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One (1) 2011 Chevrolet Silverado 1500 v. Panola County Narcotics Task Force

Court of Appeals of Mississippi

November 25, 2014

ONE (1) 2011 CHEVROLET SILVERADO 1500, KELLY BOWEN WILSON AND STEPHEN ELLIOTT PERGANDE, APPELLANTS
v.
PANOLA COUNTY NARCOTICS TASK FORCE, A DIVISION OF PANOLA COUNTY SHERIFF'S DEPARTMENT, APPELLEE

COURT FROM WHICH APPEALED: PANOLA COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 05/09/2013. TRIAL JUDGE: HON. JAMES MCCLURE III. TRIAL COURT DISPOSITION: DENIED MOTION FOR RECONSIDERATION OF FORFEITURE.

FOR APPELLANTS: THOMAS ALAN WOMBLE.

FOR APPELLEE: DARRIN JAY WESTFAUL.

ROBERTS, J., FOR THE COURT. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

Page 968

NATURE OF THE CASE: CIVIL - OTHER

EN BANC.

ROBERTS, J.

[¶1] Kelly Bowen Wilson and her son, Stephen Elliott Pergande, appeal the Panola County Circuit Court's judgment finding that their jointly owned vehicle was subject to forfeiture after Pergande pled guilty to conspiracy to possess cocaine. Pursuant to a plea agreement, Pergande's guilty plea was deferred, and he was placed on nonadjudicated probation for three years. Wilson and Pergande claim that forfeiture of the vehicle, a 2011 Chevrolet Silverado pickup truck, is an excessive fine for the crime that Pergande

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committed. We agree. Accordingly, we reverse the circuit court's judgment and render a judgment in favor of Wilson and Pergande.

FACTS AND PROCEDURAL HISTORY

[¶2] This appeal centers on the forfeiture of a truck, which was a gift to Pergande from his grandfather, Martin Bowen. Wilson and Pergande, both residents of Texas, were listed as the owners on the truck's title, but it was primarily used by Pergande, a student at the University of Texas.

[¶3] During April 2012, Pergande was twenty years old. He and his friend, Christopher Collinge, were driving from Austin, Texas, to Nashville, Tennessee. They planned to meet some friends in Batesville, Mississippi, but Pergande and Collinge got lost in Batesville. While Pergande and Collinge drove through a neighborhood, someone called 911 and reported what the caller perceived to be suspicious behavior. While Collinge was driving the pickup, he attempted to turn around by driving across the median of I-55, but the truck became stuck. Deputy Brad Pickett of the Panola County Sheriff's Department responded and found Pergande and Collinge on the side of the interstate. They were both outside of the truck when Deputy Pickett arrived. Deputy Pickett later described Pergande and Collinge's behavior as " erratic." Other law enforcement officers arrived at the scene, and eventually they discovered approximately 8.3 grams of cocaine.[1] Pergande and Collinge each had some identified amount in their pockets, and a trace amount was recovered from the floorboard of the truck. Authorities arrested Pergande and Collinge. They also seized the truck.

[¶4] Pergande and Collinge were each indicted and charged with conspiracy to possess cocaine and possession of between two and ten grams of cocaine. Pergande and the prosecution reached a plea agreement. In October 2012, Pergande fulfilled his end of the bargain and pled guilty to conspiracy to possess cocaine. The prosecution recommended that the circuit court withhold acceptance of Pergande's guilty plea as a first offender, and enter a nonadjudication order. The circuit court followed the prosecution's recommendation. Additionally, the circuit court placed Pergande on nonadjudicated probation for three years, fined him $500, and ordered him to pay $125 in restitution.

[¶5] After Pergande pled guilty, Panola County filed a forfeiture complaint and sought the truck, which was valued at approximately $30,000. There were no liens on it. Wilson contested the forfeiture. She argued that forfeiture was inappropriate because she was an " innocent owner." That is, Wilson argued that the truck should not be subject to forfeiture because she was a joint owner of the truck, and she did not know that her minor son, Pergande, had left Texas, or that he and Collinge had cocaine in the truck. Wilson and Pergande also claimed that forfeiture of the truck was grossly disproportionate to the offense that led to its seizure. However, the circuit court found no merit to their defenses, and awarded the truck to Panola County. Wilson and Pergande appeal, and reiterate their arguments. Because we find merit to their argument that forfeiture of the truck is grossly disproportionate to the crime that led to its seizure, we reverse the circuit court's judgment and render a judgment in their favor. It

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follows that Wilson's innocent-owner issue is moot.

ANALYSIS

EXCESSIVE FINE


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