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HENRY CLAY LEWIS v. STATE OF MISSISSIPPI

DECEMBER 11, 1985

HENRY CLAY LEWIS
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, SULLIVAN and ANDERSON

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Henry Clay Lewis appeals from an order of the Circuit Court of Jackson County forfeiting money, in the sum of thirteen hundred twenty dollars ($1,320.00) cash, seized from his residence apartment in Pascagoula, Mississippi. He assigns two errors in the lower court trial.

On November 17, 1982, officers of the Mississippi Bureau of Narcotics and the Pascagoula Police Department arrested appellant at his residence in Brooks Manor Apartments after an exchange of gunfire in which appellant and an officer of the Pascagoula Police Department were wounded. The apartment was searched by the officers, pursuant to a state search warrant, and they found approximately fifty (50) grams

 of marijuana and three hundred dollars ($300.00) in cash, which were seized and held by the Narcotics Bureau as evidence.

 Agents of the Alcohol, Tobacco and Firearms Division of the United States Treasury Department were advised by the Pascagoula police of a possible Federal Firearm Statute violation by appellant, and appellant's apartment was searched by those agents pursuant to a Federal search warrant. Approximately 117.8 grams of marijuana were found by them in a brown jacket in appellant's closet. They also found one thousand twenty dollars ($1,020.00) cash in a black jacket near where the marijuana was found. The contraband and the cash were seized by those officers and turned over to the Mississippi Bureau of Narcotics.

 On January 7, 1983, appellant was indicted on four counts of possession of a controlled substance with intent to distribute same, and on April 25, 1983, appellant entered pleas of guilty to said counts and was sentenced on each count to serve three (3) years as an habitual offender without parole, the sentences to run concurrently.

 I. - II.

 DID THE LOWER COURT ERR IN GRANTING APPELLEE'S PETITION IN SPITE OF ITS FINDING THAT THE PETITION FOR FORFEITURE WAS NOT PROMPTLY FILED?

 DID THE LOWER COURT ERR IN GRANTING THE PETITION DESPITE NOT SETTING A TIME FOR HEARING ON THE PETITION WITHIN THIRTY (30) DAYS AFTER AN ANSWER WAS FILED AS REQUIRED BY LAW?

 On May 4, 1984, almost eighteen (18) months after the money was seized, the Mississippi Bureau of Narcotics filed a petition for forfeiture of the $1,320.00 cash, to which appellant filed an unverified answer on June 1, 1984. The hearing was held October 5, 1984, and the lower court ordered the seized property forfeited to the Mississippi Bureau of Narcotics. Appellant sought dismissal of the petition for forfeiture on the ground that it was not promptly filed as required by Mississippi Code Annotated 41-29-177 (1972), as amended. That section provides the following:

 (1) When any property, other than a controlled substance, raw material, or paraphernalia, is seized under the Uniform Controlled Substances law, proceedings under this section shall be instituted promptly.

 (2) Petition for forfeiture shall be filed promptly in the name of the State of Mississippi with the clerk of the circuit court in the county in which the seizure is made . . . [remainder of statute omitted].

 We have not been cited to a Mississippi case construing the statute. In 1983, the Florida District Court of Appeals held that a six-month delay between seizure of alcoholic beverages and commencement of civil forfeiture proceedings did not violate the statutory requirement governing civil proceedings that the State promptly proceed against contraband after its seizure. However, the court held the reasonableness of the six-month delay hinges upon its purposes. During such period of time, defendants were being prosecuted on the criminal charge, which distinguishes that case from the case sub judice. The Florida Court said:

 Since important property rights are compromised by seizure, the burden of proceeding promptly or of justifying delay must necessarily be upon the state, and that burden is not carried by a simple ...


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