State v. Albritton

610 So. 2d 209, 1992 WL 364397
CourtLouisiana Court of Appeal
DecidedDecember 9, 1992
Docket91-1335
StatusPublished
Cited by16 cases

This text of 610 So. 2d 209 (State v. Albritton) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Albritton, 610 So. 2d 209, 1992 WL 364397 (La. Ct. App. 1992).

Opinion

610 So.2d 209 (1992)

STATE of Louisiana, Plaintiff-Appellee,
v.
Pamela C. ALBRITTON and Jerome August, Defendants-Appellants.

No. 91-1335.

Court of Appeal of Louisiana, Third Circuit.

December 9, 1992.

*210 Bennett R. LaPoint, Jennings, for plaintiff-appellee.

Daniel F. Becnel, Jr., Reserve, for defendants-appellants.

Before: LABORDE and THIBODEAUX, JJ., and CULPEPPER[1], J. Pro Tem.

LABORDE, Judge.

This case involves the seizure and forfeiture of $5,530.00 from defendants, Jerome August and Pamela Albritton pursuant to La.R.S. 40:2612. Defendants appealed alleging the forfeiture was improper for various reasons. Finding no merit in their four assignments of error, we affirm.

FACTS

This case arises out of circumstances leading to the seizure and forfeiture of certain items belonging to defendants pursuant to La.R.S. 40:2612. The facts relating to this forfeiture began on May 10, 1991 when Officer Chester Kowalski of the Jefferson Davis Parish Sheriff's Office stopped a vehicle on Interstate 10 for an expired license plate. Three persons were in the car and all gave conflicting statements concerning their travel. In addition, both August, the driver, and Albritton, the owner, appeared very nervous in demeanor. Because the conflicting stories and the defendant's demeanor aroused suspicion in Officer Kowalski, he inquired of August whether there were any drugs, guns, or large sums of U.S. currency in the car. August admitted there was between three and five thousand dollars in the car. Officer Kowalski then obtained permission from Albritton to search the car, but no money was found. However, two motorola beepers were discovered by the officer which are known among law enforcement personnel to be commonly used by narcotic traffickers. Officer Kowalski also found a small scale within the vehicle, and consequently summoned a certified K-9 unit. The K-9 made two positive alerts on Albritton's purse. A search of Albritton's purse revealed $5,530.00 in small denominations. When questioned about the money, the defendants *211 once again had conflicting stories. A criminal history check revealed an arrest of Albritton in Tangipahoa Parish for possession of over two ounces of crack cocaine. August also had a felony cocaine drug arrest in 1990 in the same area, and Albritton was out on bond at the time of the stop for possession of cocaine. Furthermore, information received from law enforcement officers in Tangipahoa Parish advised the Jefferson Davis Parish authorities that both Albritton and August were known to be heavily involved in crack cocaine trafficking.

As a result of this traffic stop, the Jefferson Davis Parish Sheriff's office seized the currency and the two beepers based on the belief that they were being used or were intended to be used to facilitate the acquisition of illegal narcotics in violation of La.R.S. 40:967. The defendants received a Notice of Pending Forfeiture which they answered. The state then filed a rule to test the sufficiency of the bond filed with the answer, and on the date of the hearing, the court rendered a judgment on the rule striking the bond and the answer from the suit record. The state then obtained a preliminary default and ultimately, a default judgment against defendants. Defendants then appealed asserting four assignments of error.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In their first two assignments of error, appellants argue it was error for the trial court to rule the bond which they posted was unacceptable and to strike their answer and enter judgment against them without notification or a chance to rectify any errors contained in the bond.

Under La.R.S. 40:2612(E), the claimants in an in rem proceeding and forfeiture action shall file an answer accompanied by a bond to the court which shall be approved by the district court. Furthermore under the provisions of La.R.S. 40:2611(K), all proceedings under the Louisiana Forfeiture Statute shall be governed by the provision of the Louisiana Code of Civil Procedure. Therefore, the articles pertaining to bonds and judicial proceedings in Louisiana Code of Civil Procedure Articles 5121 et seq. are applicable. Under the Provisions of La.C.C.P. art. 5123, the sufficiency of a security bond may be tested by a rule to show cause. In this proceeding, the solvency of the surety may be tested and if the court is not satisfied with the solvency of the surety, the bond may be held deficient and the attempted action or relief supported by the bond may likewise be stricken. Furthermore, the word, "shall" as used in 40:2612(E) is mandatory and not permissive. Therefore, failure to comply with the bond requirements is detrimental to the claimants' position, and if the bond is found deficient, the trial court may strike his answer from the forfeiture proceedings. The trial court also has discretion to accept or reject the bond. In this case, the purported bond filed by the claimants was merely an affidavit executed by the claimant, Pamela Albritton, as surety and the claimant, Jerome August, as principal asserting that they were financially able to pay the cost. Defendants argue a bond should not be stricken merely because there may be mistakes in formalities. However, this was neither a cash bond or a bond furnished by a surety company recognized by the trial court. It was merely an affidavit attesting to defendants' solvency. Such an affidavit does not satisfy the requirement of the forfeiture statute. See, State of Louisiana v. Walker, 597 So.2d 484 (La.App.1st Cir.1992).

Finally, the claimants had a chance to prove the solvency of the surety on the trial of the rule under La.C.C.P. art. 5123. However, neither the claimants nor their attorney were present at the hearing on the rule to show cause despite being given adequate notice and personal service of the rule and the court date on which the rule was to be heard. Therefore, defendants should not now be allowed to allege the trial court erred in determining the solvency of this bond.

As to defendants' argument that they were not notified of the insufficiency of the bond and given a chance to rectify it, La.C.C.P. art. 1913 only requires notification *212 of a default judgment not personally served or the signing of a final judgment. La.C.C.P. art. 1913 does not require notification of an interlocutory judgment. Therefore, defendants were not entitled to a notice of judgment on the rule to show cause striking the answer and bond from the record.

Even if notice of judgment would have been required under La.C.C.P. art. 1913, the only adverse effect of failing to give notice is that the delays for a new trial or an appeal do not begin to run. See, La.C.C.P. art. 1974. Therefore, the only defect, if any, created by failure to give notice of a judgment was cured by the defendants in these proceedings by timely filing their appeal. Accordingly, appellants' first two assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER THREE

In this assignment of error, defendants argue La.R.S. 40:2601 et seq. is unconstitutional since these statutes are used to deprive appellants of their property without due process of law. This issue is not properly before this court. In Lemire v. New Orleans Public Service, Inc., 458 So.2d 1308 (La.1984), the Louisiana Supreme Court stated:

"The only assertions initially made by plaintiff in his response to the S & WB's application in the Court of Appeal and in his assignment of error in the writ application to this Court was that the trial judge correctly determined that he should follow La.C.C.P. art.

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Cite This Page — Counsel Stack

Bluebook (online)
610 So. 2d 209, 1992 WL 364397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-albritton-lactapp-1992.