Don't Miss
Home / Fulltext Opinions / Supreme Court of Virginia / COMMONWEALTH v. WILKS, et al.

COMMONWEALTH v. WILKS, et al.



NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Supreme Court of Virginia.


COMMONWEALTH

v.

WILKS, et al.


June 9, 2000

Record No. 991997

COMMONWEALTH OF VIRGINIA

v.

ALTIMONT WILKS, ET AL.

FROM THE CIRCUIT COURT OF HALIFAX COUNTY

William L. Wellons, Judge

Present: All the Justices


OPINION BY JUSTICE DONALD W. LEMONS

In this appeal of a judgment dismissing
several related forfeiture proceedings, we consider whether the
Commonwealth’s failure to comply with notice of seizure
provisions deprived the circuit court of jurisdiction. Code
? 19.2-386.3(A) states:

If an information has not been filed,
then upon seizure of any property under ? 18.2-249, the
agency seizing the property shall forthwith notify in writing the
attorney for the Commonwealth in the county or city in which the
seizure occurred, who shall, within twenty-one days of receipt
of such notice, file a notice of seizure for forfeiture with the
clerk of the circuit court
. Such notice of seizure for
forfeiture shall specifically describe the property seized, set
forth in general terms the grounds for seizure, identify the date
on which the seizure occurred, and identify all owners and lien
holders then known or of record. The clerk shall forthwith mail
by first-class mail notice of seizure for forfeiture to the last
known address of all identified owners and lien holders. When
property has been seized under ? 18.2-249 prior to filing
an information, then an information against that property shall
be filed within ninety days of the date of seizure or the
property shall be released to the owner or lien holder.[
[1]]

(Emphasis added).

I

On December 19, 1997, and continuing
into the early morning hours of December 20, 1997, law
enforcement officers executed a search warrant for drugs at a
residence in Halifax County that was occupied by Altimont M.
Wilks and Nicole S. Younger, respondents in this forfeiture
proceeding. The officers seized numerous items, including several
thousand dollars in U.S. currency, pistols, electronics
equipment, a scanner, digital scales, a night vision device, and
a bulletproof vest.

Code ? 19.2-386.3(A) requires,
inter alia, that "the agency seizing the property shall
forthwith notify the attorney for the Commonwealth in the county
or city in which the seizure occurred, who shall, within
twenty-one days of receipt of such notice, file a notice of
seizure for forfeiture with the clerk of the circuit court."
On December 23, 1997 Gary Thomas, a special agent with the
Alcohol Beverage Control Board, delivered "Asset Seizure
Reporting Forms" to the office of the regional drug
prosecutor and slid them under the door to the office. The
reporting forms were not seen by the prosecutor until January 5,
1998.

The property subject to seizure was
divided into five separate groupings for the purpose of
forfeiture proceedings and on February 9, 1998 the
Commonwealth’s Attorney filed five notices and five
corresponding informations with the clerk of the Circuit Court of
Halifax County. The Commonwealth asserted in the notices of
seizure for forfeiture that the seized items were used in
substantial connection with, or represented proceeds from, the
manufacture, sale, distribution, or possession with intent to
distribute a controlled substance or marijuana. Respondents and
the Commonwealth agree that the notices of forfeiture were filed
beyond the 21-day period prescribed in Code
? 19.2-386.3(A), and further agree that the informations
filed on the same day were within the 90-day period prescribed by
the same provisions in the Code.

Upon respondents’ motion, the trial
court dismissed the forfeiture proceedings, holding that it had
no jurisdiction over the proceedings because the Commonwealth
failed to file the notices of forfeiture within the 21-day
period. The Commonwealth appeals.

II

The Commonwealth argues that filing of
notices of seizure for forfeiture is a procedural requirement
which does not affect the circuit court’s jurisdiction.
Citing Commonwealth v. Brunson, 248 Va. 347, 448
S.E.2d 393 (1994), the Commonwealth maintains that forfeiture
actions commence and jurisdiction is conferred upon a circuit
court by the filing of an information, and that the informations
against the seized items that are the subject of this appeal were
filed timely.

The respondents, also citing Brunson,
argue that the Commonwealth’s untimely filing of the notices
of seizure for forfeiture deprived the circuit court of
jurisdiction and, therefore, the court was without authority to
proceed in the forfeiture actions. The respondents argue that
"in cases where, as here, the Commonwealth wishes to
immediately seize property rather than wait until an information
has been filed with the Court, [the Commonwealth] must follow both
[filing] requirements in [Code ? 19.2-386.3(A)] to properly
confer jurisdiction unto the Court. To conclude or allow
otherwise would allow the Commonwealth to circumvent the
protections the General Assembly deemed necessary in enacting
these statutes. The notice requirement is there to offer some
degree of protection and oversight upon the actions of the
Commonwealth absent the scrutiny of the Court inherent in the
filing of an Information." We disagree with respondents.

In Brunson, we considered whether
the requirement in Code ? 19.2-386.3(A) that an information
for forfeiture be filed within 90 days of the date the property
is seized affects the court’s jurisdiction. We observed that
our prior decisions interpreting the predecessors to Code
? 19.2-386.3(A) held that the time limitation for filing
the information when property had already been seized was a
jurisdictional requisite, and lack of compliance with such
requirement deprived the circuit court of jurisdiction. 248 Va.
at 349, 448 S.E.2d at 395. We stated in Brunson:

[I]f the Commonwealth wishes to obtain
title to property through the forfeiture provisions of Code
?? 19.2-386.1 through -386.14, it must file an information
for forfeiture within 90 days of the date it physically takes the
property into its possession. Failure to do so deprives a trial
court of jurisdiction to consider the information for forfeiture.

248 Va. at 353, 448 S.E.2d at 397.

Our holding in Brunson is not
implicated here. In this proceeding, we are not concerned with
the question whether the Commonwealth filed the informations
timely. Here, the Commonwealth filed the informations within the
90-day statutory period.
[2] Rather,
our inquiry in this appeal is whether the Commonwealth’s
Attorney’s failure to file the notices of seizure for
forfeiture with the clerk of the circuit court within 21 days
from the date that the agency seizing the property notified the
Commonwealth’s Attorney of such seizure affects the circuit
court’s jurisdiction over forfeiture proceedings.

III

Code ? 19.2-386.3(A) states that
"the attorney for the Commonwealth . . . shall
. . . file a notice of seizure for forfeiture with the
clerk of the circuit court" within 21 days from the date
that the Commonwealth’s Attorney receives notice of the
seizure. In this case, the circuit court held that the word
"shall" in Code ? 19.2-386.3(A) is mandatory and
that the circuit court did not have jurisdiction because of the
Commonwealth’s failure to file the notices of seizure of
forfeiture within 21 days. The Commonwealth argues, and we agree,
that its failure to comply with this requirement does not affect
the circuit court’s jurisdiction because the use of the word
"shall" in Code ? 19.2-386.3(A) is directory, not
mandatory.

We have repeatedly held:

[T]he use of "shall," in a
statute requiring action by a public official, is directory and
not mandatory unless the statute manifests a contrary intent.

Jamborsky v. Baskins, 247 Va.
506, 511, 442 S.E.2d 636, 638 (1994). We applied this
well-established principle in Jamborsky, and held that a
circuit court’s failure to examine certain papers and enter
an order either remanding a case to the juvenile court or
advising the Commonwealth’s Attorney that he may seek an
indictment under former Code ? 16.1-269(E), which governed
the transfer of a juvenile to stand trial as an adult, was a
procedural requirement rather than a prerequisite to
jurisdiction. Id. at 511, 442 S.E.2d at 638-39.

In Commonwealth v. Rafferty, 241
Va. 319, 402 S.E.2d 17 (1991), we construed former Code
? 18.2-268(Q), which provided that an executed certificate
of refusal to take a blood or breath test "shall be attached
to the warrant." We said, "‘[A] statute directing
the mode of proceeding by public officers is to be deemed
directory, and a precise compliance is not to be deemed essential
to the validity of the proceedings, unless so declared by
statute.’" Rafferty, 241 Va. at 324-25, 402
S.E.2d at 20.

In the present case, Code
? 19.2-386.3(A) contains no prohibitory or limiting
language that divests the circuit court of jurisdiction. We
conclude that the requirement for the filing of the notice of
seizure within 21 days is directory and procedural, rather than
mandatory and jurisdictional.

The purpose of this requirement is to
permit the clerk of the circuit court to notify all owners and
lienholders then known or of record that property has been
seized, the reasons for seizure, and the date on which the
seizure has occurred. The requirement of the filing of the notice
of seizure for forfeiture with the clerk of the circuit court
does not affect the power of the circuit court to adjudicate the
forfeiture proceeding, but rather protects the property rights of
the property owners or lienholders who have an interest in the
seized property.

IV

The respondents, relying upon Jenkins
v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991),
argue that the Commonwealth’s failure to comply with the
21-day requirement in Code ? 19.2-386.3(A) deprived the
circuit court of jurisdiction. Jenkins is not applicable
here. According to the record in that case, when the defendant
was arrested, police officers removed and seized $870 from his
pockets. After the defendant had been convicted of possession of
cocaine with intent to distribute and sentenced to ten years
imprisonment and fined $10,000, the Commonwealth requested that
the circuit court forfeit the defendant’s $870 to pay for
fines and costs. The defendant objected, complaining that the
Commonwealth had failed to establish a sufficient nexus between
the money and the defendant’s criminal activity. Id.
at 421, 411 S.E.2d at 841. The circuit court subsequently entered
an order which directed "the Lynchburg Police
Department" to "pay over the sum of $870 which it holds
in the name of [the defendant] to the Clerk" of the circuit
court "as partial payment upon [the defendant’s] fines
and costs in this case." Id. at 422, 411 S.E.2d at
842.

The Court of Appeals reversed the
judgment of the circuit court and stated:

The order of the trial court
confiscating and appropriating defendant’s funds as an
incidence of his criminal prosecution did not comply with
statutory procedure. Most significantly, the court did not act
pursuant to an "information," with attendant rights,
including notice right of trial "independent of any criminal
proceeding." Code ? 19.2-386.10; see Code
?? 19.2-386.1, 386.3 and 386.9.

Id. at 423, 411 S.E.2d at 842. In
Jenkins, the Commonwealth sought to obtain title to
property without commencing a forfeiture proceeding and without
compliance with or reliance upon the forfeiture statutes. Here,
unlike Jenkins, the Commonwealth filed informations
against the property subject to seizure in compliance with Code
? 19.2-386.1.

V

Although we hold that the requirement of
filing notices of seizure for forfeiture is not jurisdictional,
failure to adhere to the notice requirements of the forfeiture
statutes may result in dismissal if due process concerns are not
met. Paraphrasing what we stated in Jamborsky, our
decision is based on the uncontroverted fact that the putative
owners did not suffer any prejudice as a result of the delay in
giving notice. Any determination whether a property owner or lien
holder has suffered prejudice constituting a denial of due
process must be made on a case-by-case basis. See Jamborsky,
247 Va. at 511, 442 S.E.2d at 639. Respondents do not contend
that they were prejudiced in any manner by the untimely filing of
notices of seizure for forfeiture in this case.

VI

Because the delay in providing notice of
seizure for forfeiture involved in this case was not a
jurisdictional defect, the trial court erred in dismissing the
forfeiture actions. Accordingly, we will reverse the judgment of
the trial court and remand the case for further proceedings
consistent with this opinion.

Reversed and remanded.

FOOTNOTES:

[1] Code ? 18.2-249 describes
the types of property subject to seizure in a forfeiture
proceeding involving real or personal property related to illegal
drug transactions.

[2]
We also observe that, contrary to the respondents’
assertions, our decision in Haina v. Commonwealth, 235 Va.
571, 369 S.E.2d 401 (1988), is not relevant in this appeal. In Haina,
we held that a circuit court lacked subject matter jurisdiction
to adjudicate a forfeiture proceeding because the
Commonwealth’s Attorney failed to file an information timely
under former Code ? 4-56, a predecessor statute to
? 19.2-386.1. Id. at 576, 369 S.E.2d at 404. We did
not consider in Haina whether the Commonwealth’s
Attorney’s failure to file the notice of seizure for
forfeiture with the clerk of the court within 21 days from the
date that the agency seizing the property notified the
Commonwealth’s Attorney of such seizure affected the circuit
court’s jurisdiction.

 

 

 

 

 

 

 

Scroll To Top