Kosel v. State ex rel. City of Largo

546 So. 2d 1128, 14 Fla. L. Weekly 1740, 1989 Fla. App. LEXIS 4094, 1989 WL 80707
CourtDistrict Court of Appeal of Florida
DecidedJuly 21, 1989
DocketNo. 88-02681
StatusPublished
Cited by3 cases

This text of 546 So. 2d 1128 (Kosel v. State ex rel. City of Largo) 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
Kosel v. State ex rel. City of Largo, 546 So. 2d 1128, 14 Fla. L. Weekly 1740, 1989 Fla. App. LEXIS 4094, 1989 WL 80707 (Fla. Ct. App. 1989).

Opinion

THREADGILL, Judge.

Vincent Kosel appeals the denial of his motion for summary judgment in a forfeiture action filed by the City of Largo. We have jurisdiction of this nonfinal order determining the right to immediate possession of property pursuant to rule 9.130(a)(3)(C)(ii), Florida Rules of Appellate Procedure. Because a court of competent jurisdiction had already ordered the return of some of the items listed in the forfeiture petition, and the appellant had timely raised the previous order as an affirmative defense, we find the motion for summary [1129]*1129judgment should have been granted as to those items. We therefore reverse.

On November 7, 1987, Largo city police officers executed a search warrant on a home in Pinellas County and seized narcotics, currency and other property, including that here at issue. The appellant was charged with several felony offenses on the basis of the narcotics found in the home, thereby subjecting the named items to the forfeiture provisions of section 932.-703, Florida Statutes (1987).

On February 22, 1988, the appellant pled guilty to the criminal charges pursuant to a plea agreement which included the condition that the items taken from him would be returned. After being informed by the assistant state attorney that no forfeiture proceeding had been instituted, the criminal court, Judge Luce presiding, accepted the appellant’s plea and ordered the return of the requested property. See § 933.14, Fla.Stat. (1987). A written order returning certain property, including $5,120 in currency, a tool box and tools, and a Tarus 9mm automatic pistol, was signed by Judge Luce on March 2, 1988, and a copy was furnished to the City of Largo, which took no action to appeal or intervene in the criminal proceedings.

Apparently unknown to those present at the plea hearing, the City of Largo had initiated this forfeiture action in the civil division of the same circuit three days earlier. On March 28, 1988, the civil court judge entered an order for the appellant to show cause why his property should not be forfeited. The appellant timely responded, denying that the property was subject to forfeiture and raising estoppel, based on the return order of the criminal court, as an affirmative defense. Subsequently, the appellant moved for summary judgment. On August 19, the civil court, Judge Case presiding, denied summary judgment and entered an order vacating the March 2 return order of the criminal court. It is this order that is before us.

The central issue presented is whether the untimely filing of a forfeiture action in the civil division divests the criminal court which issued the search warrant of authority to dispose of the property seized thereunder. Although it seems quite apparent from the transcript that the criminal court would not have returned the property had it been aware of the pending forfeiture, the validity of the court’s order depends on whether it had jurisdiction over the property at the time the plea was accepted and the order was issued.

It is well-established that where a criminal prosecution has begun, the criminal court acquires jurisdiction over any seized articles which have evidentiary value, and thus has authority to determine questions concerning ownership even after the conclusion of the underlying criminal prosecution. Garmire v. Red Lake, 265 So.2d 2 (Fla.1972); Sawyer v. Gable, 400 So.2d 992 at 995 (Fla. 3d DCA 1981). See also Adams v. Burns, 126 Fla. 685, 172 So. 75 (1936). As the supreme court stated in Garmire:

We do not believe the civil courts should be permitted, as here attempted, to cross over and intrude in criminal matters pending within the jurisdiction of the criminal courts....
[Cjriminal courts have inherent jurisdiction on proper application of claimants for such items and upon due notice to the state and others of interest to determine questions concerning the ownership as well as the appropriate time to release such items held in custodia legis by the criminal courts.

265 So.2d 2, 4-5.

Because the criminal court initially had jurisdiction to dispose of the property seized pursuant to its search warrant, we must consider how that authority might have been superceded. In denying summary judgment and vacating the criminal court order, the civil court relied upon that portion of section 932.703(1) which generally prohibits replevin or any other action for recovery of property subject to forfeiture.1

[1130]*1130The court does not, however, appear to have considered the 1985 amendment to section 932.703(1) which limits the prohibition to instances where forfeiture has been filed by the state within ninety days of the seizure. Ch. 85-316, § 1, 1985 Fla.Laws 1922. Here, the city did not initiate forfeiture proceedings until 104 days after the initial seizure.

Chapter 85-316 was enacted after the Fifth District Court of Appeal held unconstitutional that part of section 932.703(1), Florida Statutes (1983), which prohibited any action for recovery of seized property subject to forfeiture under the Florida Contraband Forfeiture Act, sections 932.701-932.704. Lamar v. Universal Supply, Inc., 452 So.2d 627 (Fla. 5th DCA 1984), rev’d, 479 So.2d 109 (Fla.1985). At the time the statute was amended, the fifth district decision was on appeal and pending before the Florida Supreme Court. See Staff of Fla.S.Comm. on Judiciary-Crim., CS/SB 658 (1985), Staff Analysis 1, (2d rev. May 27, 1985), (on file in state archives). Shortly after the effective date of the amendment, the supreme court rendered its decision in the Lamar appeal, reversing the fifth district and holding that due process was satisfied by the requirement in section 932.704(1) that the state attorney “promptly proceed” against the contraband. Lamar v. Universal Supply Co., Inc., 479 So.2d 109, 111 (Fla.1985).

In Lamar, the property owner had filed a replevin action seven days after the seizure. The supreme court found that the state’s failure to file before that time was not unreasonable and cited cases finding delays of three and six months to be reasonable. 479 So.2d at 110. The court did not delineate any specific time period that would satisfy the requirement that the state “promptly proceed” against the contraband, nor did it address the 1985 legislative amendment limiting the bar against actions for recovery to ninety days after the initial seizure. We appear to have before us a case of first impression regarding interpretation of the 1985 amendment.

The polestar of statutory construction is always legislative intent, Lowry v. Parole and Probation Comm’n, 473 So.2d 1248 (Fla.1985), and the plain language of the statute is the first consideration in divining intent, St. Petersburg Bank and Trust Co. v. Hamm, 414 So.2d 1071 (Fla.1982). Here, the title of the act states that the act authorizes actions for recovery “if forfeiture proceedings are not instituted within a specified period_” 1985 Fla.Laws 1922. We note that had the legislature intended to limit this provision to replevin actions, it could have so stated, thereby excluding actions such as that before us under the doctrine of statutory construction which holds that the mention of one thing implies exclusion of another. Powerhouse Condominium, Inc. v. Millman, 475 So.2d 674 (Fla.1985).

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Bluebook (online)
546 So. 2d 1128, 14 Fla. L. Weekly 1740, 1989 Fla. App. LEXIS 4094, 1989 WL 80707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kosel-v-state-ex-rel-city-of-largo-fladistctapp-1989.