02-15: Forfeiture Adversarial Hearing - Strict TImelines
Case: Chuck v. In re forfeiture of $380,000.00, 27 FLW D2140, 3rd DCA

Date: October 11, 2002

FACTS: As part of an ongoing money laundering investigation, Homestead Police Department (HPD) seized $380,000.00 from Wayne Chuck. Respondent (Chuck) wrote HPD and requested an adversarial preliminary hearing. HPD immediately filed a pleading with the court asking that a preliminary hearing be scheduled within 10 days or as soon as practicable. This request, made on November 28, 2001, was in accordance with the forfeiture statute. The court set the hearing for December 17th. Chuck moved to have the forfeiture proceeding dismissed because the hearing did not take place within 10 days of HPD receiving his request for an adversarial preliminary hearing. The judge denied Chuck’s motion.

RULING: Incredibly, the appellate court reversed and ruled that the motion to dismiss the forfeiture should have been granted. The court recognized that HPD did everything it could to make sure the hearing took place within 10 days. But they chastised the judge for setting the hearing 19 days after HPD filed its petition, despite the fact that he was in a jury trial and could not schedule the hearing any sooner. So because the judge was unable to conduct the preliminary hearing within 10 days as stated by statute, Chuck got to keep his $380,000.00.

NOTE: A motion for rehearing is pending, but for the time being, the case stands. This is not just a “judge” problem. First of all, remember that the 10-day period starts to run when the request for a hearing is received by the seizing agency. Secondly, a judge is not assigned the case (and therefore cannot schedule a hearing) until the seizing agency files a petition for forfeiture. However, a petition cannot be filed until the seizing officer or agent provides the attorney filing the case with a sworn affidavit. Therefore, it is imperative that the affidavit should be prepared as soon as property is seized in expectation of the owner asking for a hearing. Seizing officers or agents should not wait until the request is actually made before preparing the affidavit since any delay in getting the affidavit to the RLA cuts into the 10-day period. Once the request for hearing is made, the attorney representing the agency should seek a hearing within the time frame, making it an "emergency hearing" if need-be, citing to this case as the grounds for the expedited handling of the issue.

Steve Brady
Regional Legal Advisor
Florida Department of Law Enforcement
Orlando Regional Operations Center

Officers should consult with their agency legal advisors to confirm the interpretation provided in this Update and to determine to what extent the case discussed will impact their activities.

For Further Information Contact:
Steve Brady
Regional Legal Advisor
Florida Department of Law Enforcement
Orlando Regional Operations Center