district or superior court having original jurisdiction over the offense except that seizure without such process may be made when:
(1) The seizure is incident to an arrest or subject to a search under a search warrant; or
[112]

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Related

State v. Sturgill
469 S.E.2d 557 (Court of Appeals of North Carolina, 1996)
State v. Camacho
406 S.E.2d 868 (Supreme Court of North Carolina, 1991)

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Bluebook (online)
505 S.E.2d 588, 131 N.C. App. 108, 1998 N.C. App. LEXIS 1241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-1990-red-cherokee-jeep-ncctapp-1998.