Opinion
90-3368-Z-5; CA A70408
Argued and submitted June 10, 1992
Affirmed in part; appeal dismissed in part February 3, 1993
Appeal from Circuit Court, Jackson County.
Mitchell Karaman, Judge.
Michael Jewett, Medford, argued the cause for appellants. With him on the brief was Jacobson, Jewett Thierolf, P.C., Medford.
Georgia L. Daniels, Assistant County Counsel, Medford, argued the cause for respondent. With her on the brief was Arminda J. Brown, Jackson County Counsel, Medford.
De MUNIZ, J.
Affirmed as to Geronimo Alvarez; appeal dismissed as to Maria Alvarez.
Claimants, Geronimo and Maria Alvarez, appeal from a civil forfeiture judgment. They assign error to the court's denial of their motion to set aside the judgment.
Claimants are married and reside in California. Geronimo was stopped by police while driving a borrowed car on I-5 near Talent, Oregon. Police searched the car and found a small quantity of cocaine in a gum wrapper in the ashtray. Geronimo was also in possession of $19,300 in cash, and the police seized it. He denied that the cash was drug money and told the police that he had earned the money working at construction sites. A police report prepared in connection with the case indicated that Geronimo was married and resided in California. Neither his wife's name nor her address was listed in the report.
Geronimo was personally served with a "Notice to Potential Claimant" when the police seized the money. An appropriate notice of the pending forfeiture of the money was published in the Medford Mail newspaper. Geronimo did not file a timely claim with forfeiture counsel. Plaintiff proceeded under the summary procedures authorized in Oregon Laws 1989, chapter 791, section 6, and obtained a judgment of civil forfeiture on October 15, 1990. See Multnomah County v. One 1984 Chevrolet Corvette, 115 Or. App. 276, 837 P.2d 559 (1992). On March 15, 1991, claimants filed a joint motion to set aside the judgment. Their motion was denied.
In denying the motion, the court found:
"1. Claimant Geronimo Alvarez was legally married to Maria Alvarez in 1989 in the State of California.
"2. Claimant Geronimo Alvarez and Maria Alvarez live in California.
"3. Claimant Geronimo Alvarez has lived in the United States since he was a few days old. Claimant Geronimo Alvarez completed the 12th grade and attended community college.
"4. At the time the officers questioned claimant Geronimo Alvarez, he stated he had earned the money working at construction sites. Claimant Geronimo Alvarez never stated to police the money was earned by his wife.
"5. A box in the police reports indicated claimant Geronimo Alvarez was married. The police report also indicated Mr. Alvarez lives in California.
"6. Plaintiff Jackson County did not know Geronimo Alvarez's wife's name or whereabouts.
"7. Plaintiff served Geronimo Alvarez personally with notice of intent to seize. Plaintiff published notice of seizure in accordance with HB 2282 Sec 6 (1)."
As an initial matter, plaintiff contends that "[Maria] is not a party to this proceeding." We treat that contention as a motion to dismiss her as a party to this appeal and allow it. A forfeiture judgment obtained under the summary procedure authorized in Or Laws 1989, chapter 791, section 6, adjudicates only the "interest of a person who engages in prohibited conduct." Maria was not a party to the underlying judgment, and it therefore did not adjudicate any interest that she may have in the money. Whatever claim she may have to the money could not have been asserted as a ground to set aside the judgment. She may not appeal from the judgment. ORS 19.020; Multnomah County v. $6,381 in U.S. Currency, 104 Or. App. 654, 802 P.2d 705 (1990), rev den 311 Or. 643 (1991).
Geronimo had proper notice of the pending forfeiture, but did not file a timely claim. There was no error in denying his motion to set aside the judgment. City of Portland v. $4,345 U.S. Currency, 118 Or. App. 72, 845 P.2d 1301 (1993).
Affirmed as to Geronimo Alvarez; appeal dismissed as to Maria Alvarez.