State of Georgia v. Ellis

156 Ga. App. 779 (1980)

275 S.E.2d 361

STATE OF GEORGIA v. ELLIS.

60730.

Court of Appeals of Georgia.

Argued October 6, 1980.

Decided November 13, 1980.

Rehearing Denied December 9, 1980.

W. Donald Thompson, District Attorney, Graham A. Thorpe, Assistant District Attorney, for appellant.

Fred M. Hasty, for appellee.

SHULMAN, Judge.

The state appeals the grant of defendant's motion to return property that had been seized by the state pursuant to its authority under Code Ann. § 79A-828. We affirm.

1. In view of the fact that the state failed to comply with the provisions of § 79A-828 (e), which require the district attorney (or the drug inspector) to file "[w]ithin 30 days from the date he receives notice of such seizure ... a libel for condemnation of such merchandise ...," we refuse to find any error in the trial court's grant of defendant's motion for return of the seized property.

The state will not be heard to complain of the grant of defendant's motion when it has failed to comply with the specific statutory prerequisites for the forfeiture of seized property.

2. The state complains in its second enumeration of error that the trial court erred in failing to make findings of fact and conclusions of law in the order requiring the return of the property. The motion by which appellee sought the return of the property was filed in the criminal case which resulted, in part, from the arrest pursuant to which the property was seized. Even though appellee had already been sentenced, as the state points out, we agree with appellee that *780 the trial court still had jurisdiction so long as the state continued to hold property seized pursuant to an arrest associated with the case in which appellee's motion was filed. Since, then, the order from which appeal is taken was entered in a criminal case and the state has not shown any requirement for findings of fact and conclusions of law in a criminal action, the second enumeration of error is without merit.

Judgment affirmed. Quillian, P. J., and Carley, J., concur.