Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 79A-828 and former O.C.G.A. § 16-13-49 are included in the annotations for this Code section.

Purpose of former O.C.G.A. § 16-13-49 was: (1) the prompt disposition of property subject to forfeiture under the statute; and (2) the protection of property interests of innocent owners as defined by the statute. Yoder v. State, 211 Ga. App. 226, 438 S.E.2d 226 (1993) (decided under former O.C.G.A. § 16-13-49).

Time requirement is a requirement for the benefit and protection of property owners. Turner v. State, 234 Ga. App. 878, 508 S.E.2d 223 (1998) (decided under former O.C.G.A. § 16-13-49).

Purpose of the mandatory time requirement is to ensure a speedy resolution of contested forfeiture cases in the courts as well as a speedy resolution of property rights. Turner v. State, 234 Ga. App. 878, 508 S.E.2d 223 (1998) (decided under former O.C.G.A. § 16-13-49).

Former O.C.G.A. § 16-13-49 was to be construed as directory rather than mandatory. Lang v. State, 168 Ga. App. 693, 310 S.E.2d 276 (1983); Hill v. State, 178 Ga. App. 563, 343 S.E.2d 776 (1986) (decided under former O.C.G.A. § 16-13-49).

Former O.C.G.A. § 16-13-49 was directory, and substantial compliance was sufficient. State v. Jackson, 197 Ga. App. 619, 399 S.E.2d 88 (1990) (decided under former O.C.G.A. § 16-13-49).

Strict construction.

- Because it is a special statutory proceeding, the forfeiture statute is strictly construed. State v. Henderson, 263 Ga. 508, 436 S.E.2d 209 (1993) (decided under former O.C.G.A. § 16-13-49).

Liberal construction.

- Former O.C.G.A. § 16-13-49 was to be liberally construed to effectuate its remedial purposes. GMAC v. State of Ga., 268 Ga. App. 473, 602 S.E.2d 235 (2004).

Construction of former O.C.G.A.

§ 16-13-49(i) and (n). - Construing former O.C.G.A. § 16-13-49(i) and (n) in pari materia, the subsections were susceptible of but one reasonable construction; namely, that the district attorney shall give notice of the seizure; that the district attorney may serve the notice upon the owner by certified mail; and that, if the owner of the property desired to file a claim, the owner must do so within 30 days of the date of the second publication of the notice; otherwise, the property is forfeited. In any event, the 30-day period in which to file a claim plainly began to run from the date of the second publication. Weaver v. State, 299 Ga. App. 718, 683 S.E.2d 361 (2009), cert. denied, No. S10C0024, 2010 Ga. LEXIS 128 (Ga. 2010) (decided under former O.C.G.A. § 16-13-49).

Venue.

- In a forfeiture proceeding, testimony that a seized vehicle was in the custody of the Lowndes County Sheriff's Department in Lowndes County, Georgia, was sufficient to prove venue because, under former O.C.G.A. § 16-13-49(c)(2), venue was proper in any county where the forfeited property was located or would be during the pendency of the action. Turner v. State of Ga., 265 Ga. App. 40, 592 S.E.2d 864 (2004) (decided under former O.C.G.A. § 16-13-49).

Complaint sufficient.

- When the state, by amendment, included a verification, stated that the property was seized during the execution of a search warrant on a residence in a particular town, identified the police force acting as custodian of the items, stated the property was in the jurisdiction of a particular court within the county, and stated that the defendant drove the truck to the place of seizure and had filed a claim to it, thus inferentially identifying the defendant as the owner of the property, the complaint was properly held not to be deficient. Eaves v. State, 236 Ga. App. 279, 511 S.E.2d 621 (1999) (decided under former O.C.G.A. § 16-13-49).

Because the forfeiture statute declared as contraband property that was, directly or indirectly, used or intended for use in any manner to facilitate a drug violation, the complaint made out a prima facie case for civil forfeiture of the property as contraband; the complaint alleged that items were seized in an investigation involving the conspiracy to traffic cocaine and marijuana, which were violations of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq. Arreola-Soto v. State of Ga., 314 Ga. App. 165, 723 S.E.2d 482 (2012), cert. denied, No. S12C1048, 2012 Ga. LEXIS 593 (Ga. 2012).

Applicability of default judgment statute.

- Former O.C.G.A. § 16-13-49 provided a special statutory proceeding to which default was not applicable; therefore, the default judgment statute (O.C.G.A. § 9-11-55) did not apply to the forfeiture proceedings under former § 16-13-49. Hubbard v. State, 201 Ga. App. 213, 411 S.E.2d 44, cert. denied, 201 Ga. App. 904, 411 S.E.2d 44 (1991); Turner v. State, 213 Ga. App. 309, 444 S.E.2d 372 (1994) (decided under former O.C.G.A. § 16-13-49).

Provision of O.C.G.A. § 9-11-55, relating to default judgments, was not applicable to the special statutory procedure created by former O.C.G.A. § 16-13-49, and thus did not apply to the forfeiture complaints against money and jewelry found in the plaintiff's possession. Ford v. State, 235 Ga. App. 755, 509 S.E.2d 734 (1998) (decided under former O.C.G.A. § 16-13-49).

Government's interest vests when property used in criminal act.

- When property is subject to forfeiture for violation of the law, title vests absolutely in the government on the date of the illegal act. English v. State, 202 Ga. App. 751, 415 S.E.2d 659 (1992) (decided under former O.C.G.A. § 16-13-49).

Payment of fine from money in custodia legis not a forfeiture.

- Trial court possesses the inherent power to enter an order directing that money in custodia legis be used to pay a defendant's fine, and such order did not result in a forfeiture. Ward v. State, 195 Ga. App. 166, 393 S.E.2d 21 (1990) (decided under former O.C.G.A. § 16-13-49).

In rem proceeding.

- Condemnation forfeiture is an in rem proceeding rather than an in personam action, and it is jurisdiction over the property rather than the owner that is essential. Lang v. State, 168 Ga. App. 693, 310 S.E.2d 276 (1983) (decided under former O.C.G.A. § 16-13-49).

Forfeiture is an in rem proceeding. Hill v. State, 178 Ga. App. 563, 343 S.E.2d 776 (1986) (decided under former O.C.G.A. § 16-13-49).

In rem civil forfeiture proceeding under former O.C.G.A. § 16-13-49 did not require a conviction against the property owner be proved. Orange v. State of Ga., 319 Ga. App. 516, 736 S.E.2d 477 (2013).

Actual sale was not necessary to support forfeiture under former O.C.G.A. § 16-13-49(e), overruling Carr v. State, 212 Ga. App. 36, 441 S.E.2d 85 (1994). The state does need, however, to show a strong nexus between the property and the alleged violation, such as where the property in question is being used to grow a large amount of marijuana for sale, even though no actual sale takes place. Rabern v. State, 221 Ga. App. 874, 473 S.E.2d 547 (1996), remanded, 231 Ga. App. 84, 497 S.E.2d 631 (1998) (decided under former O.C.G.A. § 16-13-49).

Vehicle is subject to forfeiture: (1) when it is used by its owner to facilitate the sale of controlled substances; or (2) when used by an operator to facilitate the sale of controlled substances with the owner's knowledge or consent. State v. Croom, 168 Ga. App. 145, 308 S.E.2d 427 (1983) (decided under former O.C.G.A. § 16-13-49).

Defendant's vehicle was subject to forfeiture when there was evidence to support a finding that cocaine found on the ground next to the vehicle came from the truck and that the vehicle was contraband. Hinton v. State, 224 Ga. App. 49, 479 S.E.2d 424 (1996) (decided under former O.C.G.A. § 16-13-49).

Evidence that the defendant drove the vehicle to an apartment to participate in prohibited drug activity and that the defendant intended to leave the apartment in the same manner supported a determination that the vehicle was used or was intended to be used, directly or indirectly, to facilitate a violation of the Controlled Substances Act, O.C.G.A. § 16-13-20 et seq. Bettis v. State, 228 Ga. App. 120, 491 S.E.2d 155 (1997) (decided under former O.C.G.A. § 16-13-49).

Trial court did not err in ordering forfeiture of three vehicles based on evidence that over an approximate one-week period of time, the defendant was involved in three controlled buys of suspected cocaine from the vehicles. Jones v. State, 249 Ga. App. 64, 547 S.E.2d 725 (2001) (decided under former O.C.G.A. § 16-13-49).

There was evidence to support the trial court's finding that property found in a vehicle was used to facilitate a drug transaction involving more than four ounces of marijuana and/or found in close proximity to more than four ounces of marijuana, thereby subjecting the property to forfeiture to the State of Georgia pursuant to former O.C.G.A § 16-13-49 because the state produced evidence that 17.6 ounces of marijuana and a blunt were found in the vehicle. Sumner v. State, 306 Ga. App. 140, 701 S.E.2d 585 (2010) (decided under former O.C.G.A. § 16-13-49).

Trial court misinterpreted former O.C.G.A. § 16-13-49(d)(6) in holding that the defendant's vehicle, which was in close proximity to the defendant's apartment in which drugs were seized, was not subject to forfeiture because the state lacked evidence that the vehicle was in any way connected to the unlawful activity; no such connection was required. State of Ga. v. West, 331 Ga. App. 745, 771 S.E.2d 432 (2015).

Defendant's vehicle was not subject to forfeiture since it was neither used nor intended for use to transport, hold or conceal the contraband but was used only to transport the defendant to the site where the cocaine was located and the sale eventually took place. State v. Hamm, 193 Ga. App. 184, 387 S.E.2d 344 (1989) (decided under former O.C.G.A. § 16-13-49).

Personal property within dwelling.

- Evidence sufficient for conviction of burglary after the defendant attempted to remove items the defendant claimed were the defendant's personal property from a house subject to forfeiture after the forfeiture order had lapsed. Underwood v. State, 221 Ga. App. 93, 470 S.E.2d 699 (1996) (decided under former O.C.G.A. § 16-13-49).

Proximity of money to drugs establishes prima facie case.

- Showing by the state that money is in close proximity to drugs is sufficient to establish a prima facie case in an action for condemnation of the money. Moore v. State, 209 Ga. App. 89, 432 S.E.2d 597 (1993) (decided under former O.C.G.A. § 16-13-49).

Plaintiff's burden of proof in forfeiture action based upon controlled substances crime.

- Plaintiff in a forfeiture action has the initial burden of presenting a prima facie case that the defendant's property is subject to forfeiture. In order to meet this burden, the plaintiff must show by a preponderance of the evidence it presents that the essential elements of a controlled substances crime are present. The plaintiff must also show by a preponderance of the evidence it presents that the defendant's property was substantially connected to the criminal activity. Georgia v. Six Hundred Forty Thousand, Seven Hundred Sixty-Eight Dollars in United States Currency, 712 F. Supp. 180 (N.D. Ga. 1988) (decided under former O.C.G.A. § 16-13-49).

State's burden of proof.

- Forfeiture action under former O.C.G.A. § 16-13-49 was a civil proceeding, and the state, as plaintiff, is required to prove its case by a preponderance of the evidence rather than by the higher burden of proof applicable to criminal cases; the state met its burden of proof after the trial court inferred the following from defendant's invocation of defendant's right against self-incrimination: (1) defendant used defendant's vehicle to transport more than four ounces of marijuana and cocaine; (2) the vehicle, the cash, and the stereo system were in close proximity to more than four ounces of marijuana and cocaine; and (3) defendant either consented to the conduct of possession of marijuana and cocaine with intent to distribute, or defendant knew or reasonably should have known of said conduct. Sanders v. State, 259 Ga. App. 422, 577 S.E.2d 94 (2003) (decided under former O.C.G.A. § 16-13-49).

Because the case was an in rem proceeding for property valued at more than $25,000, the pleading requirement of former O.C.G.A. § 16-13-49(o) applied, not O.C.G.A. § 16-13-49(n); the state's statutory burden, in part, was to allege the essential elements of the violation, not the essential facts supporting the alleged offense. Arreola-Soto v. State of Ga., 314 Ga. App. 165, 723 S.E.2d 482 (2012), cert. denied, No. S12C1048, 2012 Ga. LEXIS 593 (Ga. 2012).

Shifting burden of proof.

- Once the plaintiff has met its initial burden of presenting a prima facie case, the burden shifts to the intervenor to show that the seized property is not subject to forfeiture. Georgia v. Six Hundred Forty Thousand, Seven Hundred Sixty-Eight Dollars in United States Currency, 712 F. Supp. 180 (N.D. Ga. 1988) (decided under former O.C.G.A. § 16-13-49).

State set forth a prima facie case.

- State set out a prima facie case for forfeiture because the presence of a large amount of currency in close proximity with firearms, ammunition, and 16.3 grams of marijuana packaged in three small bags, a manner commonly used for distribution, set out a prima facie case that the marijuana was used to facilitate a transaction in or purchase of or sale of marijuana. Glenn v. State of Ga., 320 Ga. App. 214, 739 S.E.2d 692 (2013).

Preserving interests of innocent owners.

- Term "owner" as used in former O.C.G.A. § 16-13-49(a)(7) applied to owners to the extent of their interest in property subject to forfeiture. Thus, the state may condemn the property interests of wrongdoers, and those otherwise failing to qualify as innocent owners under the statute, while at the same time preserving the interests of innocent owners. State v. Jackson, 197 Ga. App. 619, 399 S.E.2d 88 (1990) (decided under former O.C.G.A. § 16-13-49).

Trial court's order of forfeiture entered against a wife was reversed, given evidence that the wife sufficiently showed a status as an innocent owner, lacking the knowledge that the husband was selling drugs from the vehicle seized and the wife's knowledge of the husband's prior criminal activity failed to serve as notice of future criminal activity; furthermore, to hold that the wife acquired knowledge that the husband would use the vehicle in a manner giving rise to its forfeiture would misconstrue the statute and undermine the rights of innocent spouses. Love v. State of Ga., 281 Ga. App. 664, 637 S.E.2d 81 (2006) (decided under former O.C.G.A. § 16-13-49).

Proof required of alleged innocent owner.

- Co-owner who asserted the innocent owner exception under former O.C.G.A. § 16-13-49 had a two-fold burden. First, in order to establish standing to contest the forfeiture, the co-owner had the burden of proving the nature and extent of the co-owner's interest in the property. Second, the co-owner must prove by a preponderance of the evidence that the co-owner was entitled to the exception as defined by the former statute. State v. Jackson, 197 Ga. App. 619, 399 S.E.2d 88 (1990) (decided under former O.C.G.A. § 16-13-49).

Claimant who appeared and demanded possession as owner of an automobile which was the subject of a civil forfeiture action established a sufficient ownership interest, as against the state, by proof of claimant's payment of valuable consideration and receipt of the certificate of title from the transferor, even though the claimant failed to register the vehicle. State v. Banks, 215 Ga. App. 828, 452 S.E.2d 533 (1994) (decided under former O.C.G.A. § 16-13-49).

In a forfeiture action, the court did not cast the burden on the state of establishing that the vehicle owner had knowledge of the drug sale, whereas the burden was on the owner to establish that the owner did not have such knowledge, where the court found in favor of the owner because it found credible the owner's testimony that the owner did not have such knowledge. State v. Ledford, 217 Ga. App. 272, 456 S.E.2d 757 (1995) (decided under former O.C.G.A. § 16-13-49).

When there was evidence to support the conclusion that the owner of the property was not a bona fide purchaser for value, the property was subject to forfeiture. Maynard v. State, 217 Ga. App. 344, 457 S.E.2d 253 (1995); Salem v. State, 232 Ga. App. 886, 503 S.E.2d 62 (1998), cert. denied, 528 U.S. 965, 120 S. Ct. 400, 145 L. Ed. 2d 312 (1999) (decided under former O.C.G.A. § 16-13-49).

When the evidence was that a vehicle which was the subject of forfeiture actually belonged to the defendant, and that the supposed owner was a strawman whom the defendant sought to use in order to avoid the loss of defendant's car as a result of the car's use in the transportation of drugs, it was sufficient to support a finding that the car belonged to the defendant. Mitchell v. State, 236 Ga. App. 335, 511 S.E.2d 880 (1999) (decided under former O.C.G.A. § 16-13-49).

Because: (1) the state presented sufficient evidence that both parents were aware of their son's prior arrest for possession of marijuana with the intent to distribute while using the father's truck and the mother's cell phone, and knew that defendant had in fact used the truck to commit that crime; and (2) the father had been previously warned that his truck could be subject to forfeiture if his son was again caught using it while engaging in drug sales, upon the occurrence of the same, the parents failed to present clear and convincing evidence of their innocent owner status to avoid forfeiture of both their truck and the cell phone. Little v. State of Ga., 279 Ga. App. 329, 630 S.E.2d 903 (2006) (decided under former O.C.G.A. § 16-13-49).

Test, which allowed even an interest holder that had knowledge of the illicit use of its property to take advantage of the "innocent" interest holder defense by showing that it took reasonable measures to prevent such use, was a proper interpretation of former O.C.G.A. § 16-13-49(e). GMAC v. State of Ga., 268 Ga. App. 473, 602 S.E.2d 235 (2004) (decided under former O.C.G.A. § 16-13-49).

To have standing to contest a forfeiture, a party must have at least some property interest in the subject matter of the condemnation proceeding. That interest may be one of ownership, lease holder, or secured party, but there must be some substantial interest greater than an asserted "superior right of possession" resulting from the mere fact that the property was seized from one's residence. Chester v. State, 168 Ga. App. 618, 309 S.E.2d 897 (1983) (decided under former O.C.G.A. § 16-13-49).

Claimant did not have standing to contest forfeiture when the claimant failed to demonstrate an ownership interest in the property as recognized by former O.C.G.A. § 16-13-49. Lockett v. State, 218 Ga. App. 289, 460 S.E.2d 857 (1995) (decided under former O.C.G.A. § 16-13-49).

Because the claimant had a possessory interest in the claimant's child's Social Security check, as bailee of the funds, claimant had standing to contest the forfeiture of the property. Jackson v. State, 231 Ga. App. 320, 498 S.E.2d 159 (1998) (decided under former O.C.G.A. § 16-13-49).

When the trial court found that the appellant did not own a sum of cash ordered to be forfeited and appellant did not challenge that finding, the appellant had no standing to challenge the trial court's conclusion that the cash was subject to forfeiture. Holmes v. State, 233 Ga. App. 872, 506 S.E.2d 157 (1998) (decided under former O.C.G.A. § 16-13-49).

When a wife gave cash to her husband to pay an attorney, but the husband used the money to bribe a police officer, the wife relinquished control of the cash and lacked standing to challenge the forfeiture of the money. Belvin v. State, 258 Ga. App. 790, 575 S.E.2d 707 (2002) (decided under former O.C.G.A. § 16-13-49).

Party must have at least some property interest in the subject matter of the condemnation proceeding; a person who has no interest in property cannot complain of the property's forfeiture because as a stranger to the property, that person is a mere member of the public volunteering to challenge the entitlement of the state to the property. Shepard v. State of Ga., 267 Ga. App. 604, 600 S.E.2d 691 (2004) (decided under former O.C.G.A. § 16-13-49).

No public record allowed a criminal defendant's parent to perfect an implied trust (based on the parent's allegation that the parent paid for cars but titled them in the son's name for insurance purposes) against a bona fide purchaser for value; so, in a former O.C.G.A. § 16-13-49 forfeiture proceeding of two cars, the parent was not the statutory "owner" or "interest holder" as those terms were defined in O.C.G.A. §§ 11-9-102 and16-13-49 and the parent thus lacked standing to contest the forfeiture. McFarley v. State of Ga., 268 Ga. App. 621, 602 S.E.2d 341 (2004) (decided under former O.C.G.A. § 16-13-49).

Trial court erred in finding that a defendant and the mother had standing as claimants to assert ownership in currency that was the subject of a civil forfeiture proceeding by the state, as it was found in close proximity to seized marijuana and other property subject to forfeiture during execution of a search warrant in defendant's apartment, as there was no showing by defendant and the mother that the funds which the mother allegedly had previously given to defendant to use on college expenses of defendant's brother were the same funds that were the seized currency. State of Ga. v. Richardson, 276 Ga. App. 784, 625 S.E.2d 52 (2005) (decided under former O.C.G.A. § 16-13-49).

Innocent ownership not proven.

- In a civil forfeiture action under former O.C.G.A. § 16-13-49, a wife did not show that she was an innocent owner of money and a pickup truck. There was no evidence either that the money was given solely to the husband or that the money belonged jointly to the spouses, and although the truck was in the wife's name, there was evidence that the truck was held jointly in that the husband drove the truck. Webb v. State, 300 Ga. App. 29, 684 S.E.2d 115 (2009).

While the defendant's parent produced evidence that the parent was the title owner of the vehicle that was forfeited to the state and that the parent had allowed the defendant to use the vehicle for the weekend, the evidence supported the trial court's findings that the parent held the vehicle jointly, in common, or in community with the defendant based on their shared ownership and use of the vehicle; the defendant installed a "boom box" in the trunk of the vehicle, which occupied the entire trunk, the defendant installed custom tires and rims on the vehicle, which the parent admitted belonged to the defendant, the defendant painted the vehicle a few days before the defendant's arrest, and the defendant's personal effects were in the vehicle. Sumner v. State, 306 Ga. App. 140, 701 S.E.2d 585 (2010) (decided under former O.C.G.A. § 16-13-49).

Trial court erred in denying the state's in rem forfeiture action and adjudicating a husband an innocent owner of a vehicle the state seized when his wife was arrested for possessing methamphetamine and other crimes because the husband lacked title to the car, and any other interest he could have had was in community with the wife since the husband assigned his interest in the car to the wife and the certificate itself listed the purchase date as one day before the seizure; thus, pursuant to the Motor Vehicle Certificate of Title Act, O.C.G.A. § 40-3-32, the assignment to the wife was completed one day before the seizure, and the husband had no ownership interest in the vehicle on that day. State v. Centers, 310 Ga. App. 413, 713 S.E.2d 479 (2011).

Bailee of seized property has a possessory interest in the property and has standing to contest the forfeiture thereof. Lawrence v. State, 231 Ga. App. 739, 501 S.E.2d 254 (1998) (decided under former O.C.G.A. § 16-13-49).

Question for jury.

- Although agent did not observe manner in which defendant arrived with cocaine, either prior to meeting inside restaurant or from inside motor home, it would be reasonable to infer, since defendant owned the motor home, that defendant drove it into the parking lot while the cocaine was in defendant's physical possession; and resolution of use or intended use of motor home for transportation or facilitation of transportation of the cocaine was duty of jury. State v. Belcher, 165 Ga. App. 139, 299 S.E.2d 57 (1983) (decided under former O.C.G.A. § 16-13-49).

State in forfeiture proceeding does not occupy status of creditor or lienholder so that security interest of intervenor, where not properly recorded, is subordinated to it. Hallman v. State, 141 Ga. App. 527, 233 S.E.2d 839 (1977) (decided under former O.C.G.A. § 16-13-49).

State in forfeiture proceeding is not in position of creditor or lienholder. State v. Sewell, 155 Ga. App. 734, 272 S.E.2d 514 (1980) (decided under former O.C.G.A. § 16-13-49).

State's interest in forfeiture proceeding is only to prevent guilty party from further misusing property. State v. Sewell, 155 Ga. App. 734, 272 S.E.2d 514 (1980) (decided under former O.C.G.A. § 16-13-49).

Collateral attack of legality of underlying search.

- Collateral attack on the legality of the underlying search may be made in the context of forfeiture proceedings pursuant to former O.C.G.A. § 16-13-49 when the validity of the search has not been previously adjudicated in a criminal action. Pitts v. State, 207 Ga. App. 606, 428 S.E.2d 650 (1993) (decided under former O.C.G.A. § 16-13-49).

Postjudgment attack on forfeiture.

- Defendant's motion in a criminal proceeding for return of money that was forfeited in civil proceeding was properly denied since the proper method of making a postjudgment attack on a forfeiture is through O.C.G.A. § 9-11-60. Youree v. State, 220 Ga. App. 453, 469 S.E.2d 208 (1996) (decided under former O.C.G.A. § 16-13-49).

Security interest not forfeited when secured party unaware of illegal use of vehicle.

- Since there was no evidence that secured party was aware that car subject to security interest was used for illegal transport of marijuana, security interest was not forfeited. State v. Sewell, 155 Ga. App. 734, 272 S.E.2d 514 (1980) (decided under former O.C.G.A. § 16-13-49).

Failure to file security agreement concerning airplane with FAA.

- Fact that security agreement concerning airplane had not been registered or recorded with the FAA, an agency of the department of transportation, did not bar the secured party from protecting its security interest in a condemnation proceeding pursuant to former O.C.G.A. § 16-13-49. F & M Bank v. State, 167 Ga. App. 77, 306 S.E.2d 11 (1983) (decided under former O.C.G.A. § 16-13-49).

Participation in preliminary hearing constitutes notice.

- Assistant district attorney's participation in the preliminary hearing at which testimony concerning the seizure was elicited, constituted notice to the district attorney. State v. Luke, 183 Ga. App. 182, 358 S.E.2d 272 (1987) (decided under former O.C.G.A. § 16-13-49).

Notice held sufficient for out-of-state residents.

- Publication of forfeiture proceedings for two weeks in a newspaper with local circulation in Lowndes County, as provided for in former O.C.G.A. § 16-13-49(e), was not insufficient notice to the defendants as out-of-state residents so as to be violative of the due process provisions of the state and federal constitutions. Not only did the state publish notice of the proceedings, but it also attempted, unsuccessfully, personal service, at addresses which were supplied by the defendants themselves to drug agents at the time of arrest. Pack v. State, 187 Ga. App. 210, 369 S.E.2d 530 (1988) (decided under former O.C.G.A. § 16-13-49).

No standing for general unsecured creditor.

- General unsecured creditor does not have a legally cognizable interest sufficient to grant the creditor standing to challenge a forfeiture action against seized currency. Crenshaw v. State, 206 Ga. App. 271, 425 S.E.2d 660 (1992) (decided under former O.C.G.A. § 16-13-49).

No retroactive application of former O.C.G.A.

§ 16-13-49(o)(3). - See Jones v. State, 210 Ga. App. 140, 435 S.E.2d 507 (1993) (decided under former O.C.G.A. § 16-13-49).

Forfeiture inappropriate.

- Forfeiture provisions of former O.C.G.A. § 16-13-49 did not apply to transactions involving counterfeit controlled substances. State v. White, 216 Ga. App. 183, 454 S.E.2d 542 (1995) (decided under former O.C.G.A. § 16-13-49).

Forfeiture of 5.1 acres of land, including a house, based on the recovery of a few immature marijuana plants growing on a small portion of the property was excessive under U.S. Const., amend 8, and mitigation of the forfeiture was not practicable. State v. Evans, 225 Ga. App. 402, 484 S.E.2d 70 (1997) (decided under former O.C.G.A. § 16-13-49).

Forfeiture appropriate.

- When it was probable defendant would have left the site with the marijuana in the pickup had defendant not been arrested, even though the arrest prevented the pickup from actually being used to transport the contraband, the court did not err in ordering the truck's forfeiture. Lanier v. State, 212 Ga. App. 51, 441 S.E.2d 87 (1994) (decided under former O.C.G.A. § 16-13-49).

Evidence of defendant's possession of methamphetamine was sufficient to support the forfeiture of defendant's truck. Gearin v. State, 218 Ga. App. 390, 461 S.E.2d 562 (1995) (decided under former O.C.G.A. § 16-13-49).

Evidence that marijuana was to be transported in defendant's vehicle and that money found in defendant's pocket was to be used to pay defendant's drug courier was sufficient to show that the items were contraband subject to forfeiture. Michael v. State, 226 Ga. App. 288, 486 S.E.2d 406 (1997) (decided under former O.C.G.A. § 16-13-49).

A CD and checking account found in close proximity to marijuana in a private residence were subject to forfeiture after the owner could not prove acquisition thereof as a bona fide purchaser. Salem v. State, 232 Ga. App. 886, 503 S.E.2d 62 (1998), cert. denied, 528 U.S. 965, 120 S. Ct. 400, 145 L. Ed. 2d 312 (1999) (decided under former O.C.G.A. § 16-13-49).

State showed a strong nexus between currency and the claimant's activity of selling marijuana sufficient to support forfeiture of the currency since the currency was seized at the time the defendant was arrested for possession of marijuana, and although no actual drug transaction was observed, the arresting officers had received a tip that the defendant was selling drugs, the defendant fled with a paper bag in defendant's hands when the officers stopped the defendant, the officers later found the bag containing currency some ten feet away from where the officers arrested the defendant, and 1.1 ounces of bagged marijuana were found in the defendant's car. Morris v. State, 234 Ga. App. 683, 507 S.E.2d 532 (1998) (decided under former O.C.G.A. § 16-13-49).

Trial court's judgment of condemnation was supported by a preponderance of the evidence including: authentication by a forensic chemist that a sample submitted was cocaine, and the laboratory report showed 67.2 grams of the cocaine to have 78 percent purity; testimony by an officer that the cocaine was field tested and by the drug's color, the officer knew that the drugs were going to be a good purity; evidence showed that defendant was able to supply a kilo of cocaine on very short notice, leading to an inference that defendant was regularly engaged in the drug trade; defendant's explanations for the presence of the large amount of cash in defendant's apartment were not reasonable given the earnings defendant reported to the Internal Revenue Service; defendant's explanation for having a bulletproof vest and the gun was not reasonable, and defendant had no explanation for the presence of cocaine in a vehicle owned by the defendant. Davis v. State, 256 Ga. App. 299, 568 S.E.2d 161 (2002) (decided under former O.C.G.A. § 16-13-49).

In a civil in rem forfeiture proceeding, because the trial court agreed that due process required a judicial finding of some degree of criminal responsibility on the part of the owner of contraband before the government could constitutionally take title to the property, the trial court properly found as a factual matter that the owner at issue possessed the requisite degree of criminal responsibility to justify a forfeiture, and could not, therefore, demonstrate reversible error on appeal. Walden v. State of Ga., 283 Ga. 148, 656 S.E.2d 801 (2008) (decided under former O.C.G.A. § 16-13-49).

Trial court's order of forfeiture was upheld on appeal and thus was not subject to dismissal as: (1) the trial court was presented with testimony from witnesses other than the affiant, as well as sufficient other evidence, to support the order; (2) the alleged property owner waived any defense of insufficient service; and (3) an alternative code section did not afford the owner relief. McDowell v. State of Ga., 290 Ga. App. 538, 660 S.E.2d 24 (2008) (decided under former O.C.G.A. § 16-13-49).

In a civil forfeiture proceeding, the trial court properly entered an order of forfeiture and disposition of seized property as the challenging claimant failed to file a claim to the property within 30 days from the second publication notice. Therefore, the claim was untimely. Weaver v. State, 299 Ga. App. 718, 683 S.E.2d 361 (2009), cert. denied, No. S10C0024, 2010 Ga. LEXIS 128 (Ga. 2010) (decided under former O.C.G.A. § 16-13-49).

When a corporation made no effort to determine whether a truck, on which the corporation was a lienholder, was being used to transport illegal drugs, the trial court properly forfeited the corporation's interest in the truck. GMAC v. State of Ga., 268 Ga. App. 473, 602 S.E.2d 235 (2004) (decided under former O.C.G.A. § 16-13-49).

Trial court's innocent owner finding upheld.

- Because the plain language of former O.C.G.A. § 16-13-49 supported the trial court's conclusion that the owner was permitted under former § 16-13-49(o)(3) to file an answer in the state's in rem proceeding seeking forfeiture of a truck the state seized, and as to which the owner claimed "innocent owner" status, and the owner filed a timely claim, the appeal court rejected the state's contrary contention. State of Ga. v. Howell, 288 Ga. App. 176, 653 S.E.2d 330 (2007), cert. denied, No. S08C0454, 2008 Ga. LEXIS 224 (Ga. 2008) (decided under former O.C.G.A. § 16-13-49).

Double jeopardy.

- Forfeiture proceeding under former O.C.G.A. § 16-13-49 was legitimately a civil sanction and did not constitute punishment for purposes of double jeopardy. Murphy v. State, 267 Ga. 120, 475 S.E.2d 907 (1996); Lundy v. State, 226 Ga. App. 197, 482 S.E.2d 516 (1997) (decided under former O.C.G.A. § 16-13-49).

Constructive notice permissible.

- Property owner was not entitled to relief under Fed. R. Civ. P. 60(b)(4) on the ground that the court's judgment was inconsistent with due process of law because: (1) the court did not improperly invoke the fugitive disentitlement doctrine; (2) Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions G(4)(a)(iii)-(iv) required publication of the forfeiture proceeding once a week for three consecutive weeks in a newspaper generally circulated in the district where the action was filed, and those procedures were fully complied with as written notice was served upon petitioner's property by the United States Marshals and was printed for three weeks in the Atlanta Journal Constitution, a local newspaper in general circulation in the district; and (3) the notice was sufficient under CAFRA, 18 U.S.C. § 985 since a copy of the complaint was posted on the defendant's property by the United States Marshals and because at the time of the original forfeiture action, there were serious criminal charges pending against the property owner, and law enforcement officers were actively attempting to locate the defendant, the government therefore exercised due diligence attempting to locate petitioner, and thus, constructive notice under Georgia law, O.C.G.A. § 16-13-49(i)(2), was permissible. United States v. 5054 Stoney Point Lake, 731 F. Supp. 2d 1345 (N.D. Ga. 2010) (decided under former O.C.G.A. § 16-13-49).

Cited in State v. Norton, 142 Ga. App. 772, 237 S.E.2d 11 (1977); First Bank & Trust v. State, 150 Ga. App. 436, 258 S.E.2d 59 (1979); State v. Johnson, 153 Ga. App. 816, 266 S.E.2d 529 (1980); Green v. State, 155 Ga. App. 795, 272 S.E.2d 761 (1980); Duckett v. State, 158 Ga. App. 285, 279 S.E.2d 734 (1981); Sacchinelli v. State, 161 Ga. App. 763, 288 S.E.2d 894 (1982); Bell v. State, 162 Ga. App. 79, 290 S.E.2d 187 (1982); State v. 1977 Pontiac, 163 Ga. App. 456, 294 S.E.2d 660 (1982); Garvey v. State, 176 Ga. App. 268, 335 S.E.2d 640 (1985); Cooper v. State, 186 Ga. App. 154, 366 S.E.2d 815 (1988); Jewell v. State, 200 Ga. App. 203, 407 S.E.2d 763 (1991); State v. Walls, 202 Ga. App. 899, 415 S.E.2d 921 (1992); Stalvey v. State, 210 Ga. App. 544, 436 S.E.2d 579 (1993); Manley v. State, 217 Ga. App. 556, 458 S.E.2d 179 (1995); Hunstein v. McDade, 267 Ga. 515, 480 S.E.2d 192 (1997); Brown v. State, 225 Ga. App. 201, 483 S.E.2d 641 (1997); Lyon v. State, 230 Ga. App. 264, 495 S.E.2d 899 (1998); Daugherty v. Jarrett, 239 Ga. App. 466, 521 S.E.2d 406 (1999); James v. State, 240 Ga. App. 288, 523 S.E.2d 354 (1999); Giraldo v. State, 249 Ga. App. 178, 547 S.E.2d 395 (2001); Gary v. State, 249 Ga. App. 879, 549 S.E.2d 826 (2001); Green v. State, 250 Ga. App. 440, 550 S.E.2d 736 (2001); Hooper v. State, 252 Ga. App. 574, 555 S.E.2d 842 (2001); Gober v. State, 275 Ga. 356, 566 S.E.2d 317 (2002).

Former O.C.G.A.

§ 16-13-49 did not violate excessive fines provision. - Condemnation to the state of 5.1 acres of land on which marijuana plants totaling 8.8 ounces were found growing did not violate state or federal constitutional provisions prohibiting excessive fines. Evans v. State, 214 Ga. App. 844, 449 S.E.2d 302 (1994) (decided under former O.C.G.A. § 16-13-49).

Based on a property owner's willful blindness to the illegal growing of marijuana on the subject property, and the owner's knowledge of the past use of the property for criminal purposes, the forfeiture did not amount to an unconstitutional excessive fine; moreover, the harshness of the forfeiture was not grossly disproportionate to the gravity of the offense on which it was based or to the owner's own culpability. Howell v. State of Ga., 283 Ga. 24, 656 S.E.2d 511 (2008) (decided under former O.C.G.A. § 16-13-49).

Right against self-incrimination.

- Defendant failed to show how requiring the defendant to conform to the pleading requirements of former O.C.G.A. § 16-13-49(o)(3) violated the defendant's Fifth Amendment right against self-incrimination. Jett v. State, 230 Ga. App. 655, 498 S.E.2d 274 (1998) (decided under former O.C.G.A. § 16-13-49).

Defendant was not forced to be a witness against self in criminal case when the trial court allowed admission of certain answers defendant gave in a petition filed in a related civil forfeiture proceeding that defendant owned certain property, including illegal drugs seized at defendant's residence, as defendant had the option of seeking a stay of the civil forfeiture proceeding while the criminal case was going on, but chose not to do so. Clemons v. State, 257 Ga. App. 96, 574 S.E.2d 535 (2002) (decided under former O.C.G.A. § 16-13-49).

Statute does not violate the confrontation clause.

- Trial court did not err in admitting hearsay evidence in a forfeiture hearing, pursuant to former O.C.G.A. § 16-13-49(s)(1), where officers who testified therein were not called upon to prove that defendant violated the law but for the limited purpose of explaining the basis for seeking a warrant; therefore, the trial court correctly rejected defendant's challenge that the statute violated defendant's constitutional right to face defendant's accusers. Banks v. State of Ga., 277 Ga. 543, 592 S.E.2d 668 (2004) (decided under former O.C.G.A. § 16-13-49).

Procedural due process does not require a preseizure hearing in cases of contraband condemnation. State v. Bailey, 233 Ga. 795, 213 S.E.2d 661 (1975) (decided under former Code 1933, § 79A-828).

Former language "or possessed in violation of § 16-13-32.2" was invalid. Windfaire, Inc. v. Busbee, 523 F. Supp. 868 (N.D. Ga. 1981) (decided under former O.C.G.A. § 16-13-49).

Provisions mandating proceedings without jury trial.

- Former O.C.G.A. § 16-13-49(o)(5) and (p)(6), mandating drug forfeiture proceedings "without a jury trial," violate neither the Seventh Amendment to the federal Constitution, whose range is over federal drug forfeiture actions, nor Ga. Const. 1983, Art. I, Sec. I, Para. XI, as the right to jury trial in drug forfeiture proceedings did not exist in 1798. Swails v. State, 263 Ga. 276, 431 S.E.2d 101, cert. denied, 510 U.S. 1011, 114 S. Ct. 602, 126 L. Ed. 2d 567 (1993) (decided under former O.C.G.A. § 16-13-49).

No unconstitutional taking resulted from lawful forfeiture.

- Because a forfeiture of real property was not made under the power of eminent domain, and the trial court properly ruled that the forfeiture was proper, no takings clause issue was presented which entitled the property owner to just compensation. Howell v. State of Ga., 283 Ga. 24, 656 S.E.2d 511 (2008) (decided under former O.C.G.A. § 16-13-49).

Applicability of subsection (e).

- Former O.C.G.A. § 16-13-49(e) had no application where it was the federal government, and not the state, which brought the forfeiture proceeding. Freeman v. City of Atlanta, 195 Ga. App. 641, 394 S.E.2d 784 (1990) (decided under former O.C.G.A. § 16-13-49).

Applicability of § 17-5-54. - When the claimant asserted a right to property which was the subject of a forfeiture proceeding under former O.C.G.A. § 16-13-49, the state's filing of a dismissal did not terminate the proceeding, and the sheriff was not authorized to apply for an order disposing of the property as "abandoned" pursuant to O.C.G.A. § 17-5-54. Boone v. Sheriff of Lowndes County, 232 Ga. App. 601, 502 S.E.2d 535 (1998) (decided under former O.C.G.A. § 16-13-49).

Libel condemnation proceeding was a special statutory proceeding governed by former O.C.G.A. § 16-13-49, which must be strictly construed. Lang v. State, 168 Ga. App. 693, 310 S.E.2d 276 (1983) (decided under former O.C.G.A. § 16-13-49).

Failure to initiate proceedings.

- Claimant's sole remedy for failure by the district attorney to initiate forfeiture action within sixty days of seizure of the property was to request return of the property pending further proceeding under former O.C.G.A. § 16-13-49 and, absent such request, any error made by the superior court in determining if or when seizure of the property had occurred prior to the final order in the forfeiture proceeding was harmless. Turner v. State, 213 Ga. App. 309, 444 S.E.2d 372 (1994) (decided under former O.C.G.A. § 16-13-49).

Although the state failed to bring proceedings in a timely manner for forfeiture of a car and money seized when drugs were found in the car, the car owner was not entitled to have the forfeiture proceedings dismissed; the property was always subject to further forfeiture proceedings, which took place, and since the car owner failed to show any harm resulting from the state's failure to initiate the proceedings in a timely manner, the order upholding the seizure was affirmed. Johnson v. State of Ga., 266 Ga. App. 171, 596 S.E.2d 693 (2004) (decided under former O.C.G.A. § 16-13-49).

Condemnation proceeding is designed to be expeditious and a party may not belatedly tender an answer to petition under general rules of civil practice. State v. Britt Caribe, Ltd., 154 Ga. App. 476, 268 S.E.2d 702 (1980) (decided under former Code 1933, § 79A-828).

Proceedings were timely when it was shown that the state commenced the forfeiture proceedings within 60 days of the seizure. Owens v. State, 241 Ga. App. 140, 525 S.E.2d 150 (1999) (decided under former O.C.G.A. § 16-13-49).

In a forfeiture action, the trial court did not abuse its discretion in finding that the 60-day time requirement to conduct a hearing under former O.C.G.A. § 16-13-49(o)(5) did not commence until the date that the claimant's father was served with the complaint and summons and not the date when the claimant was served; claimant's acknowledgment of service was ineffective to operate as a waiver of service because it was not served upon the prosecutor. Mitchell v. State, 255 Ga. App. 507, 566 S.E.2d 24 (2002), cert. denied, 255 Ga. App. 553, 565 S.E.2d 877 (2002) (decided under former O.C.G.A. § 16-13-49).

Trial court did not err in denying an owner's motion to dismiss the state's complaint in rem for forfeiture of property pursuant to former O.C.G.A. § 16-13-49 because the state invoked a hearing within 60 days of service of the state's complaint as required by former § 16-13-49(o)(5), and the hearing was continued for good cause; the state invoked a hearing within 60 days of service of the state's complaint by forwarding a blank rule nisi to the trial court and asking that the trial court fix a hearing, and the trial court did not, or could not, set a hearing within the 60-day statutory period because of the court's crowded docket, which constituted good cause for a continuance of the requested hearing. Sims v. State, 299 Ga. App. 738, 683 S.E.2d 686 (2009) (decided under former O.C.G.A. § 16-13-49).

Proceedings were untimely.

- In a civil forfeiture case, the state improperly seized cash from the plaintiff because the requirements of former O.C.G.A. § 16-13-49(o)(5) were not met since the hearing on the forfeiture complaint was conducted more than 60 days after the prior continuance, and nothing in the record indicated that the plaintiff consented to re-scheduling the hearing outside the statutory period; the hearing took place 69 days after the last continuance, the plaintiff appeared ready for the hearing on two occasions, and through no fault of the plaintiff's own, the hearing was continued both times. Williams v. State, 302 Ga. App. 617, 691 S.E.2d 385 (2010) (decided under former O.C.G.A. § 16-13-49).

It was undisputed that the initial hearing on the state's forfeiture complaint was not scheduled until 63 days after the defendant was served with the complaint, and the state neither moved for, nor did the trial court grant, a continuance within the statutorily imposed 60-day time period. Because the mandatory statutory time limitations contained within former O.C.G.A. § 16-13-49(o)(5) were not met, the court was constrained to reverse the trial court's judgment of forfeiture. Goodwin v. State of Ga., 321 Ga. App. 548, 739 S.E.2d 814 (2013).

Trial court should have dismissed an in rem civil forfeiture action because no timely hearing on the underlying forfeiture complaint was held. After the trial court granted the state's motion to stay the proceedings, approximately one year passed before either a hearing or another continuance. Bourassa v. State of Ga., 323 Ga. App. 435, 746 S.E.2d 815 (2013).

Fact that car is subject to forfeiture does not excuse failure to institute forfeiture proceedings.

- Mere fact that car used in transporting drugs was subject to forfeiture proceedings under former O.C.G.A. § 16-13-49 would not insulate police officers from liability if the officers detained the car or caused the car to be detained without instituting forfeiture proceedings. Jonas v. City of Atlanta, 647 F.2d 580 (5th Cir. 1981) (decided under former O.C.G.A. § 16-13-49).

State cannot, through notice to produce, achieve results the state unsuccessfully sought.

- State may not, by using notice to produce pursuant to the Evidence Code attempt to secure indirectly the same disposition of property which would have obtained in accordance with former Code 1933, § 79A-828 had its libel for condemnation been successful. Johnson v. State, 156 Ga. App. 496, 274 S.E.2d 837 (1980) (decided under former Code 1933, § 79A-828).

Unconstitutional self-incrim- ination would be result of compliance with such notice. Johnson v. State, 156 Ga. App. 496, 274 S.E.2d 837 (1980) (decided under former Code 1933, § 79A-828).

Time specification in summons constituting mere surplusage.

- In a case under former O.C.G.A. § 16-13-49, the summons issued by the clerk of the trial court and attached to the process directed defendant to answer the complaint "within 30 days after service of this summons upon you, exclusive of the day of service," and defendant's "answer" was timely filed in accordance with the clerk's summons, albeit not timely filed pursuant to the court's order contained in the process. The summons attached by the clerk was surplusage, as former O.C.G.A. § 16-13-49 did not require process upon the alleged owner, merely notice to the alleged owner of the proposed condemnation. Farley v. State, 180 Ga. App. 694, 350 S.E.2d 263 (1986) (decided under former O.C.G.A. § 16-13-49).

Failure to comply with time requirement of former O.C.G.A. § 16-13-49 does not result in dismissal of forfeiture action. State v. Luke, 183 Ga. App. 182, 358 S.E.2d 272 (1987) (decided under former O.C.G.A. § 16-13-49).

Dismissal of the state's forfeiture action against the property owner was reversed because the property owner was not entitled to have the forfeiture proceedings dismissed despite its untimely initiation since former O.C.G.A. § 16-13-49(h)(3) provided the sole remedy and case law established that if the state failed to initiate a timely forfeiture, the property had to be released at the owner's request pending further forfeiture proceedings, unless the property was being held as evidence. State of Ga. v. Brooks, 333 Ga. App. 769, 777 S.E.2d 54 (2015).

Defendant may obtain return of property when state failed to comply with former O.C.G.A. § 16-13-49(e). State v. Ellis, 156 Ga. App. 779, 275 S.E.2d 361 (1980); State v. Waters, 173 Ga. App. 274, 326 S.E.2d 243 (1985) (decided under former O.C.G.A. § 16-13-49).

Relation back of amended claim.

- Amended claim against the property seized by the state filed after the 30-day deadline did not relate back to the date of the original answer so as to resurrect the claims. Roberts v. State, 226 Ga. App. 824, 487 S.E.2d 667 (1997) (decided under former O.C.G.A. § 16-13-49).

Service on the defendant was proper when, to cure defendant's initial complaints about service, the judge allowed the state to serve the defendant personally in open court and then delayed acting on the matter until the defendant had more than 30 days to respond. Owens v. State, 241 Ga. App. 140, 525 S.E.2d 150 (1999) (decided under former O.C.G.A. § 16-13-49).

State was required to perfect service of complaint of forfeiture within 60 days of the seizure of property. Griffin v. State, 250 Ga. App. 93, 550 S.E.2d 138 (2001) (decided under former O.C.G.A. § 16-13-49).

State properly initiated a forfeiture action under former O.C.G.A. § 16-13-49 because: (1) it posted notice at the courthouse, served the parties with a copy, and published the notice in a local newspaper for three weeks running; and (2) the notice specified the date and extent of the seizure and asserted that the seized property was used or intended for use to facilitate a violation of Georgia's anti-drug statutes. Germain v. State of Ga., 269 Ga. App. 846, 605 S.E.2d 441 (2004) (decided under former O.C.G.A. § 16-13-49).

Dismissal of complaint.

- Once the trial court dismissed the state's complaint, there was no action pending, and the state's amendment of the complaint was ineffective. Franklin v. State, 227 Ga. App. 30, 488 S.E.2d 109 (1997) (decided under former O.C.G.A. § 16-13-49).

After dismissal of a forfeiture proceeding by the state, all that remained pending was a claim of ownership which was uncontested because it was not shown that the property was evidence or subject to future forfeiture proceedings, and the property was properly returned to the claimant. Boone v. Sheriff of Lowndes County, 232 Ga. App. 601, 502 S.E.2d 535 (1998) (decided under former O.C.G.A. § 16-13-49).

Contents of claim in response to notice of seizure.

- When an interest holder was responding to a notice of seizure authorized by former O.C.G.A. § 16-13-49(n)(1), the claim to property subject to forfeiture must satisfy not only the general pleading rules applicable to all civil actions, but must also specifically set forth with particularity the elements enumerated at former § 16-13-49(n)(4). Jackson v. State, 218 Ga. App. 437, 461 S.E.2d 594 (1995); Roberts v. State, 226 Ga. App. 824, 487 S.E.2d 667 (1997) (decided under former O.C.G.A. § 16-13-49).

Even though more details could have been included, a claim in response to a notice of seizure of a savings passbook adequately set forth the required elements where it stated the sources of the money in the account, denied that the money was contraband, and stated that the funds were not in close proximity to any property which was subject to forfeiture. Harris v. State, 222 Ga. App. 267, 474 S.E.2d 201 (1996) (decided under former O.C.G.A. § 16-13-49).

Failure to file answer.

- Use of the word "may" in former O.C.G.A. § 16-13-49(o)(3) was only permissive insofar as the word recognized that a claimant cannot be forced to claim an interest in seized property; however, a claimant who failed to file an answer must suffer the consequence of forfeiting the claimant's property to the state. Jett v. State, 230 Ga. App. 655, 498 S.E.2d 274 (1998) (decided under former O.C.G.A. § 16-13-49).

If no answer is made within 30 days after service of the summons and complaint, the trial court is required to order the disposition of the property; a hearing is required only when an answer is filed. Wilson v. State, 240 Ga. App. 578, 525 S.E.2d 708 (1999) (decided under former O.C.G.A. § 16-13-49).

The 60-day requirement for holding a hearing is conditioned on the filing of a timely and sufficient answer and, if no answer is filed, no hearing is required, and the court is required to order the disposition of the seized property. Owens v. State, 241 Ga. App. 140, 525 S.E.2d 150 (1999) (decided under former O.C.G.A. § 16-13-49).

Because an accused failed to appear or otherwise file an answer in a condemnation proceeding filed against the accused in connection with the accused's arrest for possession of methamphetamine, and the accused failed to show that the accused's counsel was ineffective in failing to file an answer, the state was properly granted judgment. Walters v. State of Ga., 269 Ga. App. 883, 605 S.E.2d 458 (2004) (decided under former O.C.G.A. § 16-13-49).

Contents of answer.

- Claimant's motion to dismiss the complaint in a forfeiture action was not a responsive pleading in the nature of an answer since it did not raise an assertion that the property was not subject to forfeiture as required by former O.C.G.A. § 16-13-49(o)(3), nor did it contain even a general denial of the averments of the allegations of the complaint as would have satisfied O.C.G.A. § 9-11-8(b). Turner v. State, 213 Ga. App. 309, 444 S.E.2d 372 (1994) (decided under former O.C.G.A. § 16-13-49).

Answer to forfeiture complaint was insufficient when the claimant falsely stated that another person did not have a security interest in the vehicle, failed to state the extent of claimant's own interest, and did not cite any provision of former O.C.G.A. § 16-13-49 relied on in support of claimant's assertion that the vehicle was not subject to forfeiture. Mitchell v. State, 217 Ga. App. 282, 457 S.E.2d 237 (1995).

When the claimant's response alleged sufficient facts within the claimant's personal knowledge, and not merely conclusory allegations, to establish a triable issue as to innocent ownership, a ruling that the claim was procedurally insufficient was vacated and the case remanded to allow the claimant reasonable time to supplement the claimant's response with the material fact of the claimant's acquittal of drug charges. Knodel v. State, 222 Ga. App. 514, 474 S.E.2d 700 (1996) (decided under former O.C.G.A. § 16-13-49).

In a procedure for forfeiture of a vehicle, the claimant's answer was sufficient to meet the pleading requirements of former O.C.G.A. § 16-13-49 when the answer incorporated copies of the certificate of title and the tag registration and included the date of the purchase, the name of the dealership, and information that the car was financed by the seller. Williams v. State, 222 Ga. App. 270, 474 S.E.2d 98 (1996) (decided under former O.C.G.A. § 16-13-49).

Answer by person claiming to be the owner of household furnishings was sufficient even though it failed to indicate when the claimant acquired the items or the identity of their respective transferors; to require such information when an entire complement of household furnishings has been seized would fail to protect the interests of innocent owners. Dennis v. State, 224 Ga. App. 11, 479 S.E.2d 380 (1996) (decided under former O.C.G.A. § 16-13-49).

Claimant's answer to a notice of seizure of currency did not satisfy the requirements of former O.C.G.A. § 16-13-49(n)(4) where it stated simply that the currency "represents money saved by the Claimant from numerous jobs that he has held." Tuggle v. State, 224 Ga. App. 353, 480 S.E.2d 353 (1997) (decided under former O.C.G.A. § 16-13-49).

Answer to forfeiture complaint covering a large number of guns was insufficient because claimant simply stated that claimant had obtained them through lawful means - through inheritance or purchase, or as gifts - without any dates, identity of transferors, or any other circumstances of claimant's acquisition. Morrell v. State, 226 Ga. App. 16, 486 S.E.2d 611 (1997) (decided under former O.C.G.A. § 16-13-49).

Trial court did not err in holding that the claimant's answer did not comply with the strict pleading requirements prescribed in former O.C.G.A. § 16-13-49(n)(4). Serchion v. State, 230 Ga. App. 336, 496 S.E.2d 333 (1998) (decided under former O.C.G.A. § 16-13-49).

Sufficiency of the claimants' answer under former O.C.G.A. § 16-13-49(o)(3) was satisfied when the answer referenced a paragraph in the forfeiture complaint that incorporated a prior consent judgment involving the same property, and the consent judgment designated the claimants as owners of the property in question. Bell v. State, 234 Ga. App. 693, 507 S.E.2d 535 (1998) (decided under former O.C.G.A. § 16-13-49).

Claimant's answer pertaining to the claimant's interest in money claimed to have been earned from house cleaning was not sufficient to meet the pleading requirements of former O.C.G.A. § 16-13-49 when the claimant did not offer any specifics regarding the method of payment for the claimant's work, nor set forth any information regarding the amount of house cleaning the claimant did to earn the money. Dearing v. State, 243 Ga. App. 198, 532 S.E.2d 751 (2000) (decided under former O.C.G.A. § 16-13-49).

Claimant's answer pertaining to the claimant's interest in a rifle, stating that the claimant's father gave the claimant the rifle on a certain date, asserted specific facts of the claimant's ownership, not mere conclusory allegations, and was sufficient to meet the pleading requirements of former O.C.G.A. § 16-13-49. Dearing v. State, 243 Ga. App. 198, 532 S.E.2d 751 (2000) (decided under former O.C.G.A. § 16-13-49).

Property owners' claims, asserting only that their property was not directly or indirectly used or intended for use in violation of Georgia's anti-drug statutes, and that the property was not part of the proceeds of such illegal activity, were not the responsive pleadings required by former O.C.G.A. § 16-13-49(n)(4) because they gave no essential facts about where, how, and from whom the property was obtained; the state had no responsibility to proceed further after the property owners' factually deficient claims were submitted and, thus, the trial court could not reach the property owners' claims regarding the insufficiency of the evidence and did not err in entering an order of disposition on the state's motion. Germain v. State of Ga., 269 Ga. App. 846, 605 S.E.2d 441 (2004) (decided under former O.C.G.A. § 16-13-49).

Trial court properly struck defendant's answer in the state's civil forfeiture action against certain items seized from defendant and others' property pursuant to a search warrant, as defendant's answer merely indicated the source of the funds for obtaining the property, and did not indicate the nature and extent of defendant's interest in the seized property, how defendant had acquired the property, the statutory provision that protected the property from forfeiture, and the relief sought by defendant; further, the answer was not verified, and in the absence of statutory compliance, pursuant to former O.C.G.A. § 16-13-49(o)(3), (5), no hearing was required. Holmes v. State of Ga., 270 Ga. App. 882, 608 S.E.2d 325 (2004) (decided under former O.C.G.A. § 16-13-49).

In an action for in rem forfeiture of an owner's vehicle for purposes of former O.C.G.A. § 16-13-49(o)(3), the vehicle owner's failure to meet the pleadings requirements, including the necessity of verification, meant that a hearing did not have to be held within 60 days pursuant to former § 16-13-49(o)(5). Portee v. State of Ga., 277 Ga. App. 536, 627 S.E.2d 63 (2006) (decided under former O.C.G.A. § 16-13-49).

Claimant's answer was insufficient under former O.C.G.A. § 16-13-49(o)(3) in a civil forfeiture proceeding because while the claimant asserted that the currency at issue was pay from various employers, the answer did not identify each employer, the dates worked, the amounts received, the nature of the claimant's duties, or any other similar information. Gravley v. State of Ga., 285 Ga. App. 691, 647 S.E.2d 372 (2007) (decided under former O.C.G.A. § 16-13-49).

While an answer to an in rem complaint by the owner of a truck seized by the state failed to reference evidence, namely the transferred title, supporting an interest in the truck, but clearly stated that: (1) the interest was in the amount of $5,000; (2) the interest originated through the owner's payment of that amount to the creditor; and (3) the interest continued, the owner's answer set forth the nature and extent of the owner's interest in the property as required by former O.C.G.A. § 16-13-49(o)(3)(C) with sufficient particularity. State of Ga. v. Howell, 288 Ga. App. 176, 653 S.E.2d 330 (2007), cert. denied, No. S08C0454, 2008 Ga. LEXIS 224 (Ga. 2008) (decided under former O.C.G.A. § 16-13-49).

In a forfeiture case involving $20,620 found in a footlocker in the home of a drug defendant's grandparent, the grandparent's answer asserting a claim to the cash did not satisfy former O.C.G.A. § 16-13-49. It did not adequately explain how the grandparent had obtained the money in question, which was found in the same room with drugs and with clothing belonging to the grandchild. Edwards v. State of Ga., 290 Ga. App. 467, 659 S.E.2d 852 (2008) (decided under former O.C.G.A. § 16-13-49).

Trial court did not err by striking appellants answer to the state's complaint for forfeiture and dismissing appellants' claims as to some items because the entries did not contain sufficient information to satisfy the pleading requirement under former O.C.G.A. § 16-13-49(o)(3)(D); for those entries there was a blank or no information describing appellants' property interest, and certain additional items were listed with only vague information. Arreola-Soto v. State of Ga., 314 Ga. App. 165, 723 S.E.2d 482 (2012), cert. denied, No. S12C1048, 2012 Ga. LEXIS 593 (Ga. 2012).

Trial court erred in striking appellants' answer to the state's complaint for forfeiture as to certain items because the information appellants provided in the answer was sufficient to plead an interest in the property under former O.C.G.A. § 16-13-49(o)(3)(D); appellants' ownership interest was described with the name of the transferor and a year of purchase. Arreola-Soto v. State of Ga., 314 Ga. App. 165, 723 S.E.2d 482 (2012), cert. denied, No. S12C1048, 2012 Ga. LEXIS 593 (Ga. 2012).

In a forfeiture action, a trial court properly struck the answer of one of the four claimants to the seized property because the answer was insufficient by setting forth only conclusory allegations of ownership. Morgan v. State of Ga., 323 Ga. App. 852, 748 S.E.2d 491 (2013).

Under Georgia law, the sufficiency of an answer to a forfeiture petition must be judged in light of the specific statutory requirements. Furthermore, while a claimant must satisfy each of the pleading requirements contained in former O.C.G.A. § 16-13-49(o)(3), the trial court must consider the claimant's compliance with those requirements in a reasonable manner. Morgan v. State of Ga., 323 Ga. App. 852, 748 S.E.2d 491 (2013).

In a forfeiture action, a trial court erred by striking three answers from claimants of the seized property because each set forth the nature and extent of their interest in the property, the date and identity of transferors, the circumstances of acquisition, and that they were innocent owners under former O.C.G.A. § 16-13-49(e)(1)(B), though two cited the wrong statute subsection. Morgan v. State of Ga., 323 Ga. App. 852, 748 S.E.2d 491 (2013).

In a civil forfeiture case under former O.C.G.A. § 16-13-49, the trial court erred by granting the State of Georgia's motion to strike the answers of the defendants and thereafter entering an order of disposition and distribution of the seized property because, while the defendants' answer was inartfully drafted and poorly presented, it was sufficient as a whole with attachments to survive a motion to strike. Crimley v. State of Ga., 330 Ga. App. 639, 768 S.E.2d 813 (2015).

Condemnation of two amounts of cash and other personal property was affirmed because the claimant did not include in the answer the date of the transfer of the cash, the identity of the transferor, or the circumstances of the claimant acquiring the cash; thus, the claimant failed to satisfy the specific statutory pleading requirements and the trial court, therefore, did not err by striking the claimant's answer as legally insufficient and by entering a default judgment of forfeiture. Loveless v. State of Ga., 337 Ga. App. 250, 786 S.E.2d 899 (2016).

In a civil in rem forfeiture action, a claimant's answer must be in strict compliance with the special pleading requirements of former O.C.G.A. § 16-13-49(o)(3). A forfeiture action under former § 16-13-49 was a civil proceeding; when the answer did not contain the requisite facts to support the claimant's ownership assertions, the answer did not comply with the statute's specific pleading requirements. Loveless v. State of Ga., 337 Ga. App. 250, 786 S.E.2d 899 (2016).

Under former O.C.G.A. § 16-13-49(o)(3)(D), the answer filed by an owner of property subject to a civil forfeiture proceeding which asserted a claim against the property must set forth: the date, identity of the transferor, and circumstances of the claimant's acquisition of the interest in the property. Loveless v. State of Ga., 337 Ga. App. 250, 786 S.E.2d 899 (2016).

State must respond to answer.

- Because the trial court found the state had failed to prosecute the complaint and had failed to show good cause as to why the hearing should be continued for a second time, the trial court did not err in dismissing the forfeiture complaint on the grounds that no hearing was conducted within 60 days as required by former O.C.G.A. § 16-13-49. State v. Gonzales, 213 Ga. App. 661, 445 S.E.2d 808 (1994) (but see Alford v. State, 208 Ga. App. 595, 431 S.E.2d 393 (1993)) (decided under former O.C.G.A. § 16-13-49).

Dismissal of a forfeiture proceeding was not required where the state attempted to schedule a hearing 43 days after service of the complaint, and a continuance beyond the 60-day period was caused by the court's crowded calendar. Hinton v. State, 224 Ga. App. 49, 479 S.E.2d 424 (1996) (decided under former O.C.G.A. § 16-13-49).

Refusal to answer alleging self incrimination.

- Considerable authority that in a civil forfeiture action, the court may as a matter of law draw inferences from a property claimant's invocation of the right against self-incrimination, and such inferences may constitute admissions unfavorable to them; the burden is on the individual claiming the self incrimination privilege to state the general reason for their refusal to answer and to specifically establish that a real danger of incrimination existed with respect to each question. Loveless v. State of Ga., 337 Ga. App. 250, 786 S.E.2d 899 (2016).

Attachment of deed to correct deficiencies in answer.

- Claimants in a forfeiture action corrected any deficiencies in their answer when the claimants filed an amended answer that incorporated by reference a recorded warranty deed, which provided necessary information and corrected the lack of verification by one of the claimants. Bell v. State, 234 Ga. App. 693, 507 S.E.2d 535 (1998) (decided under former O.C.G.A. § 16-13-49).

Amendment to correct error in filing answer.

- When the failure to file a legally sufficient answer under former O.C.G.A. § 16-13-49(o)(3) was clearly the result of a mistake, an amendment to correct the mistake should have been allowed. Lee v. State, 225 Ga. App. 733, 484 S.E.2d 777 (1997) (decided under former O.C.G.A. § 16-13-49).

Since the claimant contesting the forfeiture of property was authorized to amend claimant's answer to a forfeiture complaint, the court erred in granting the state's motion to strike the amendment. Jackson v. State, 231 Ga. App. 320, 498 S.E.2d 159 (1998) (decided under former O.C.G.A. § 16-13-49).

An amended answer could relate back to a timely-filed but insufficient initial answer. Rojas v. State, 269 Ga. 121, 498 S.E.2d 735 (1998) (decided under former O.C.G.A. § 16-13-49).

Defendant waived the issue of whether the trial court improperly forbade amending defendant's answer by failing to take any action to amend the answer for almost 30 days before the court's order was entered, despite defendant's ability to do so as a matter of right. Waters v. State, 239 Ga. App. 897, 522 S.E.2d 493 (1999) (decided under former O.C.G.A. § 16-13-49).

Trial court did not abuse the court's discretion by striking the claimants' answers to the complaint in a forfeiture proceeding because the claimants were permitted by law to amend the claimants answers to correct the lack of verification, but never did so and although the claimants claim that the trial court failed to afford the claimants an opportunity to amend the claimants' pleadings, the claimants failed to show that the trial court refused to consider such an amendment or did anything to preclude or bar the filing thereof. Howard v. State of Ga., 321 Ga. App. 881, 743 S.E.2d 540 (2013).

Answer begins running of 60-day period.

- The 60-day time period in former O.C.G.A. § 16-13-49(o)(5), within which the state was to hold a hearing on the issue of forfeiture, did not commence to run until the filing of a sufficient answer, as determined by the requirements of former § 16-13-49(o)(3) prescribing what must be set forth in the answer. State v. Alford, 264 Ga. 243, 444 S.E.2d 76 (1994) (decided under former O.C.G.A. § 16-13-49).

When the defendant's answer did not comply with the specific pleading requirements of former O.C.G.A. § 16-13-49(o)(3), it was insufficient to commence the 60-day time period for holding a hearing; reversing in part State v. Adams, 212 Ga. App. 309, 444 S.E.2d 372 (1994). State v. Adams, 264 Ga. 842, 452 S.E.2d 117 (1995) (decided under former O.C.G.A. § 16-13-49).

Verification of answer.

- Answers including verifications signed under oath before a notary public satisfied the requirements of former O.C.G.A. § 16-13-49(o)(3). Dearing v. State, 243 Ga. App. 198, 532 S.E.2d 751 (2000) (decided under former O.C.G.A. § 16-13-49).

Vehicle owner failed to sufficiently support the claim that, while incarcerated, the owner was denied access to legal information and to an individual who would notarize an answer to the state's civil in rem forfeiture proceeding; it was not error to deny a continuance in order to have the answer verified, as required by former O.C.G.A. § 16-13-49(o)(3), or in striking the owner's answer. Portee v. State of Ga., 277 Ga. App. 536, 627 S.E.2d 63 (2006) (decided under former O.C.G.A. § 16-13-49).

Legally insufficient answer tolls 60-day period.

- State's forfeiture complaint did not have to be held within the 60-day deadline imposed by former O.C.G.A. § 16-13-49 since the claimant's answer was legally insufficient when the claimant's verification was not executed under penalty of perjury, and the complaint did not satisfy the specific pleading requirements as required to substantiate claimant's claims of ownership of the seized property. State v. Miller, 234 Ga. App. 650, 507 S.E.2d 521 (1998) (decided under former O.C.G.A. § 16-13-49).

Time period of former O.C.G.A.

§ 16-13-49(h)(2). - By failing to request the return of seized currency prior to the entry of judgment, the owners were precluded from asserting a claim to the property, even though the state did not file its complaint for civil forfeiture within 60 days after the seizure. Yoder v. State, 211 Ga. App. 226, 438 S.E.2d 226 (1993) (decided under former O.C.G.A. § 16-13-49).

Actual date of the seizure is not counted for purposes of determining the running of the 60-day limitation period. Nash v. State, 243 Ga. App. 800, 534 S.E.2d 492 (2000) (decided under former O.C.G.A. § 16-13-49).

Time provisions.

- Time provisions of former O.C.G.A. § 16-13-49(n) operate independently of the 60-day requirement of former § 16-13-49(h)(2) and provide an alternative procedure for cases which involve personal property with a value of $25,000 or less. If the provisions of former subsection (n) are followed, the 60-day period outlined in former paragraph (h)(2) may be extended. Robinson v. State, 209 Ga. App. 446, 433 S.E.2d 707 (1993); State v. Profitt, 213 Ga. App. 270, 444 S.E.2d 356 (1994) (decided under former O.C.G.A. § 16-13-49).

In the forfeiture complaint, described in former O.C.G.A. § 16-13-49(o)(1), the state was not required to plead essential facts. Hinton v. State, 224 Ga. App. 49, 479 S.E.2d 424 (1996) (decided under former O.C.G.A. § 16-13-49).

Hearing on in rem proceedings.

- Requirement of former O.C.G.A. § 16-13-49(o)(5) that a hearing be held within 60 days of service of a complaint was mandatory, not directory. Henderson v. State, 205 Ga. App. 542, 422 S.E.2d 666 (1992), aff'd, 263 Ga. 508, 436 S.E.2d 209 (1993); State v. Henderson, 263 Ga. 508, 436 S.E.2d 209 (1993); Blanks v. State, 240 Ga. App. 175, 522 S.E.2d 770 (1999); State v. Carter, 244 Ga. App. 560, 536 S.E.2d 230 (2000); Griffin v. State, 250 Ga. App. 93, 550 S.E.2d 138 (2001).

Failure to make findings in response to excessiveness argument.

- In an in rem civil forfeiture action, a trial court erred by ordering the defendant's truck forfeited without making findings of fact and conclusions of law on the record as to whether the court considered the mandatory guidelines set forth in case law as to whether the forfeiture was excessive. Buchanan v. State of Ga., 319 Ga. App. 525, 737 S.E.2d 321 (2013).

In a civil in rem forfeiture action, the trial court erred in entering an order granting the forfeiture because the record did not indicate whether the trial court considered whether the forfeiture was constitutionally excessive under the Eighth Amendment as the trial court did not make findings of fact and conclusions of law on the record as required by the case law. Mikell v. State of Ga., 329 Ga. App. 830, 766 S.E.2d 233 (2014).

Continuance inappropriate.

- It was error to grant a continuance to the state where the state failed to comply with the statutory time requirements applicable to the hearing on a forfeiture complaint and where the only "cause" for granting the continuance was the claimant's refusal to go forward with a hearing about which they had prior notice. Jackson v. State, 212 Ga. App. 340, 441 S.E.2d 811 (1994) (decided under former O.C.G.A. § 16-13-49).

Continuance appropriate.

- Trial court did not abuse the court's discretion in granting the State of Georgia's motion for a continuance beyond the 60-day limit of a hearing in a civil forfeiture action in order that the state would have more time to perfect service on a second claimant so that one forfeiture proceeding could be held to resolve the matter as to all potential claimants; such constituted good cause for a continuance pursuant to former O.C.G.A. § 16-13-49(o)(5). State of Ga. v. Richardson, 276 Ga. App. 784, 625 S.E.2d 52 (2005) (decided under former O.C.G.A. § 16-13-49).

Trial court required to give notice of order denying application to recover seized currency.

- In an application to recover seized currency under former O.C.G.A. § 16-13-49(q)(4), a trial court erred in denying the owner's motion to set aside the order denying the application without making the finding required by O.C.G.A. § 15-6-21(c) as to whether the owner or the owner's counsel had received notice of the order. Remand was required. Grant v. State, 302 Ga. App. 739, 691 S.E.2d 623 (2010) (decided under former O.C.G.A. § 16-13-49).

Former O.C.G.A. § 16-13-49 was a special statutory proceeding which must be strictly construed and complied with, and as such, not all provisions of the Civil Practice Act apply including O.C.G.A. § 9-11-55, the default judgment statute. Fulton v. State, 183 Ga. App. 570, 359 S.E.2d 726 (1987) (decided under former O.C.G.A. § 16-13-49).

Dismissal for failure to respond appropriate.

- Uniform Superior Court Rule 14 provides for dismissal of a pleading (not a final adjudication on the merits) "where appropriate" for failure to respond to a calendar call. Because a proceeding for forfeiture is a special statutory proceeding to which default is not applicable, this would not be "appropriate." Fulton v. State, 183 Ga. App. 570, 359 S.E.2d 726 (1987) (decided under former O.C.G.A. § 16-13-49).

Procedures for opening default as a matter of right under O.C.G.A. § 9-11-55(a) were applicable, pursuant to O.C.G.A. § 9-11-81, in forfeiture actions under former O.C.G.A. § 16-13-49. Ford v. State, 271 Ga. 162, 516 S.E.2d 778 (1999), reversing Ford v. State, 235 Ga. App. 755, 509 S.E.2d 734 (1998) and overruling State v. Britt Caribe, Ltd., 154 Ga. App. 476, 268 S.E.2d 702 (1980) (decided under former O.C.G.A. § 16-13-49).

Dismissal of an appeal was not justified when a losing party in a drug-related forfeiture proceeding failed to take affirmative action to prevent enforcement of the complained-of judgment prior to the expiration of the 30-day period for filing a notice of appeal. State v. Vurgess, 182 Ga. App. 544, 356 S.E.2d 273 (1987) (decided under former O.C.G.A. § 16-13-49).

Dismissal of appeal denied when notice timely.

- In a civil forfeiture proceeding, the state's motion to dismiss a claimant's appeal was denied since the claimant's notice of appeal was timely filed within 30 days following the entry of the order of distribution. Weaver v. State, 299 Ga. App. 718, 683 S.E.2d 361 (2009), cert. denied, No. S10C0024, 2010 Ga. LEXIS 128 (Ga. 2010) (decided under former O.C.G.A. § 16-13-49).

It was error to enter protective order suspending discovery indefinitely in a forfeiture condemnation case based on statements of the district attorney which were conclusional and bereft of facts. Christopher v. State, 185 Ga. App. 532, 364 S.E.2d 905 (1988) (decided under former O.C.G.A. § 16-13-49).

In petitions for condemnation, district attorney's verification that allegations are true and correct to the best of the district attorney's knowledge and belief is a proper verification "by a duly authorized agent of the state." Chester v. State, 168 Ga. App. 618, 309 S.E.2d 897 (1983) (decided under former O.C.G.A. § 16-13-49).

Substantial compliance sufficed.

- Consistent with former O.C.G.A. § 16-13-49(z), where the state amended its complaint to include the requisite verification and, therefore, substantially complied with that section, the trial court did not err in failing to grant plaintiff's motion to dismiss. McMichen v. State, 209 Ga. App. 169, 433 S.E.2d 92 (1993) (decided under former O.C.G.A. § 16-13-49).

Document insufficient.

- Document filed by claimant was not sufficient for the purpose of meeting the 30-day requirement for the filing of claims in former O.C.G.A. § 16-13-49(n). State v. Cannon, 214 Ga. App. 897, 449 S.E.2d 519 (1994) (decided under former O.C.G.A. § 16-13-49).

Failure of claim filed.

- Failure of purported claim filed rendered it ineffective as a trigger to require the district attorney to file a complaint under former O.C.G.A. § 16-13-49(n)(5) in response to it. State v. Cannon, 214 Ga. App. 897, 449 S.E.2d 519 (1994) (decided under former O.C.G.A. § 16-13-49).

When claimant's answer was deficient under former O.C.G.A. § 16-13-49(n), the trial court could not reach the claimant's claims regarding the sufficiency of the evidence and did not err in entering an order of forfeiture. Greene v. State, 220 Ga. App. 292, 469 S.E.2d 428 (1996).

To raise a valid double jeopardy claim based on an earlier in rem forfeiture, a defendant must first file an effective answer claiming an interest in the property forfeited. Eaton v. State, 220 Ga. App. 578, 469 S.E.2d 740 (1996) (decided under former O.C.G.A. § 16-13-49).

Hearsay information from informant allowed into evidence.

- Trial court did not err in allowing hearsay testimony into evidence, i.e., information from an informant which eventually led to obtaining a search warrant for the defendant's property. Rabern v. State, 221 Ga. App. 874, 473 S.E.2d 547 (1996), remanded, 231 Ga. App. 84, 497 S.E.2d 631 (1998) (decided under former O.C.G.A. § 16-13-49).

Criminal prosecution not barred by double jeopardy.

- Civil forfeiture proceeding in a drug case was not a criminal prosecution for purposes of double jeopardy. Sutton v. State, 223 Ga. App. 721, 478 S.E.2d 910 (1996); Murphy v. State, 219 Ga. App. 474, 465 S.E.2d 497 (1995), aff'd, 267 Ga. 120, 475 S.E.2d 907 (1996); Rojas v. State, 226 Ga. App. 688, 487 S.E.2d 455 (1997); Cuellar v. State, 230 Ga. App. 203, 496 S.E.2d 282 (1998) (decided under former O.C.G.A. § 16-13-49).

Proving weight of cocaine.

- Evidence that a 1.8-gram sample tested "positive" for cocaine did not meet the state's burden of proving that the contraband involved more than a gram of cocaine. State v. Foote, 225 Ga. App. 222, 483 S.E.2d 628 (1997) (decided under former O.C.G.A. § 16-13-49).

Because evidence established probable cause that defendant possessed cocaine with the intent to distribute, it was unnecessary for the state to establish possession of more than one gram of cocaine merely because defendant had pled guilty to possession of cocaine rather than possession with intent to distribute. Wilson v. State, 240 Ga. App. 578, 525 S.E.2d 708 (1999) (decided under former O.C.G.A. § 16-13-49).

Evidence that a seized substance tested positive for cocaine and that it weighed 6.8 grams was insufficient to show that the substance constituted more than one gram of cocaine because it was not tested for purity. Bell v. State, 249 Ga. App. 296, 548 S.E.2d 35 (2001) (decided under former O.C.G.A. § 16-13-49).

In a forfeiture proceeding, expert testimony that 1.2 grams of cocaine were seized from defendant's vehicle was sufficient to support the trial court's finding that more than one gram of cocaine was involved in the case. Furthermore, it was not necessary to prove the purity of the cocaine seized from defendant's vehicle as such a showing was not required under former O.C.G.A. § 16-13-49(e)(2) because the statute specifically referenced "mixtures." Turner v. State of Ga., 265 Ga. App. 40, 592 S.E.2d 864 (2004) (decided under former O.C.G.A. § 16-13-49).

Automatic stay.

- Pending civil forfeiture action against the property of bankruptcy debtors' estate was subject to automatic stay, notwithstanding the "police or regulatory power" stay exception of 11 U.S.C. § 362(b). In re Bell, 215 Bankr. 266 (Bankr. N.D. Ga. 1997) (decided under former O.C.G.A. § 16-13-49).

Determining whether a forfeiture is excessive requires the trial court to consider Thorp v. State, 264 Ga. 712, 450 S.E.2d 416 (1994), and to make findings on the three factors required by that decision. Salmon v. State, 249 Ga. App. 591, 549 S.E.2d 421 (2001) (decided under former O.C.G.A. § 16-13-49).

Evidence insufficient for forfeiture.

- Because it was determined that a parcel of land which contained defendant's residence was subject to forfeiture, but the state failed to prove which of the parcels described in the complaint contained the residence, the evidence was insufficient to support forfeiture. Stancil v. State, 230 Ga. App. 240, 495 S.E.2d 870 (1998) (decided under former O.C.G.A. § 16-13-49).

Trial court could not order the forfeiture of a piece of property and thereafter receive evidence in order to determine which piece of property the court had ordered forfeited. Stancil v. State, 230 Ga. App. 240, 495 S.E.2d 870 (1998) (decided under former O.C.G.A. § 16-13-49).

Evidence other than confidential informant's testimony was ample.

- Trial court's finding that, except for the description the confidential informant gave of the vehicle and occupants, no other evidence was presented, was error as a matter of fact since there was an ample amount of other evidence to establish the informant's reliability and basis of knowledge. State v. Tucker, 242 Ga. App. 3, 528 S.E.2d 523 (2000) (decided under former O.C.G.A. § 16-13-49).

Failure to show harm.

- When the claimant did not show how the claimant was harmed by the state's mere recitation in its forfeiture notice of the applicable provision for filing answers, without expressly informing the claimant of the 30-day period within which a claim must be submitted, the trial court did not err by failing to dismiss the state's notice. Serchion v. State, 230 Ga. App. 336, 496 S.E.2d 333 (1998) (decided under former O.C.G.A. § 16-13-49).

Dismissal not appropriate even though state filed complaint late.

- Claimant was not entitled to dismissal of a former O.C.G.A. § 16-13-49(n) forfeiture action, even though the complaint was not timely filed by the state, because the claimant's remedy - return of the car pending further forfeiture proceedings - served no useful purpose since a hearing on the merits of the forfeiture claim was pending when the claimant filed the motion. Smith v. State, 301 Ga. App. 870, 690 S.E.2d 208 (2010) (decided under former O.C.G.A. § 16-13-49).

Extent of property subject to forfeiture.

- Legislature did not intend that all of the property on which a drug violation occurred was subject to forfeiture. State v. Wilbanks, 208 Ga. App. 422, 430 S.E.2d 668 (1993) (decided under former O.C.G.A. § 16-13-49).

Seized property cannot be assigned to a third party.

- Condemnee's attempt to assign property seized after a civil forfeiture action is against legislative intent because the legislature did not intend that property owners of seized property be allowed to execute a post-seizure assignment of that property to a third party. Allmond v. State, 202 Ga. App. 902, 415 S.E.2d 924 (1992) (decided under former O.C.G.A. § 16-13-49).

Property improperly seized.

- Forfeiture order for property seized during a search of defendant's home was reversed as there were no exigent circumstances justifying a warrantless entry into defendant's home after drugs, drug-related items, and a weapon were found in defendant's car during a traffic stop, even though defendant did not end a cell phone call immediately as instructed by a police officer; the state did not show that the warrantless entry was required to prevent the destruction of contraband or that securing the home until a warrant could be obtained was not sufficient. Curry v. State, 271 Ga. App. 672, 610 S.E.2d 635 (2005) (decided under former O.C.G.A. § 16-13-49).

Abandoned cocaine properly seized.

- After law officers observed the defendant throw a paper napkin containing a quantity of cocaine from a car, defendant affirmatively abandoned the cocaine by throwing the cocaine from the vehicle as the officers approached, and placed the cocaine within plain view on the public highway. Since neither abandoned property nor items in plain view of law enforcement officers who are where the officers have a right to be can be the subject of a motion to suppress when the abandonment of the evidence and the simultaneous placing of the evidence in plain view occurs during the course of a legal stop, the trial court erred in granting the defendant's motion to suppress. State v. Howell, 180 Ga. App. 449, 349 S.E.2d 476 (1986) (decided under former O.C.G.A. § 16-13-49).

Pursuit and seizure found reasonable.

- Once law enforcement officers made one unsuccessful attempt to apprehend a car and the car's driver as the car left the scene of an earlier narcotic "buy" and when defendant came to the parked vehicle while officers had the car under observation as the officers awaited the arrival of paperwork authorizing seizure of the car, it became necessary, once authorization to make a warrantless seizure was received, to devise a practical means of seizing the car (and the car's driver) before the car left the jurisdiction, calling for a marked police car, equipped with lights and sirens, to effect the actual pursuit and seizure was reasonable, and the state had probable cause to effect a seizure of the vehicle. State v. Howell, 180 Ga. App. 449, 349 S.E.2d 476 (1986) (decided under former O.C.G.A. § 16-13-49).

There was substantial compliance with former O.C.G.A. § 16-13-49 after the supervisor of the seizing officer, rather than the seizing officer personally, signed the letter notifying the district attorney of the seizure. State v. Battise, 177 Ga. App. 583, 340 S.E.2d 240 (1986) (decided under former O.C.G.A. § 16-13-49).

Seizure not pursuant to judicial process.

- Since a Georgia county investigator did not take possession of a vehicle pursuant to judicial process, but simply took the vehicle from the custody of the Tennessee authorities, who had allegedly seized the vehicle pursuant to a search warrant; although former O.C.G.A. § 16-13-49 allowed for the seizure of property without benefit of judicial process under certain specified circumstances, reliance on the search warrant exception was misplaced because the Georgia officials did not seize the vehicle under the authority of the Tennessee warrant and also because there was not evidence to support the allegation that the seizure of the vehicle was authorized by the Tennessee warrant, and reliance on the "probable cause" exception was also misplaced, as that provision clearly did not purport to authorize Georgia law enforcement officers to seize property located outside of the state, nor, in any event, would such authorization be of any legal effect. Morrow v. State, 186 Ga. App. 615, 367 S.E.2d 854 (1988) (decided under former O.C.G.A. § 16-13-49).

Reasonable suspicion found for Terry stop thereby allowing forfeiture.

- Civil forfeiture order was affirmed and suppression motion was properly denied as drugs were found in defendant's possession after an arrest following a Terry stop as the officer had a reasonable suspicion of criminal activity where the officer had been advised of defendant's banishment, which defendant acknowledged to be violating; the officer was charged with enforcing court orders and, although the banishment was illegal, the order had not been challenged at the time of the Terry stop. Sanders v. State, 259 Ga. App. 422, 577 S.E.2d 94 (2003) (decided under former O.C.G.A. § 16-13-49).

In an in rem forfeiture case in which: (1) the federal government lawfully seized the currency under 18 U.S.C. § 981(b)(2)(A)-(C) since the search and seizure of a van's contents were lawful under the Fourth Amendment; (2) the seizure was lawful under former O.C.G.A. § 16-13-49(e)(2); and (3) the claimant argued that the federal government did not have standing to initiate the forfeiture proceeding because Georgia did not lawfully seize the currency, the claimant's argument failed. United States v. $ 175,722.77, in United States Currency, F.3d (11th Cir. 2007)(Unpublished) (decided under former O.C.G.A. § 16-13-49).

Forfeiture of funds recovered from the owner's vehicle was proper as the officer was authorized to conduct a brief investigative stop after observing illegally tinted windows, the search was proper after the officer observed that the owner was nervous, a strong odor of air freshener was coming from the vehicle, and a drug dog alerted, and the determination that the currency was used or intended for use in a drug transaction was supported by expert testimony as to the bundling of large amounts of cash, the use of multiple cell phones by those in the drug trade, and the drug dog alert indicating that a controlled substance had recently been in the car. Mordica v. State of Ga., 319 Ga. App. 149, 736 S.E.2d 153 (2012) (decided under former O.C.G.A. § 16-13-49).

Law enforcement officers.

- Former O.C.G.A. § 16-13-49(j) did not apply to a law enforcement officer who, in the performance of the officer's official duty, supplied information leading to the seizure of property which the state may cause to be forfeited under that section. Palmer v. State, 250 Ga. 219, 297 S.E.2d 22 (1982).

Property need only fall into one subsection (d) category.

- State need only prove that the property as to which forfeiture was sought fell within one of the six categories listed in former O.C.G.A. § 16-13-49(d) in order to prevail. Pitts v. State, 207 Ga. App. 606, 428 S.E.2d 650 (1993) (decided under former O.C.G.A. § 16-13-49).

Company owner of truck could not claim "innocent ownership" because the company offered no evidence to meet the burden of showing by a preponderance of the evidence that, with the exercise of ordinary care, the company could not reasonably have known of defendant's conduct or that the conduct was likely to occur. State v. Tucker, 242 Ga. App. 3, 528 S.E.2d 523 (2000) (decided under former O.C.G.A. § 16-13-49).

In a forfeiture action, a relative failed to prove that the relative was an innocent owner under former O.C.G.A. § 16-13-49(e)(1)(A) of two luxury vehicles seized from a relation, who was arrested for drug violations, as the evidence showed that the relative did not acquire title to the vehicles until after the relation's arrest and, therefore, the relative was merely a "straw man" set up to hold the cars and prevent the seizure. Martin v. State, 291 Ga. App. 902, 663 S.E.2d 307 (2008) (decided under former O.C.G.A. § 16-13-49).

Search of vehicle subject to forfeiture.

- Defendants' vehicle became subject to forfeiture when law enforcement officers witnessed an illegal transaction therein and defendants then had no property right in the vehicle or right to object to its search and seizure. United States v. Major, 915 F. Supp. 384 (M.D. Ga. 1996) (decided under former O.C.G.A. § 16-13-49).

Money found on defendant's person.

- Money found on defendant's person, which was not in close proximity to the areas in which the contraband was found, which was not shown to have directly or indirectly used or intended for use in a manner to facilitate a violation of the Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., and which was not shown to have been subject to forfeiture under any other provision of the Act was not subject to forfeiture. Pitts v. State, 207 Ga. App. 606, 428 S.E.2d 650 (1993) (decided under former O.C.G.A. § 16-13-49).

Proximity of money and contraband close enough.

- Evidence factually established proximity close enough to warrant forfeiture of the money where the $4,010 was located in the cab of the pickup truck, and the contraband was located in the bed of the same pickup truck. State v. Tucker, 242 Ga. App. 3, 528 S.E.2d 523 (2000) (decided under former O.C.G.A. § 16-13-49).

Transaction involving an imitation controlled substance.

- Forfeiture statute did not apply to a transaction involving an imitation controlled substance; reversing State v. White, 210 Ga. App. 876, 437 S.E.2d 826 (1993). White v. State, 264 Ga. 547, 448 S.E.2d 354 (1994) (decided under former O.C.G.A. § 16-13-49).

Impoundment and subsequent inventory search of a vehicle were valid since the vehicle was subject to possible seizure as property used to facilitate illegal drug distribution. Hightower v. State, 249 Ga. App. 495, 548 S.E.2d 473 (2001) (decided under former O.C.G.A. § 16-13-49).

Vehicles properly forfeited.

- Denial of the owner's motion to suppress was proper since the police officer was rightfully on the premises to ask questions about an anonymous letter; the owner's vehicles were properly forfeited because they facilitated, or were in close proximity to, illegal drug activity. Hodge v. State, 257 Ga. App. 203, 570 S.E.2d 666 (2002) (decided under former O.C.G.A. § 16-13-49).

Forfeiture of a pickup truck and a trailer used to commit a burglary was upheld since: (1) the state's burden of proof was "by a preponderance of the evidence" and not "beyond a reasonable doubt" as alleged by the property owner; (2) the state was not required to prove a burglary conviction under O.C.G.A. § 16-7-1, or that charges were even filed; and (3) whether a burglary took place without the owner's knowledge or consent was a fact question to be resolved by the court, which as the trier of fact, was not obligated to believe a witness even if the testimony was uncontradicted. Walker v. State of Ga., 281 Ga. App. 526, 636 S.E.2d 705 (2006) (decided under former O.C.G.A. § 16-13-49).

Lien for towing service.

- Because former O.C.G.A. § 16-13-49 had no clear and explicit terms providing a lien for towing and storing a vehicle at the request of a law enforcement agency, it provided the operator of a towing business no lien for the services. Purser Truck Sales, Inc. v. Horton, 276 Ga. App. 17, 622 S.E.2d 405 (2005) (decided under former O.C.G.A. § 16-13-49).

Security interest not barred.

- After a father sold a truck to the son in exchange for the son's personal pledge and acknowledgement of a security interest in the truck, although a security interest or lien was never filed, the trial court erred in the state's forfeiture proceeding in denying enforcement of the father's security interest after the truck was seized due to the son's possession of drugs, as the father's evidence that the father had no actual or constructive knowledge of the son's illegal activities was uncontradicted; the fact that the security interest was never perfected did not bar the father's assertion of the interest or the enforcement thereof pursuant to former O.C.G.A. § 16-13-49(e)(1). Tolliver v. State of Ga., 276 Ga. App. 755, 625 S.E.2d 403 (2005) (decided under former O.C.G.A. § 16-13-49).

Editor's notes.

- In light of the similarity of the statutory provisions, opinions rendered under former O.C.G.A. § 16-13-49 are included in the opinions under this Code section.

Full-time peace officer not entitled to proceeds.

- Full-time peace officer who, while acting within the scope of the officer's official duties, played a part in the seizure of property which was later forfeited under former O.C.G.A. § 16-13-49 was not entitled to receive a portion from the proceeds of the sale of such property pursuant to former O.C.G.A. § 16-13-49(j). 1983 Op. Att'y Gen. No. U83-14 (decided under former O.C.G.A. § 16-13-49).

Payment of salary of prosecuting attorney prohibited.

- Former O.C.G.A. § 16-13-49(u)(4)(D)(i) and (ii) prohibited the use of the proceeds of forfeited and condemned property to pay the salary of the Executive Director/Prosecuting Attorney of the Multi-Agency Narcotics Squad in a circuit. 1992 Op. Att'y Gen. No. U92-22 (decided under former O.C.G.A. § 16-13-49).

National Guard was eligible to share in proceeds of drug-related forfeitures with respect to statutorily authorized activities. 1995 Op. Att'y Gen. No. 95-29 (decided under former O.C.G.A. § 16-13-49).

Georgia Aviation Authority was not a law enforcement agency within the meaning of former O.C.G.A. § 16-13-49 for the purpose of sharing in forfeiture funds. 2011 Op. Att'y Gen. No. 11-3 (decided under former O.C.G.A. § 16-13-49).

Payment of salaries of law enforcement officers.

- Under O.C.G.A. §§ 16-13-48.1 and former16-13-49(u)(4)(D)(i), federal forfeiture funds may not be used to pay the salaries of law enforcement officers including overtime pay and other benefits. 2002 Op. Att'y Gen. No. 2002-5 (decided under former O.C.G.A. § 16-13-49).

Am. Jur. 2d.

- 25 Am. Jur. 2d, Drugs and Controlled Substances, § 221 et seq.

C.J.S.

- 28 C.J.S., Drugs and Narcotics, §§ 233, 235 et seq. 79 C.J.S., Searches and Seizures, § 226.

U.L.A.

- Uniform Controlled Substances Act (U.L.A.) § 505.

ALR.

- Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

Forfeiture of money to state or local authorities based on its association with or proximity to other contraband, 38 A.L.R.4th 496.

Necessity of conviction of offense associated with property seized in order to support forfeiture of property to state or local authorities, 38 A.L.R.4th 515.

Forfeitability of property held in marital estate under Uniform Controlled Substances Act or similar statute, 84 A.L.R.4th 620.

Validity and construction of provisions of Uniform Controlled Substances Act providing for forfeiture hearing before law enforcement officer, 84 A.L.R.4th 637.

Real property as subject of forfeiture under Uniform Controlled Substances Act or similar statutes, 86 A.L.R.4th 995.

Timeliness of institution of proceedings for forfeiture under Uniform Controlled Substances Act or similar statute, 90 A.L.R.4th 493.

Effect of forfeiture proceedings under Uniform Controlled Substances Act or similar statute on lien against property subject to forfeiture, 1 A.L.R.5th 317.

Forfeitability of property, under Uniform Controlled Substances Act or similar statute, where property or evidence supporting forfeiture was illegally seized, 1 A.L.R.5th 346.

Application of forfeiture provisions of Uniform Controlled Substances Act or similar statute where drugs were possessed for personal use, 1 A.L.R.5th 375.

Forfeitability of property under Uniform Controlled Substances Act or similar statute where amount of controlled substances seized is small, 6 A.L.R.5th 652.

Delay in setting hearing date or in holding hearing as affecting forfeitability under Uniform Controlled Substances Act or similar statute, 6 A.L.R.5th 711.

Validity, construction, and application of state or local law prohibiting maintenance of vehicle for purpose of keeping or selling controlled substances, 31 A.L.R.5th 760.

Propriety of civil or criminal forfeiture of computer hardware or software, 39 A.L.R.5th 87.

Burden of proof and presumptions in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law, 104 A.L.R.5th 229.

Evidence considered in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law - Proximity of asset to drugs, paraphernalia, or records, 115 A.L.R.5th 403.

Evidence considered in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law - Odor of drugs, 116 A.L.R.5th 325.

Evidence considered in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law - Explanation or lack thereof, 4 A.L.R.6th 113.

Evidence considered in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law - factors other than proximity, explanation, amount, packaging, and odor, 101 A.L.R.6th 1.

Validity, construction, and application of criminal forfeiture provisions of Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCS § 853), 88 A.L.R. Fed. 189.

Seizure or forfeiture of real property used in illegal possession, manufacture, processing, purchase, or sale of controlled substances under § 511(a)(7) of Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCS § 881(a)(7)), 104 A.L.R. Fed. 288.

Who is exempt from forfeiture of drug proceeds under "innocent owner" provision of 21 USCS § 881(a)(6), 109 A.L.R. Fed. 322.

What constitutes establishment of prima facie case for forfeiture of real property traceable to proceeds from sale of controlled substances under § 511(a)(6) of Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCA § 881(a)(6)), 146 A.L.R. Fed. 597.