Russell v. Wanicka

524 So. 2d 1077, 13 Fla. L. Weekly 988, 1988 Fla. App. LEXIS 1667, 1988 WL 36062
CourtDistrict Court of Appeal of Florida
DecidedApril 22, 1988
DocketNo. 87-1480
StatusPublished
Cited by3 cases

This text of 524 So. 2d 1077 (Russell v. Wanicka) 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
Russell v. Wanicka, 524 So. 2d 1077, 13 Fla. L. Weekly 988, 1988 Fla. App. LEXIS 1667, 1988 WL 36062 (Fla. Ct. App. 1988).

Opinion

RYDER, Acting Chief Judge.

In this appeal, we are called upon to decide two interesting and novel questions concerning the effect of the Florida Juvenile Justice Act upon a forfeiture proceeding under sections 932.701 — 932.704, Florida Statutes (1985).

The Sheriff of Lee County filed in the circuit court below a “Petition for Rule to Show Cause and for Final Judgment and Order of Forfeiture,” alleging that the vehicle named in the style of this case was used in the commission of a felony.

An affidavit was attached to the petition. The facts indicate that the subject vehicle, a BMW, was co-owned by appellant Lawrence Russell and his son, appellant James Russell. Prior to the latter’s eighteenth birthday, he was driving the BMW during school hours on a school day with a companion. The vehicle entered a parking lot, the passenger exited, entered a Corvette, the property of another, parked in the lot and removed a radar detector. The passenger returned to and reentered the BMW, and the two minors fled the scene. However, they were observed, followed and, shortly thereafter, arrested. The radar detector was found in the BMW, and thereafter, the sheriff seized the vehicle.

The trial court issued a rule to show cause, and appellants filed an answer to the petition. The answer contained two affirmative defenses: Lawrence E. Russell and Sharon D. Russell have an ownership interest in the vehicle and had no knowledge that the vehicle would be used in criminal conduct; their son was a juvenile on the day the incident occurred “and was therefore legally incompetent and incapable of committing a felony.” The second affirmative defense was also the basis of a motion for summary judgment filed by appellants.

After a hearing, the trial court denied appellants’ motion for summary judgment and stated it was inclined to grant summary judgment in favor of appellee. Appellant father filed an affidavit in opposition to a summary judgment motion by appel-lee. The affidavit indicated that the father paid the purchase price for the vehicle; that the request for title transfer he sent in asked that the title be listed “LAWRENCE E. RUSSELL and/or JAMES E. RUSSELL;” that his intention was to establish and retain ownership “in the conjunctive;” that title was to be transferred to his son’s name alone after his son repaid the purchase price; that no money had been paid by the son; and that he had no knowledge of his son’s illegal activities.

After a hearing on the matter, the trial court granted summary judgment in favor of appellee and entered a final order of forfeiture. This appeal of that order argues two points: (1) forfeiture was inappropriate under the statute because the commission of a felony is required and a juvenile is legally unable to commit a felony under the Florida Juvenile Justice Act and (2) the type of ownership interests of the father and son was a genuine issue of material fact precluding summary judgment.

[1079]*1079Appellants’ first argument, briefly stated, is that, under the facts of this case, the vehicle is subject to forfeiture if it “has been or is actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony.” § 932.701(2)(e), Fla.Stat. (1985). The term “felony” is defined in section 775.-08(1), Florida Statutes (1985), as “any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or imprisonment in a state penitentiary.” As a minor, none of the dispositional alternatives upon an adjudication of delinquency include death or imprisonment in a state penitentiary. See § 39.11, Fla.Stat. (1985). Therefore (the argument goes), even if the act committed by a minor would have been a felony if committed by an adult, when committed by a minor, it is not a felony and that fact precludes forfeiture under section 932.701(2)(e), Florida Statutes (1985).

Appellants attempt to bolster their argument with cases holding that forfeiture statutes are to be strictly construed. They also argue that as a policy matter, juveniles should not be subject to the harsh provisions of the forfeiture act because juveniles are a special and distinct class and should be afforded unique treatment.

Appellee answers that the provisions of the Florida Juvenile Justice Act do not change the nature or seriousness of the act committed, but provide dispositional alternatives for the juvenile offender that evince society’s desire to rehabilitate rather than punish. We agree with appellee.

No prior case law could be located on this precise point. However, a close review of related cases and statutes supports our holding that an act committed by a juvenile that would be classified as a felony if committed by an adult qualifies as a “felony” under section 932.701(2)(e).

First, looking at how Florida courts have defined the parameters of the forfeiture statute, we note that a forfeiture proceeding under the statute is civil in nature, being a quasi in rem action against the property. State v. Cobb, 440 So.2d 65, 67 (Fla. 1st DCA 1983). The disposition of the related criminal proceeding is neither relevant nor material to the forfeiture proceeding. In re Forfeiture of a 1981 Ford Automobile, VIN # ABP32F8BU154691, 432 So.2d 732, 733 (Fla. 4th DCA), review denied, 441 So.2d 631 (Fla.1983). City of Tallahassee v. One Yellow 1979 Fiat, 414 So.2d 1100, 1101-02 (Fla. 1st DCA 1982). It follows from the above that since the outcome of the criminal proceeding has no effect upon (and is in fact inadmissible in) the forfeiture proceeding, whether the forfeiture will lie turns on the nature and degree of seriousness of the act committed. If we were to decide that the propriety of forfeiture should be based on what the system (either the criminal justice system or the juvenile justice system) decides to do with (or to) that person once the act has been done, then forfeiture would be subject to the whims of each defendant’s fortune. For example, if forfeiture relied upon the disposition of the criminal proceeding, any defendant charged with a felony that might subject him to forfeiture proceedings who successfully plea bargains the charge to a misdemeanor would be able to avoid forfeiture. The independence of a forfeiture proceeding from a criminal proceeding, apparent in the statutes and maintained by the courts, militates against appellants’ argument.

Second, the nature of Florida’s juvenile justice system supports our holding. The statutory definition of a “child who has committed a delinquent act” is “a child who, pursuant to the provisions of this chapter, is found by a court to have committed a felony, a misdemeanor, contempt of court, or a violation of a local penal ordinance and whose case has not been prosecuted as an adult case....” § 39.01(9), Fla.Stat. (1985). A minor who has committed an act that would subject him to a delinquency hearing can be transferred for criminal prosecution under section 39.09(2), Florida Statutes (1985). Even though section 39.10(4), Florida Statutes (1985), provides that “an adjudication by a court that a child has committed a delinquent act shall not be deemed a conviction ...,” the United States Supreme Court and [1080]*1080the Supreme Court of Florida have held that jeopardy attaches in delinquency proceedings, precluding a subsequent criminal prosecution for the same offense. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed. 2d 346 (1975);

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524 So. 2d 1077, 13 Fla. L. Weekly 988, 1988 Fla. App. LEXIS 1667, 1988 WL 36062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-wanicka-fladistctapp-1988.