State v. Walls

ROSALYN B. BELL, Judge. On October 17,1988, Anne Arundel County police officers arrested appellee John W. Walls for suspected violations of the controlled dangerous substance provisions of Md.Code Ann., Art. 27, §§ 276-302 (1957, 1987 Repl.Vol., 1991 Cum. Supp.). At the time they arrested Walls, police officers seized $1,680 in cash from him.

Walls was charged with possession of cocaine with intent to distribute, simple possession, and conspiracy to violate the controlled dangerous substance laws. After Walls waived a jury trial, the trial judge found him not guilty of possession with intent to distribute and possession, but found him guilty of conspiracy. With respect to the cash seized from Walls at the time of his arrest, the trial judge specifically credited a witness for Walls who testified that she had paid Walls $1,680 for a refurbished pool table the day before he was arrested. 1 ³⁰³ The trial judge sentenced Walls to a two-year prison term, of which all but 60 days was suspended, and two years of supervised probation. Walls appealed his conviction to this Court.

We affirmed in an unreported per curiam opinion, Walls v. State, No. 1750, September Term 1989, filed 6-28-90. Up to this point, Walls’s case was a simple and uncomplicated criminal case. But there remained the question of the money seized from Walls by the Anne Arundel County police department. Under Md.Code Ann., Art. 27, § 297(d)(2), Anne Arundel County was required to file a forfeiture petition within 90 days of “final disposition” of the criminal proceedings.

For reasons unknown, Anne Arundel County made no such filing in this case. From this point on, what should have been a relatively simple case became a nightmare of procedural missteps and errors by everyone involved. Article 27, § 297(d)(3)(i) provides: “If proceedings relating to money or currency are not instituted by the State or a political subdivision within the 90-day period, the money or currency seized under this section, upon petition by the defendant, shall be returned to the defendant.” Section 297(d)(8)(i) does not define whether the “petition by the defendant” need be filed in a separate civil case, or may be filed in the criminal case. Believing that the criminal court had jurisdiction over his petition, and apparently seeking to place the petition before the same trial judge who believed his alibi as to the money once before, Walls, on January 24, 1991, filed his petition for return of the money in the criminal case. ³⁰⁴ Article 27, § 297(b)(6) provides that title to money or currency seized as the result of a drug arrest shall immediately vest in the jurisdiction in which the money or currency was seized.

Thus, at the time Walls filed his petition, Anne Arundel County had possession and title of the money seized from Walls. Nevertheless, Walls provided no notice of his petition to County officials. In response to Walls’s petition, the State filed a written response in which it asserted several defenses. First, it argued that the statute of limitations barred Walls’s petition.

Second, it argued that Anne Arundel County was a necessary party to the proceedings over the seized money. Third, the State argued that Walls’s petition was barred because Anne Arundel County had released the money to the federal government for federal forfeiture proceedings. Fourth, the State argued that the criminal court did not have jurisdiction to hear Walls’s petition because forfeiture is a civil matter. On February 25, 1991, the parties appeared for a hearing in the Circuit Court for Anne Arundel County, before the same trial judge who heard Walls’s criminal charges.

The State concentrated its argument on its contention that Anne Arundel County no longer had the money because it had released the funds to the federal government, failing to address either the notice or jurisdiction issues raised in its written response to Walls’s petition. The trial judge found as a fact that there was no evidence upon which Anne Arundel County could have legally turned over the money seized from Walls to the federal government. At the completion of the hearing, implicitly ruling that the criminal court had jurisdiction over the subject matter of the petition, the trial judge ruled that Walls was entitled to the return of his money. The State has appealed the trial court’s judgment in favor of Walls, contending solely that the criminal court did not have jurisdiction to hear Walls’s petition for return of the seized money.

Despite this contention, the State based its ³⁰⁵ right to appeal on Md.Cts. & Jud.Proc.Code Ann., § 12-302(c) (1974, 1989 RepLVol.), which provides the State a right of appeal in certain criminal cases. Rule 8-502(a)(l) requires that an appellant’s brief be filed within 40 days following filing of the record. The record in this case was filed on May 24, 1991. The State’s brief was not filed until July 30, 1991, 67 days later.

Rule 8-504(a)(4) requires that the parties make reference to specific pages of the record extract or transcript in making their assertions. There are no such page references in the State’s brief. Rule 8-504(b) requires that an appellant in a criminal case file an appendix containing pertinent portions of the trial judge’s instructions or opinion “that deals with points raised by the appellant on appeal.” The State’s brief contains no appendix. Rule 1-323 requires that any pleading in a Maryland court be accompanied by a certificate of service.

No certificate of service appears in either the briefs or the record. Under normal circumstances, resolution of this tangled procedural web would be relatively straightforward. The State’s conduct in this case would be dispositive, in that it constitutes waiver. Under the circumstances of this case, however, where the issue is one of subject matter jurisdiction, waiver does not apply.

Jones v. Jones, 259 Md. 336, 342 , 270 A.2d 126 (1970). Jurisdiction over the subject matter cannot be conferred by consent of the parties, and may be raised for the first time by either party on appeal, or by the reviewing court sua sponte. Harford County v. Schultz, 280 Md. 77, 80 , 371 A.2d 428 (1977); State v. McCray, 267 Md. 111, 126 , 297 A.2d 265 (1972); Mayor of Annapolis v. Hartge, 38 Md.App. 629, 633-634 , 382 A.2d 345 (1978). Despite the errors committed by the State at virtually every level of this case, we agree with its argument that the criminal court was without jurisdiction to hear Walls’s petition for return of his money.

It has long been held that forfeiture is a civil in rent proceeding against ³⁰⁶ property, unconnected with any criminal proceedings against the owner or holder of the property. State v. One 1980 Harley Davidson Motorcycle VIN # 9G3593950, 303 Md. 154 ,160 n. 5, 492 A.2d 896 (1985); Director of Finance, Prince George’s County v. Cole, 296 Md. 607, 620 , 465 A.2d 450 (1983) 2 ; Gatewood v. State, 264 Md. 301, 304-305 , 285 A.2d 623 (1972); State v. Greer, 263 Md. 692, 694 , 284 A.2d 233 (1971); Prince George’s County v. Blue Bird Cab Co., 263 Md. 655, 659 , 284 A.2d 203 (1971); One 1983 Chevrolet Van Serial No. IGCCG15D8D104615 v. State, 67 Md.App. 485, 488 , 508 A.2d 503 , aff'd, 309 Md. 327 , 524 A.2d 51 (1987); Allied Bail Bonds v. State, 66 Md.App. 754, 756 , 505 A.2d 918 (1986); One 1983 Toyota v. State, 63 Md.App. 208, 209 , 492 A.2d 643 , cert. denied, 304 Md. 299 , 498 A.2d 1185 (1985). Both Greer and Gatewood are of particular significance here. Greer was arrested and charged with violating the controlled dangerous substance laws, and his mother’s car was impounded.

Mrs. Greer filed an ex parte motion, in her son’s criminal case, for return of the car. The trial court granted the motion. Greer, 263 Md. at 693-694 , 284 A.2d 233 . In reversing the trial court’s order, the Court of Appeals set forth three reasons for its decision, at least two of which are applicable in this case.

First, the Court of Appeals held that “[fjorfeiture, unless specifically provided otherwise by statute, is a civil in rem proceeding, separate from any criminal action and it is of little significance whether there is a criminal conviction.” Because Walls’s basis for return of the money seized from him was Art. 27, § 297(d)(3)(h), and because § 297 sets forth the statutory scheme for forfeitures, it is clear that Walls’s petition in this case should have been filed in a separate civil proceeding. ³⁰⁷ The second point raised by the Court of Appeals in Greer is also applicable here: “The second ground whence error springs concerns naming the State of Maryland as the sole respondent in this controversy. Article 27, § 297(c) [with respect to money or currency, now Art. 27, § 297(b)(6)] provides that: ‘Property taken or detained under this section shall be deemed to be in the custody of the person who seized said property ... ’ (emphasis added). This is amplified in § (d) which states: ‘Whenever property is forfeited under this subheading, the political subdivision in which such property was seized, or, if the property was seized by State authorities, the State may ... ’ dispose of it according to the provisions of the statute. Here, the Montgomery County Police seized the car and according to the statute the County, not the State, has custody of that vehicle and authority to control its disposition.

Montgomery County therefore is the only necessary party to this action.” Greer, 263 Md. at 694 , 284 A.2d 233 . Similarly, in this case, the necessary party was Anne Arundel County, whose police officers seized the money from Walls when they arrested him on the drug charges. In his petition, Walls did not name Anne Arundel County as a respondent, nor did he provide notice to the County. In Gatewood , the Court of Appeals, relying on Greer and Blue Bird Cab, supra, held that the criminal court lacked jurisdiction to decide forfeiture issues: “Here, the Criminal