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No forfeiture if only one joint owner convicted

Virginia Lawyers Weekly//June 2, 2021

No forfeiture if only one joint owner convicted

Virginia Lawyers Weekly//June 2, 2021

Where the commonwealth seized property allegedly connected with marijuana distribution, the forfeiture action is dismissed. The property is held by a married couple as tenants by the entirety and only one of the tenants was convicted of a marijuana distribution offense.

Undivided interest

Norma and Mark Minnix own the subject property as tenants by the entirety. Mrs. Minnix pleaded guilty to felony conspiracy to distribute more than 5 pounds of marijuana. Mr. Minnix was charge with two felony marijuana crimes. These charges were dismissed nolle prosequi. He was convicted of a non-felony firearm charge.

The commonwealth seeks forfeiture of their home. “Counsel argues that the nature of property held as tenants by the entirety would require a conviction of both tenants in order for such property to be subject to forfeiture.

“Ownership as tenants by the entirety is only available in limited circumstances, between married couples who obtain ownership of real estate. In Virginia, each tenant spouse holds title to the whole, undivided estate. Thus the creditor of a valid debt against only one spouse may not attach the real estate held as tenants by the entirety.

“Here the Commonwealth attempts to forfeit the real estate held as tenants by the entirety when there is a criminal conviction against only one tenant. By analogy to the creditor/debtor analysis alone, the forfeiture action must fail.”

Excessive fine

“Counsel further argues that the forfeiture of this particular property would violate the excessive fines clause under the Virginia and U.S. Constitutions. The uncontradicted evidence presented was that the assessed value of the real estate for calculating property taxes is $126,000. The only lien against the property is a $9,000 credit line. Therefore the equity that the Commonwealth seeks to gain by forfeiture is $117,000.

“The United States Supreme Court has held that ‘a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the defendant’s offense[.]’ …

“The amount of marijuana seized from the Minnix home was slightly over 9 pounds. … At $1,800/pound the value of the marijuana was approximately $16,500.

“Norma Minnix was convicted of possession of 5 pounds of more of marijuana with the intent to distribute. Virginia Code Section 18.2.;256 and 18.2-248.1 provides that the punishment for that offense is a range of 5 to 30 years.

“The Commonwealth entered into a plea agreement with her and she received a 5 year sentence that was suspended and she was placed on probation for 2 years. She received the minimum sentence provided for and that sentence was suspended. There was no fine imposed as the offense for which she was prosecuted does not provide for one.

“The Commonwealth now attempts to have the Minnix home, with equity of $117,000 forfeited when only one of the joint tenants was convicted and the value of the contraband ($16,500) is over $100,000 less than the value of the equity in the home.

“After consideration of all these factors and the relevant case law, the Court finds that the forfeiture action amounts to an excessive fine under the U.S. Constitution and dismisses the action on those grounds as well.”

Commonwealth v. Real Property in Floyd County and Minnix, et al., April 6, 2021, 27th  Cir. Ct. (Fleenor). C. Ryan Hupp, Harry F. Bosen Jr., Jeffrey L. Dorsey for the parties. VLW 021-8-079, 3 pp.

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