Opinion
No. 2022 KW 0034.
09-16-2022
STATE of Louisiana v. Mitchell W. JACKSON.
THERIOT, J.
The defendant, Mitchell W. Jackson, was charged by bill of information with illegal carrying of a weapon while unlawfully in possession of a controlled dangerous substance (CDS) (oxycodone) (count I), a violation of La. R.S. 14:95(E); illegal carrying of a weapon while unlawfully in possession of a CDS (carisoprodol) (count II), a violation of La. R.S. 14:95(E); and possession with intent to distribute a CDS (oxycodone) (count III), a violation of La. R.S 40:967(A)(1). He pled not guilty on all counts. Prior to trial, the State dismissed all charges against the defendant.
Thereafter, the defendant moved for an expedited hearing on his motion and request for the return of seized property/firearms. Following a hearing, the district court rendered judgment denying the motion. The defendant thereafter filed a "notice" for the instant appeal, which was granted by the trial court. For the following reasons, we convert the appeal to an application for supervisory writs, and on procedural grounds, we deny the writ application.
FACTS
No testimony or evidence concerning the facts was presented at the hearing. The bill of information charged that the defendant committed counts I — III on February 11, 2015.
APPEALABILITY OF RULING
A motion for return of property filed pursuant to La. R.S. 15:41 is part and parcel of a criminal proceeding and is thus included within the jurisdiction of the criminal court presiding over or having presided over the criminal proceeding. In re Matter Under Investigation, 2007-1853 (La. 7/1/09), 15 So.3d 972, 984. In determining whether the offense is "triable by jury," the focus is on the charge, rather than the conviction returned. See State v. Norman, 2020-142 (La. App. 5th Cir. 12/30/20), 310 So.3d 287, 294, writ denied, 2021-00150 (La. 4/7/21), 313 So.3d 983 ("[e]ven though this case involves a misdemeanor conviction, we find that the matter is appealable because Defendant's charge as to count two was a felony that was `triable by a jury.'").
Counts I and II were punishable by a fine of not more than $10,000 and imprisonment at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence. La. R.S. 14:95(E) (prior to amendment by 2016 La. Acts. No. 543, § 1). Count III was punishable by imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of the sentence being without the benefit of parole, probation, or suspension of sentence, and a possible fine of not more than $50,000. La. R.S. 40:967(B)(4)(b) (prior to amendments by 2022 La. Acts. No. 671, § 1, 2018 La. Acts No. 677, § 1, & 2017 La. Acts No. 281, § 2). These offenses were all punishable by a fine "in excess of one thousand dollars or imprisonment for more than six months," and thus, were triable by jury. See La. Const. art. I, § 17 & La. C.Cr.P. art. 779.
The next issue is whether the judgment is a final judgment. See La. C.Cr.P. art. 912(A) ("[o]nly a final judgment or ruling is appealable."); see also La. C.Cr.P. art. 912(C) ("[t]he judgments or rulings from which the defendant may appeal include, but are not limited to: (1) A judgment which imposes sentence; [and] (2) A ruling upon a motion by the state declaring the present insanity of the defendant[.]"). The judgment does not impose a sentence upon the defendant or declare his present insanity. Thus, it is not final under Article 912.
The proper vehicle to seek review of the judgment in this matter is by application to this court for a writ of review. See La. C.Cr.P. art. 912.1(C)(1). The judgment was rendered on September 28, 2021. The defendant moved for an appeal that same day. Accordingly, since the motion for appeal was filed within the time delay for filing an application for supervisory writs, we will convert this appeal to an application for supervisory writs. See La. C.Cr.P. art. 912.1(C); State v. Houston, 2019-0615 (La. App. 1st Cir. 11/15/19), 291 So.3d 223, 225; see also Uniform Rules, Courts of Appeal, Rule 4-3.
We recognize that our brethren at the Fourth Circuit reached a different conclusion regarding appealability. See State v. Shihadea, 2014-1287 (La. App. 4th Cir. 6/3/15), 171 So.3d 1105, 1106 (wherein the court noted that it denied the property owner's writ seeking review of the denial of his motion for the return of his firearm and held that the property owner "needed to seek redress by an appeal rather than a writ of certiorari."). However, for the reasons expressed herein, we disagree with that court's pronouncement.
The State likewise challenged appealability of the instant matter by filing a motion to dismiss the appeal, but as we have converted the appeal to an application for supervisory review on our own motion, we deny the State's motion as moot.
DISCUSSION
In his brief to this court, the defendant raises three assignments of error. In his first assignment of error, the defendant contends the district court erred in denying his request for the return of his seized firearms under La. R.S. 15:41, La. R.S. 40:1798, and State v. Shihadea, 2014-1287 (La. App. 4th Cir. 6/3/15), 171 So.3d 1105, in violation of his due process rights guaranteed by La. Const. art. I, § 2 and U.S. Const. Amend. V. In his second assignment of error, the defendant contends the district court erred in applying the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989 (the Forfeiture Act), La. R.S. 40:2601, et seq., to the case at bar without the State having properly instituted a civil action to forfeit the property. In his third assignment of error, the defendant contends the district court erred in applying the Forfeiture Act to the case at bar without the State introducing any evidence to support a criminal or civil claim to forfeit the firearms.
The defendant filed his motion for the return of the seized property pursuant to La. R.S. 15:41. That statute provides, in part:
A. If there is a specific statute concerning the disposition of the seized property, the property shall be disposed of in accordance with the provisions thereof.
B. If there is no such specific statute, the following governs the disposition of property seized in connection with a criminal proceeding, which is not to be used as evidence or is no longer needed as evidence:
(1) The seized property shall be returned to the owner, unless a statute declares the property to be contraband, in which event the court shall order the property destroyed if the court determines that its destruction is in the public interest; otherwise, Paragraph (2) of this Section shall apply.
(2) If the seized property is contraband, and the court determines that it should not be destroyed, or if the owner of noncontraband property does not claim it within six months after its seizure, the court shall order:
(a) A sale of the property at a nonjudicial public sale or auction, if the court concludes that such a sale will probably result in a bid greater than the costs of the sale. The proceeds of the sale shall be administered by the court and used exclusively for the maintenance, renovation, preservation, or improvement of the court building, facilities, or records system.
(b) If the court concludes that the cost of a public sale would probably exceed the highest bid, the court may order the property transferred to a public or a nonprofit institution or destroyed or may make such other court ordered disposition as it deems appropriate.
C. Where the release of seized property is sought by a person claiming to be the owner, it shall be released only upon motion contradictorily with the clerk of court. In all other cases the court may either render an ex parte order for the disposition of the property as herein provided on motion of any interested person, or on its own motion, or the court may require a motion contradictorily with the apparent owner or the person in possession of the property at the time of the seizure.
The State opposed the motion, asserting that the Forfeiture Act governed the disposition of the seized property, see La. R.S. 15:41(A), and pursuant to the Forfeiture Act, the defendant was not entitled to the return of the property. The district court agreed, finding:
It wasn't illegal, because at the time the affidavit of probable cause was signed[,] there was a warrant saying that [the defendant] was in possession of these firearms with illegal drugs. So ... that's what he was arrested for. He had guns in his possession with those ... drugs.
But when he was actually arrested and taken into custody he had that in his possession. So he was charged with a crime that falls directly under this statute, [La. R.S.] 40:961.
And so, although his crime did not result in his conviction[,] he was still arrested pursuant to [La. R.S.] 40:961, et seq, according to Title 40:2603.
Through the Forfeiture Act, the Louisiana Legislature established a civil system of expressly delineated procedures, which allow the State to seize and have forfeited property that is related to, is a proceed from, facilitates, or is itself a violation of the Uniform Controlled Dangerous Substances Law, La. R.S. 40:961, et seq. State v. 2003 Infiniti G35 VIN No. JNKCV51E93M024167, 2009-1193 (La. 1/20/10), 27 So.3d 824, 828.
In the instant case, count III against the defendant charged he knowingly and intentionally possessed with the intent to distribute oxycodone, an offense punishable by confinement for more than one year under La. R.S. 40:961, et seq. See La. R.S. 40:967(B) (prior to amendment in 2017 and 2018). Accordingly, pursuant to La. R.S. 40:2603, the Forfeiture Act could apply in this case. The State, however, failed to introduce any evidence to establish that it properly initiated a forfeiture proceeding. The State argues the issue of whether or not it followed procedures for civil forfeiture was waived by the defendant "because the issue was neither presented to the trial court nor objected to at the motion hearing." We disagree.
The typical civil forfeiture action begins with a seizure of property and is followed by the filing of a forfeiture complaint and the prosecution of the government's claim. In many senses, the raison d'etre of civil forfeitures lies in their reduction of the government's burden for a successful prosecution. State v. Edwards, 2000-1246 (La. 6/1/01), 787 So.2d 981, 991.
The motion for expedited hearing and request for return of seized property, in pertinent part, set forth:
7.
The DA's office objected to the return of the firearms to [the defendant] stating that because [the defendant] was charged with an offense that related to drugs and firearms, he was not allowed to have the firearms returned.
. . .
9.
There is no legal basis for the DA's office to deny or delay the return of the seized property/firearms.
The court's ruling on the motion preserved for review the "legal basis for the [State] to deny or delay the return of the seized property/firearms," including whether or not the State complied with the Forfeiture Act. See La. C.Cr.P. art. 841(B) ("[t]he requirement of an objection shall not apply to the court's ruling on any written motion.").
The Forfeiture Act was inapplicable and therefore did not constitute a "specific statute concerning the disposition of the seized property" pursuant to La. R.S. 15:41(A). Moreover, the State failed to otherwise prove that the guns were contraband so as to restrict return of the property pursuant La. R.S. 15:41(B)(1). Louisiana Revised Statutes 40:1798 governs the disposal of firearms "which are lawfully seized by and forfeited to [the Louisiana Department of Public Safety and Corrections, office of the state police, the Louisiana Department of Wildlife and Fisheries, and each law enforcement agency of a political subdivision of the state]." La. R.S. 40:1798(A). "Forfeited" for purposes of the statute "means that the ownership of the firearm has been transferred to a law enforcement agency by a court order and that the firearm is not being held as evidence or for any purpose related to an investigation or prosecution of criminal activity." La. R.S. 40:1798(B)(3).
That provision states, in pertinent part, "The seized property shall be returned to the owner, unless a statute declares the property to be contraband...."
In the instant case, the record contains no evidence that the ownership of the firearms at issue has been transferred to a law enforcement agency by a court order. Accordingly, the disposition of the firearms at issue, property seized in connection with a criminal proceeding, and not to be used as evidence because the criminal proceedings had been dismissed, is governed by the provisions of La. R.S. 15:41(B). See Taiae v. City of Baton Rouge, 2000-0915 (La. App. 1st Cir. 6/22/01), 808 So.2d 677, 681 ("[t]he fact that Mr. Taiae was not charged with a crime herein indicates the money was `not used as evidence.' Therefore, La. R.S. 15:41(B) is applicable to the facts herein.").
While we agree that the State failed to prove that the weapons at issue were contraband under La. R.S. 40:1798 or to prove that it had properly invoked forfeiture proceedings under the Forfeiture Act to retain possession of the guns pursuant La. R.S. 15:41(A) or (B)(1), we find that the defendant has likewise failed to show that he has followed the proper procedure in seeking the return of his property. The court in Shihadea noted that it had denied an earlier application for review on procedural grounds as the person seeking return of his weapon "had not complied with the provisions of La. R.S. 15:41(C), which required a hearing `contradictorily with the clerk of court.' [Footnote omitted.]" Shihadea, 171 So.3d at 1106. While we agree with the defendant's assertions under assignments of error numbers two and three, the record does not reveal that the motion for return of seized property was tried "contradictorily with the clerk of court" in compliance with La. R.S. 15:41(C). Therefore, we conclude that the defendant's assertions under assignment of error number one should be rejected on procedural grounds. Accordingly, we find the instant converted writ should be denied. See Id.
APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRITS; WRIT APPLICATION DENIED; STATE'S MOTION TO DISMISS DENIED AS MOOT.
Hester, J. concurs.