State v. Henderson

436 S.E.2d 209, 263 Ga. 508, 93 Fulton County D. Rep. 3968, 1993 Ga. LEXIS 790

• Court: Supreme Court of Georgia
• Decided: November 8, 1993
• Docket: S93G0044
• Status: Published

Opinions

Hunt, Presiding Justice.

We granted certiorari to the Court of Appeals in Henderson v. State, 205 Ga. App. 542 (422 SE2d 666) (1992) to determine whether the requirement in OCGA § 16-13-49 (o) (5) regarding the time for hearings in forfeiture proceedings against controlled substances is mandatory or directory.¹ The Court of Appeals held the statutory provision mandatory, reversing the trial court’s denial of the defendants’ motion to dismiss.² We affirm.

The district attorney brought an in rem condemnation proceeding against property seized in a drug raid, and Henderson and Hatcher, as owners or interest holders in the property, filed timely answers within 30 days after they had been served with the complaint. See OCGA § 16-13-49 (o) (3). The trial court held a hearing five months after service of the complaint, and Henderson and Hatcher moved to dismiss the proceeding because the hearing was not held within sixty days under OCGA § 16-13-49 (o) (5) which provides:

If an answer is filed, a hearing must be held within 60 days after service of the complaint unless continued for good cause and must be held by the court without a jury.

The trial court denied the motion and ordered that certain of the property be forfeited to the state. The Court of Appeals reversed.

Several rules of statutory construction are applicable. Because it is a special statutory proceeding, we are required to strictly construe the forfeiture statute. See Hill v. State, 178 Ga. App. 563, 565 (2) (343 SE2d 776) (1986); Lang v. State, 168 Ga. App. 693, 695 (4) (310 SE2d 276) (1983).³ In interpreting the statute, we look to the intent of the legislature and construe the statute to effect that intent. City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991). We are also required to give words, except those of art, their ordinary significance. Id.; OCGA § 1-3-1 (b).

The current forfeiture statute took effect on July 1, 1991, and there are few appellate decisions construing it. The paragraph under consideration has no counterpart in the previous statute. The 60-day time limit for hearings is a part of a new provision requiring that such hearings be held by a judge without a jury.⁴ This new provision states that where an answer has been filed, hearings “must” be held within 60 days of service of a complaint.

In examining the legislative intent behind the new statute, we note that, with regard to the predecessor statute, the Court of Appeals consistently has held the time limits contained therein to be mandatory. See, e.g., State of Ga. v. Vurgess, 182 Ga. App. 544, 546 (2) (356 SE2d 273) (1987) (construing prior OCGA § 16-13-49 (e) requiring that an answer be filed within 30 days of the filing of a condemnation proceeding, and, if no such answer is filed, the court “shall” order the disposition of the seized merchandize); State of Ga. v. Luke, 183 Ga. App. 182 (358 SE2d 272) (1987) and State of Ga. v. Waters, 173 Ga. App. 274, 275 (2) (326 SE2d 243) (1985) (construing former OCGA § 16-13-49 (e) which provided that the district attorney “shall” bring an action within 30 days of the receipt of notice of seizure). In enacting the new statute, although the legislature altered some of the time limits contained therein, the legislature did not choose to change the language regarding time limits to specify that those limits are directory rather than mandatory.⁵

As pointed out by the Court of Appeals, the plain meaning of “must” is a command, synonymous with “shall.” Henderson v. State, supra. See also Allmond v. State, 202 Ga. App. 902, 903 (415 SE2d 924) (1992); Hubbard v. State, 201 Ga. 213, 214 (1) (411 SE2d 44) (1991). See Ga., Fla. &c. R. Co. v. Sasser, 130 Ga. 394, 395 (60 SE 997) (1908); Birdsong & Sledge v. Brooks, 7 Ga. 88, 89 (1849); Alewine v. State, 103 Ga. App. 120, 122 (118 SE2d 499) (1961); Bass v. Doughty, 5 Ga. App. 458, 460 (63 SE 516) (1908).⁶ A mandatory construction of “must” as used in OCGA § 16-13-49 (o) (5) is consistent in context with the remainder of this paragraph which provides that the 60-day requirement may be “continued for good cause.” If the 60-day requirement were directory, rather than mandatory, there would be no need for a “good cause” continuance. Moreover, our construction of OCGA § 16-13-49 (o) (5) as mandatory, rather than directory, is consistent with the apparent purpose of that paragraph, which is to ensure a speedy resolution of contested forfeiture cases in the courts, as well as a speedy resolution of property rights. Henderson v. State, supra, 205 Ga. App. at 543. See also Allmond v. State, supra; Hubbard v. State, supra; see also Sanchez v. Family &c. Svcs., 237 Ga. 406, 410 (229 SE2d 66) (1976) construing a provision regarding a time limit for a hearing under the Juvenile Code (OCGA § 15-11-21 (c) (1)) to be mandatory notwithstanding the general rule to the contrary, because failure to comply would prejudice the parents’ rights to possession of the child.

Accordingly, because we agree with the Court of Appeals that the legislature used the word “must” in OCGA § 16-13-49 (o) (5) to mandate a hearing within 60 days after service of the complaint (unless continued for good cause),⁷ we affirm that court’s reversal of the trial court.

Judgment affirmed.

All the Justices concur, except Fletcher and Corley, JJ., who concur specially.

1 The same issue is raised in another case pending in this court, State v. Alford, _ Ga. — (Case No. S93G1303), on certiorari from Alford v. State, 208 Ga. App. 595 (431 SE2d ) (1993).

2 The state argues that Henderson and Hatcher waived any right to insist on strict compliance with OCGA § 16-13-49 (o) (5) because their answers were not in compliance with the provisions of OCGA § 16-13-49 (o) (3). The Court of Appeals did not address this issue, nor do we in this appeal. Of course, if no answer is filed, no hearing is required, and the court is required to order the disposition of the seized property. OCGA § 16-13-49 (o) (4). Obviously, the 60-day requirement is conditioned on the filing of a timely and sufficient answer.

3 The statute specifically provides that it must be liberally construed to effectuate its remedial purpose. OCGA § 16-13-49 (z). Although we construe this statute strictly, our holding in this case also comports with the remedial purposes of the statute. See infra.

4 In Swails v. State, 263 Ga. 276 (431 SE2d 101) (1993), we upheld the provision of the new statute regarding trials before a judge without a jury against an attack that the provision violated the federal and state constitutional rights to trial by jury.

5 E.g., the previous statute required that the district attorney “shall” file a condemnation proceeding within 30 days of his receipt of notice of seizure (prior OCGA § 16-13-49 (e)). The current statute, OCGA § 16-13-49 (h) (2), provides that a complaint for forfeiture “shall” be initiated within sixty days from the date of seizure; previous OCGA § 16-13-49 (e) required that the seizing officer “shall” report the fact of seizure to a district attorney within ten days; the current OCGA § 16-13-49 (h) (1) provides that the law enforcement officer “shall” report the fact of seizure to a district attorney within twenty days.

6 The state points to a line of cases which hold that where a statute directs the doing of a thing in a certain time, without negative words restraining the doing of that action, generally the time provision is directory, rather than mandatory, and failure to meet the time requirement will not render the action invalid if the action is performed outside the time limit. See, e.g., Hopping v. Cobb County Fair Assn., 222 Ga. 704, 705 (2) (152 SE2d 356) (1966); O’Neal v. Spencer, 203 Ga. 588 (2) (47 SE2d 646) (1948); Willcox v. Beechwood Band Mill Co., 166 Ga. 367 (143 SE 405) (1928); Lang v. State, 168 Ga. App. 693 (310 SE2d 276) (1983). However, that proposition has been specifically rejected in construing the time requirements in the previous forfeiture statute. State of Ga. v. Luke, supra. See also State of Ga. v. Vurgess, supra; State of Ga. v. Waters, supra.

7 Although a respondent may seek a continuance of a hearing, it is the duty of the state to obtain a continuance if it does not invoke a hearing within the 60-day period or otherwise avoid the necessity of the hearing, e.g., by obtaining a dismissal of an answer. Of course, the trial court may continue the hearing on its own, for good cause, without a motion by either party.