Prince George's County v. Vieira

667 A.2d 898, 340 Md. 651, 1995 Md. LEXIS 161
CourtCourt of Appeals of Maryland
DecidedNovember 29, 1995
DocketNo. 128
StatusPublished
Cited by45 cases

This text of 667 A.2d 898 (Prince George's County v. Vieira) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prince George's County v. Vieira, 667 A.2d 898, 340 Md. 651, 1995 Md. LEXIS 161 (Md. 1995).

Opinions

BELL, Judge.

At issue in this case is the meaning of Maryland Code (1957, 1992 Repl.Vol., 1994 Cum.Supp.), Art. 27, § 297(d)(2)®. More particularly, we are asked to determine whether the reference in that subsection to “show cause order” is to a proposed order or one actually executed by a judge. Contrary to the ruling of the Circuit Court for Prince George’s County, the Court of Special Appeals held that it was the latter. Vieira v. Prince George’s County, 101 Md.App. 220, 645 A.2d 639 (1995). Aggrieved, Prince George’s County, the petitioner, sought review of that decision by this Court. Recognizing the importance of the issue, we granted its petition for writ of certiorari. We now affirm the judgment of the intermediate appellate court.

I.

Anthony Wilfred Vieira, the respondent, was stopped by the Prince George’s County police for running a red light on Maryland Route 197 at the Baltimore-Washington Parkway overpass. He was arrested when the officer seized drug paraphernalia he observed in the respondent’s car. A search of the car uncovered additional paraphernalia and $7,850.00 in cash, which also were seized. The respondent entered a guilty plea to a charge of possession of drug paraphernalia. Pursuant to a plea agreement, he was placed on probation before judgment pursuant to Article 27, § 641.

Eighty-nine days after the respondent was sentenced, on June 3, 1992, the petitioner filed in the Circuit Court for Prince George’s County, a Complaint For Forfeiture of Cur[654]*654rency. The complaint consisted of four pages. Although the pages of the complaint are numbered three through six, the June 3 docket entry designates the complaint’s page numbers as one through four. On the fourth page, separately captioned, is an affidavit by the County Director of Finance. The next docket entry is dated June 18, 1992, 15 days after the first entry. It states, “show cause order (Graydon McKee, III), F.D. CC given to the Atty for service. BJB.” The show cause order referred to in the docket entry consists of two pages and is dated June 17, 1992, 103 days after the final disposition of the respondent’s criminal case.1 Although on the second page of that order is the number “2”, the docket entry reflects that the pages of the document are “5-6.”

The respondent was served with the complaint and affidavit and a show cause order on October 16, 1992.2 Having timely filed an answer to the complaint, the respondent subsequently filed “Defendant’s Motion (Petition) for Return of Seized Currency,” with Memorandum in Support of the Motion, on December 9, 1992. Although he requested a hearing, the motion was denied without one, as was his motion for reconsideration. Following a trial on the merits, the circuit court ordered the currency forfeited to the petitioner. The respondent thereupon noted his appeal to the Court of Special Appeals, which, as we have seen, reversed the circuit court judgment.

II.

The Court of Special Appeals held that, and we granted certiorari to determine whether, the Legislature intended the forfeiture petition for money or currency, to include the [655]*655filing of an executed show cause order, as opposed to a proposed one, along with the complaint and affidavit, within ninety days of the date of final disposition of the criminal proceeding.3 The petitioner recognizes that § 297(d)(2)(i) requires that “the applications [for forfeiture of money or currency contraband] shall be by complaint, affidavit and show cause order.” It argues, however, that, in light of the plain meaning of the statute and the fact that the complaint and the affidavit provide a basis on which a judge would execute a show cause order, the Legislature intended that a proposed, not an executed, show cause order, be filed with the complaint and the affidavit.

The petitioner also argues that the proposed show cause order will not be executed until and unless the judge is satisfied that the complaint and affidavit make a prima facie case for forfeiture and signs the proposed order. This is so, it suggests, because an application for forfeiture of money or currency is “an application for judicial decree that would approve or disapprove the seizure and grant or deny the forfeiture.” (Quoting Bozman v. Office of Finance of Baltimore County, 296 Md. 492, 499, 463 A.2d 832, 836 (1983)). The petitioner therefore asserts, “[p]lain logic dictates that an executed show cause order which is in effect, the judicial decree cannot be part of an application for the judicial decree ... [and] therefore, an ‘application for judicial decree’ requires merely a proposed show cause order.” Petitioner’s [656]*656brief at 8. Moreover, adopting the Vieira majority’s analogy of the executed show cause order to a summons, the petitioner asserts that “it does not follow that the General Assembly intended that the show cause order be judicially executed prior to the ninety-day filing deadline.” Petitioner’s brief at 10. Indeed, it points out that a summons issues only after the complaint is filed; thus, it is the complaint, not the issuance of a summons, that tolls limitations.

Not surprisingly, the respondent is of the opposite opinion, contending that in order for a forfeiting authority to comply with § 297(d)(2) it must file an executed show cause order, not merely a proposed show cause order, contemporaneously with the complaint and the affidavit.

III.

Money is subject to forfeiture under our statute. See § 297(b)(6).4 Moreover, the money which is the subject of these proceedings was properly seized by the petitioner. Sec[657]*657tíon 297(d)(1)® permits the seizure of property (defined to include money, see § 297(a)(ll)(i)4.), subject to forfeiture if the seizure “is incident to an arrest.”

The procedure for instituting forfeiture proceedings for money or currency is addressed in § 297(d)(2), which provides:

(2) In the event of seizure pursuant to paragraph (l)(iii) and (iv) of this subsection, proceedings under subsection (f) of this section shall be instituted promptly, except all proceedings relating to money or currency, that shall be instituted within 90 days from the date of final disposition of criminal proceedings that arise out of Article 27, §§ 276 through 302, inclusive.
(i) All applications for the forfeiture of money or currency contraband shall be made by the director of finance of Baltimore City, the county treasurer or appropriate county finance officer, municipal treasurer, or the Attorney General. The applications shall be by complaint, affidavit and show cause order and shall be filed in the District Court or circuit court of the County.
(ii) The complaint, affidavit and show cause order shall be served in the first instance pursuant to Maryland Rule 2-121 or Maryland Rule 3-121(a), and thereafter, the summons having been returned non est, the director of Finance of Baltimore City, county treasurer or appropriate county finance officer, municipal treasurer, or Attorney General may proceed pursuant to Maryland Rule 2-122 or Maryland 3-121(b) or (c).

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Bluebook (online)
667 A.2d 898, 340 Md. 651, 1995 Md. LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prince-georges-county-v-vieira-md-1995.