Motion to Release Seized Property Appeal In Arizona

Appellant argues on appeal that the trial court was obligated to release his property from seizure pursuant to A.R.S. section 13-4308(B) because the state failed to timely initiate forfeiture proceedings. The state admits that it was untimely in initiating forfeiture proceedings, but contends that such delay was harmless in light of the fact that its civil in rem forfeiture complaint was still filed well within the seven-year statute of limitations provided for in section 13-4308(B). The state further notes that appellant had a full and fair opportunity to litigate his claim to the property on the merits and that he does not claim that there was an insufficient factual basis for such forfeiture. The interpretation of a statute is a question of law, which we review de novo. State Comp. Fund v. Super. Ct., 190 Ariz. 371, 374-75, 948 P.2d 499, 502-03 (App. 1997). If the language of a statute is clear and unambiguous, this court must give it effect. Lewis v. Arizona Dep't of Econ. Sec., 186 Ariz. 610, 614, 925 P.2d 751, 755 (App. 1996). In doing so, "we must read the statute as a whole and give meaningful operation to each of its provisions." Ruiz v. Hull, 191 Ariz. 441, 450, P35, 957 P.2d 984, 993 (1998). Section 13-4305(A) (Supp. 1999) governs the seizure of property for forfeiture. Property subject to forfeiture may be seized through court process, including issuance of a seizure warrant, or without court process, such as the initial seizure here, as part of a search incident to arrest. "Seizure for forfeiture" is defined as the seizure of property by a peace officer coupled with an assertion by the seizing agency or an attorney for the state that the property is subject to forfeiture. A.R.S. 13-4301(9) (Supp. 1999). The state has various options available to pursue forfeiture under the statutory scheme once property has been seized for forfeiture, including uncontested civil forfeiture, judicial in rem and in personam forfeiture proceedings, as well as provisional remedies. A.R.S. 13-1409 (1989), -1410, -1411, -1412 (Supp. 1999). Section 13-4308(B) governs the commencement of forfeiture proceedings and provides certain deadlines by which the state must act: If the state fails to initiate forfeiture proceedings against property seized for forfeiture by notice of pending forfeiture within sixty days after its seizure for forfeiture, or fails to pursue forfeiture of such property on which a timely claim has been properly filed by filing a complaint, information or indictment pursuant to 13-4311 or 13-4312 within sixty days after notice of pending forfeiture or, if uncontested forfeiture has been made available, within sixty days after a declaration of forfeiture, whichever is later, such property shall be released from its seizure for forfeiture on the request of an owner or interest holder, pending further proceedings pursuant to this chapter, which shall be commenced within seven years after actual discovery of the last act giving rise to forfeiture. In this case, it is undisputed that the property was seized on June 21, 1997 as part of a search incident to arrest, and that the state did not serve appellant with a notice of seizure and pending forfeiture until March 15, 1998. It is also undisputed that on December 29, 1997, appellant made a request to the trial court for the release of his property from seizure based upon the state's failure to timely initiate forfeiture proceedings pursuant to A.R.S. 13-4308(B). The trial court denied appellant's motion on March 12, 1998, based upon the state's assertion that its failure to initiate forfeiture proceedings was an oversight and that it would commence such proceedings immediately. This ruling, which ignored the literal terms of A.R.S. section 13-4308(B), was error. The language of A.R.S. section 13-4308(B) is clear and unambiguous and we must apply its terms as written. It does not allow the court to excuse the state's failure to timely initiate forfeiture proceedings for "oversight." When the state did not act in a timely fashion, and appellant made a request that the property be released, the trial court was obliged under the statute to release the property from its seizure for forfeiture. ecause the state's subsequent forfeiture complaint relied upon the earlier seizure for forfeiture that should have been vacated by the trial court, those subsequent forfeiture proceedings were invalid. on remand, the trial court must release the property from its seizure for forfeiture.