         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2013-CP-00121-COA

1984 CHEVY CAMARO AND $265.00 U.S.                                            APPELLANT
CURRENCY

v.

LAWRENCE COUNTY SHERIFF’S                                                       APPELLEE
DEPARTMENT

DATE OF JUDGMENT:                           12/20/2012
TRIAL JUDGE:                                HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED:                  LAWRENCE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     ERIC DE’JUAN JONES (PRO SE)
ATTORNEY FOR APPELLEE:                      MORRIS SWEATT SR.
NATURE OF THE CASE:                         CIVIL - OTHER
TRIAL COURT DISPOSITION:                    APPELLANT’S PETITION TO CONTEST
                                            FORFEITURE DISMISSED WITH
                                            PREJUDICE
DISPOSITION:                                REVERSED AND REMANDED: 10/07/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., MAXWELL AND FAIR, JJ.

       FAIR, J., FOR THE COURT:

¶1.    On May 18, 2002, Eric Jones was arrested for possession of 6.2 grams of cocaine. On

May 31, 2002, the Lawrence County Sheriff’s Department (the County) gave him formal

notice of its intention to forfeit his 1984 Chevy Camaro and $265 in cash seized at the time

of his arrest. Jones timely filed a petition contesting the forfeiture with the court. However,

he failed to serve a copy of the petition on the County as required by the applicable forfeiture

statute. See Miss. Code Ann. § 41-29-176(5) (Rev. 2013).

¶2.    Thereafter, and for the ensuing ten years, Jones filed various motions pursuing a trial
on his contest of the forfeiture of his property. He is finally before this Court claiming denial

of his due process rights after the circuit court’s dismissal of his petition without a hearing

and without presentation of any evidence justifying a forfeiture on the part of the County.

We reverse and remand for further proceedings.

                           THE COURSE OF PROCEEDINGS

¶3.    Shortly after the filing of Jones’s petition, the court set the case for trial. Witness

subpoenas were issued, some at Jones’s request. Several were for County officials, and the

others were for law enforcement officers. The scheduled trial was postponed, and on May

21, 2003, the court entered an order staying the forfeiture proceeding pending the disposition

of Jones’s indictment. Shortly thereafter, on June 25, 2003, Jones pled guilty to possession

of a controlled substance and was sentenced to serve sixteen years in the custody of the

Mississippi Department of Corrections, with ten years suspended and five years of post-

release supervision (PRS).

¶4.    There is scant evidence in the record regarding the County’s pursuit of the action after

2003. For reasons unknown, no forfeiture proceeding occurred after Jones’s guilty plea; the

stay order remained in effect from its entry on May 21, 2003, until the court dismissed

Jones’s petition on December 20, 2012.

¶5.    In June 2004, Jones filed a motion for a preliminary injunction and temporary

restraining order, restating his interest in the seized property. The record is silent as to how

the motion was handled. In its brief, the County claims that it was unaware that Jones had

contested the forfeiture and, as a result, had filed a “declaration of forfeiture” in 2002. There

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is no such declaration in the record. The Camaro was reportedly sold for $350 at auction in

2006, though the sale is asserted only in argument, and again there is no evidence in the

record of such a sale.

¶6.    In 2009, Jones attempted to appeal the matter to the Mississippi Supreme Court, but

the appeal was dismissed for “lack of an appealable judgment,” since no hearing had been

held, nor judgment entered.

¶7.    On April 14, 2011, Jones filed a motion in Lawrence County requesting his case be

set on the trial calendar. Jones further stated he was entitled to a speedy trial. The court set

the case for December 5, 2011. The hearing did not take place, although the reason it was

not held is unclear from the record.

¶8.    On March 13, 2012, Jones wrote a letter to the Fifteenth Circuit Court District,

restating his request for a hearing on his forfeiture proceeding as well as transportation to the

hearing. On May 7, 2012, the court notified Jones that the case had been set for May by

order but because notice of that setting had not been mailed to Jones, it was being reset for

December 2012. The court further informed Jones that he had a right to retain counsel, but

that the court had no obligation to transport him to his civil proceeding.

¶9.    On December 10, 2012, the case was called in open court. Jones was not present.

Consequently, the County moved to dismiss Jones’s contest of the forfeiture based on his

failure to appear. The court granted the motion and dismissed the case with prejudice. The

transcript of proceedings shows the County offered to present testimony of two witnesses,

who were present in court, and other evidence, if required. The court stated that a trial with

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presentation of evidence was not necessary because Jones failed to appear and that an order

in the nature of a default judgment was appropriate.

¶10.   Jones appeals pro se and raises several issues. We reduce them to the following: (1)

whether Jones was denied due process by a nine-year delay of the forfeiture hearing, and (2)

whether Jones was denied due process through the court’s subsequent dismissal of his

petition without a hearing. Finding that the circuit court erred, we reverse and remand to the

circuit court for proceedings consistent with this opinion.

                               STANDARD OF REVIEW

¶11.   “The appropriate standard of review in forfeiture cases is the familiar substantial

evidence/clearly erroneous test.” Galloway v. City of New Albany, 735 So. 2d 407, 410 (¶15)

(Miss. 1999) (citation omitted). We “will not disturb a circuit court’s findings unless it has

applied an erroneous legal standard to decide the question of fact.” Id. We review questions

of law de novo.

                                       DISCUSSION

       1. Speedy Trial

¶12.   Jones argues that his right to a speedy trial was violated by a nine-year delay.

Pursuant to Mississippi Code Annotated section 41-29-177(1) (Rev. 2013):

       Except as otherwise provided in Section 41-29-176, Mississippi Code of 1972,
       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 within thirty (30) days from
       the date of seizure or the subject property shall be immediately returned to the
       party from whom seized.


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¶13.   The County timely noticed Jones of its intention for forfeiture after Jones was

arrested. And Jones timely filed his petition to contest the forfeiture. However, the court

stayed the proceeding in 2003 pending disposition of Jones’s criminal charges — and under

that stay no hearing took place until 2012. “[I]t is not unusual for civil forfeiture actions to

be continued until after the underlying criminal proceedings are concluded. Nevertheless,

a continued forfeiture action must be timely concluded, and an unreasonable delay will

constitute a denial of due process.” One 1970 Mercury Cougar v. Tunica Cnty., 936 So. 2d

988, 992 (¶15) (Miss. Ct. App. 2006) (internal citations omitted).

¶14.   “Both the United States and Mississippi Constitutions guarantee a defendant’s right

to a speedy trial which, according to the United States Supreme Court, applies in civil

forfeiture proceedings.” One 1970 Mercury Cougar v. Tunica Cnty., 115 So. 3d 792, 795-96

(¶18) (Miss. 2013) (internal citations omitted). When a defendant claims he was denied the

right to a speedy trial, we analyze the claim using the following four factors announced in

Barker v. Wingo: “Length of delay, the reason for the delay, the defendant’s assertion of his

right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972). These

factors should be weighed according to the facts of the case, and no one factor is outcome-

determinative. Thomas v. State, 48 So. 3d 460, 475 (¶42) (Miss. 2010) (citing Price v. State,

898 So. 2d 641, 647 (¶11) (Miss. 2005)). Further, other circumstances may be considered

in the balancing process in addition to the Barker factors. Id. (citing Jefferson v. State, 818

So. 2d 1099, 1106 (¶11) (Miss. 2002)).

¶15.   Here, the length of delay is substantial. The court stayed the civil proceeding until

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after Jones’s criminal proceeding. Jones entered a guilty plea in June 2003. There is no

explanation in the record as to why no hearing was held until December 2012, nine years and

six months later. The record shows Jones actively pursued his right to contest the forfeiture

proceeding as soon as his criminal proceedings ended. He asserted his right to a speedy trial

in April 2011. Jones also states he has been prejudiced by the delay, although he provides

no support for this claim.

¶16.     At a new trial, the parties may present a record that would allow analysis by this Court

under the Barker standards. The County will have an opportunity to explain its idleness

regarding the proceeding and its basis for disposing of the property before the 2012 hearing.

Jones will also be afforded the opportunity to explain what prejudice he suffered from the

delay.

         2. Dismissal of Jones’s Petition

¶17.     Jones further claims that, having denied him a speedy trial, the court thereafter

violated his due process rights when it dismissed his petition with prejudice without a

hearing. Specifically, Jones asserts that the County’s failure to establish the validity of the

forfeiture at the hearing constituted an unlawful taking of his property.

¶18.     The Fourteenth Amendment to the U.S. Constitution and Article Three, Section

Fourteen of the Mississippi Constitution prohibit deprivation of property without due process

of law. See U.S. Const. amend. XIV; Miss. Const. art. 3, § 14. In Dusenbery v. United

States, 534 U.S. 161, 122 (2002), the United States Supreme Court addressed due process

requirements in forfeiture cases when a citizen’s property is seized by the government.

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       The Due Process Clause of the Fifth Amendment prohibits the United States,
       as the Due Process Clause of the Fourteenth Amendment prohibits the States,
       from depriving any person of property without “due process of law.” From
       these “cryptic and abstract words,” we have determined that individuals whose
       property interests are at stake are entitled to “notice and an opportunity to be
       heard.”

Id. at 167 (quoting United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993)).

The record shows that Jones was afforded minimum due process. The court notified Jones

of the hearing and provided him the opportunity for a hearing. He failed to take any action

and provided no evidence by way of an affidavit or other means for consideration by the

court from the time of his receipt of notice in May until the case was called up on the

December trial setting date.

¶19.   Problematic, however, is the court’s summary dismissal of Jones’s petition for failure

to attend court and prosecute. “Where, as in the case sub judice, an owner of property files

a verified answer denying that property is subject to forfeiture, the burden is on the State to

prove to the contrary.” 1994 Mercury Cougar v. Tishomingo Cnty., 970 So. 2d 744, 748

(¶10) (Miss. Ct. App. 2007) (quotation omitted)) . The County claims on appeal that, because

it did not receive a copy of Jones’s contest, it did not have the burden of proving the

forfeiture was lawful. We are not persuaded by this argument. Even if Jones failed to serve

the County with a copy of his petition, the record shows the County was notified that Jones

had filed his petition with court. The County further participated in the contest by issuing

witness subpoenas to individuals involved in the forfeiture. We find the involvement in the

contest prohibits the County from making such a claim on appeal.


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¶20.   There is no evidence in the record indicating the County took any action to ensure a

prompt hearing in accordance with the statute. But nine years later, on the day of the

hearing, the County announced it was prepared to proceed with presentation of evidence,

including witnesses involved in the seizure of the vehicle, the money, and the drugs. Rather

than present that evidence, the County moved to dismiss the case based on Jones’s absence.

The court granted the motion. Thereafter, the court issued an order dismissing Jones’s

petition with prejudice for failure to prosecute.

¶21.   The judge erred in classifying Jones as the plaintiff in this action and therefore

improperly dismissed Jones’s petition with prejudice for failure to prosecute. The County

provided Jones its notice of intent to pursue an administrative forfeiture unless Jones objected

within thirty days. Jones filed his objection within that time. Therefore, the County has

been “put to its proof” and must show by a preponderance of the evidence that Jones’s

property should be forfeited, assuming that the consideration of the Barker factors does not

require dismissal of the County’s claim for the vehicle and the money. See Miss. Code. Ann.

§ 41-29-179(2) (Rev. 2013). And, if the court does hold a forfeiture hearing, it should

employ the four-element proportionality test adopted by the Mississippi Supreme Court in

One (1) Charter Arms, Bulldog 44 Special v. State ex rel. Moore, 721 So. 2d 620, 624-625

(¶19) (Miss. 1998):

       (1)    The nexus between the offense and the property and the extent of the
              property’s role in the offense;

       (2)    The role and culpability of the owner;


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      (3)    The possibility of separating the offending property from the remainder;
             and

      (4)    Whether, after a review of all relevant facts, the forfeiture divests the
             owner of property which has a value that is grossly disproportionate to
             the crime or grossly disproportionate to the culpability of the owner.

For the foregoing reasons, we reverse the circuit court’s decision, and remand for

proceedings consistent with this opinion.

¶22. THE JUDGMENT OF THE CIRCUIT COURT OF LAWRENCE COUNTY IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS AND
JAMES, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION.             CARLTON, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION.




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