Carter v. State
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ARKANSAS COURT OF APPEALS
DIVISION II
No.
CA08-1322
ZACHARY COLT CARTER and
SHERRON M. CARTER,
APPELLANTS
Opinion Delivered 29
APRIL 2009
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT,
[NO. CR-08-541-1]
V.
THE HONORABLE WILLIAM A.
STOREY, JUDGE
STATE OF ARKANSAS,
APPELLEE
AFFIRMED
D. P. MARSHALL JR. , Judge
Arguing a denial of due process, the Carters—mother and son—appeal the
circuit court’s order forfeiting their Chevrolet Trailblazer to the Fayetteville Police
Department. Zachary and a group of friends used the vehicle when they burgled an
unfinished hotel. Zachary confessed, and the police seized the Trailblazer. After
Zachary pleaded guilty and was convicted, he and his mother moved to get the
Trailblazer back. The State responded promptly and sought forfeiture in its response.
About a month later, the circuit court held a hearing and heard argument from the
parties. At the end of the hearing, the court said it wanted more time to look at
statutes and gave the parties ten days to file briefs. The Carters and the State filed a
brief. The court then granted the State’s request for forfeiture. Were the Carters
denied due process? U.S. CONST. amend. XIV; ARK. CONST. art. II, § 8.
The process due a citizen before the State may take his or her property depends
on the circumstances presented. Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976);
Sims v. Moser, 373 Ark. 491, 499, ___ S.W.3d ___, ___ (2008). The constitutional
minimum, however, is adequate notice and some kind of a hearing before a neutral
decision-maker. Dusenbery v. U.S., 534 U.S. 161, 167 (2002); Tsann Kuen Enterprises
Co. v. Campbell, 355 Ark. 110, 119, 129 S.W.3d 822, 827 (2003). The Carters argue
that they received neither notice of the forfeiture proceeding nor an opportunity to
be heard. But this record shows both.
The State’s response to the Carters’ motion to return the Trailblazer notified the
Carters that the State sought forfeiture.
In drug-related forfeiture cases, the
prosecuting attorney must file a complaint to start forfeiture proceedings. Ark. Code
Ann. § 5-64-505(g) (Supp. 2007). The forfeiture statutes covering vehicles allegedly
used in committing thefts and burglaries, however, impose no such complaint
requirement. Ark. Code Ann. §§ 5-5-201(a) & 5-5-204(a) (Repl. 2006). The State,
of course, had to file some paper notifying the Carters of its forfeiture request and
asking the court for action. The State’s response sufficed. The State served its
response on the Carters’ lawyer more than a month before the hearing. See Nunley v.
Department of Justice, 425 F.3d 1132, 1139 (8th Cir. 2005) (holding that defendant was
afforded due process when the government sent the forfeiture notice to him in care
of his attorney). The State’s response gave the Carters adequate notice of the forfeiture
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effort.
The Carters also got an opportunity to be heard, orally and in writing. At the
hearing, the parties stipulated to the facts and made full arguments about forfeiture.
Then, at the court’s invitation, they filed post-hearing briefs. The hearing and the
briefing satisfied the Constitutions’ requirement that the citizen have the opportunity
to be heard against the State’s position.
The Carters emphasize that Sherron Carter’s rights as the Trailblazer’s co-owner
were unfairly compromised by the forfeiture. We disagree. “Zachary Colt Carter or
Sherron M. Carter” held title to the Trailblazer. Either owner could transfer title and
divest the other. Warren v. Warren, 273 Ark. 528, 534, 623 S.W.2d 813, 817 (1981).
Zachary could have sold the vehicle, for example, without his mother’s consent or
involvement. The parties stipulated to Zachary’s burglary and theft convictions and
his use of the vehicle in these crimes. Zachary’s actions divested his mother’s interest
in the Trailblazer as surely as if he had sold it. Ark. Code Ann. §§ 5-5-201(a) & 5-5204(a).
Affirmed.
VAUGHT, C.J., and BAKER, J., agree.
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