RYDER, Acting Chief Judge.
Mr. Wojnar challenges the forfeiture of his Chevrolet Blazer to City of Tarpon Springs on two constitutional grounds. He first asserts that the forfeiture violated the double jeopardy provisions of the Florida and the United States Constitutions. The United States Supreme Court decided this issue adversely to Mr. Wojnar's position in United States v. Ursery, ___ U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). We, therefore, also reject this ground for reversal.
Mr. Wojnar's second argument against the forfeiture is based on the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. The United States Supreme Court held that this clause is applicable to forfeitures of property under 21 U.S.C. § 881 (a)(4). Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Mr. Wojnar's truck was forfeited pursuant to the Florida Contraband Forfeiture Act, sections 932.701 — 932.707, Florida Statutes (Supp. 1992), which is similar to the federal statute at issue in Austin. We have previously held that the Austin analysis is applicable to forfeitures under the Florida Act. In re One 1993 Dodge Intrepid, 645 So.2d 551 (Fla. 2d DCA 1994).
This statute provides for the forfeiture of:
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [controlled substances, their raw material, and equipment used in the manufacture and distribution] . . . .
Section 932.701 (2)(a)5. permits forfeiture of:
Any personal property, including, but not limited to, any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting the commission of, any felony, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of violation of the Florida Contraband Forfeiture Act.
Section 932.702 (3) makes it unlawful:
(3) To use any vessel, motor vehicle, aircraft, other personal property, or real property to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
While the Austin Court announced that the Excessive Fines Clause could apply to forfeitures, it declined to establish a multifactor test to determine whether any particular forfeiture was excessive. Instead, it decided to allow the lower courts to consider the question. 509 U.S. at 622, 113 S.Ct. at 2812. The majority of the federal circuits have adopted a hybrid analysis of the issue. See United States v. Certain Real Property Located at 11869 Westshore Drive, Putman Tp., Livingston County, Mich., 70 F.3d 923, 926 (6th Cir. 1995)(and cases cited therein); cert. denied, ___ U.S. ___, 117 S.Ct. 57, 136 L.Ed.2d 20 (1996). First, the courts look at the connection between the property and the offense. This is known as the "instrumentality" test and is based on Justice Scalia's concurrence in Austin. The question Justice Scalia would ask is "not how much the property was worth, but whether the property has a close enough relationship to the offense." 509 U.S. at 628, 113 S.Ct. at 2815 (Scalia, J., concurring). Factors used to determine whether the instrumentality test has been met include:
(1) whether the use of the property in the offense was deliberate and planned or merely incidental and fortuitous; (2) whether the property was important to the success of the illegal activity; (3) the time during which the property was illegally used and the spatial extent of its use; (4) whether its illegal use was an isolated event or had been repeated; and (5) whether the purpose of acquiring, maintaining or using the property was to carry out the offense.United States v. Chandler, 36 F.3d 358, 365 (4th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1792, 131 L.Ed.2d 721 (1995).
If the instrumentality test is met, most federal courts then apply a "proportionality" analysis. The Eleventh Circuit noted that courts must ask: "Given the offense for which the owner is being punished, is the fine (imposed by the civil forfeiture) excessive?" United States v. One Parcel of Property Located at 427 and 429 Hall Street, Montgomery, Montgomery County, Ala, 74 F.3d 1165, 1172 (11th Cir. 1996). The Hall Street court declined to adopt a definitive checklist of relevant factors for purposes of the inquiry, but other circuits have noted that such factors could include: (1) the culpability of the claimant; (2) the gravity of the crime; (3) the sentence that could be imposed on the perpetrator for the offense; and (4) the nature and value of the property forfeited. 11869 Westshore Drive, 70 F.3d at 927-930; United States v. Real Property Located in El Dorado County at 6380 Little Canyon Road, El Dorado, Cal., 59 F.3d 974, 985-986 (9th Cir. 1995); United States v. Milbrand, 58 F.3d 841, 847-848 (2d Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1284, 134 L.Ed.2d 228 (1996).
We agree with the majority of the federal circuits, and adopt both an instrumentality and a proportionality analysis for determining whether this civil forfeiture of an automobile violates the Excessive Fines Clause. The facts of this case relevant to our analysis are that, in February 1993, Mr. Wojnar was driving his 1990 Blazer when he was stopped because he had no tail lights. The officer conducting the stop smelled marijuana, and conducted a pat-down search of Mr. Wojnar. He discovered a plastic baggie that appeared to contain marijuana residue. The officer searched the Blazer with Mr. Wojnar's consent, but did not discover any drugs. He then called for the assistance of a K-9 unit, and the police dog alerted on a briefcase and a brown paper bag inside the automobile. These items contained a total of twenty-seven grams of marijuana. Mr. Wojnar pleaded no contest to possession of marijuana, a third-degree felony punishable by imprisonment of no more than five years and by a fine of no more than $5,000.00. See §§ 893.13 (1)(f), 775.082, 775.083, Fla. Stat. (1991). The trial court withheld adjudication and placed him on probation for two years. As previously noted, in a subsequent civil action the 1990 Blazer was forfeited to the City of Tarpon Springs. The undisputed testimony at the forfeiture trial established that the value of the Blazer was $10,000.00.
We first analyze the relationship of the vehicle to the offense under the "instrumentality" test. Under the Chandler factors quoted above, this is a close question. The main function of a vehicle is to provide transportation, not to provide a place to consume illegal drugs. This car was not outfitted for concealing drugs; the marijuana was not found in secret panels, but rather in common containers located inside, but not affixed to, the automobile. The record does not reveal the extent of Wojnar's use of the vehicle to transport or consume drugs. The car did, however, provide a means of carrying illegal drugs and a private area in which to smoke the marijuana. We find this sufficient to meet the instrumentality test.
The second prong of our inquiry is "proportionality." Mr. Wojnar was charged with possession of an amount of marijuana just exceeding the amount that raises the offense from a misdemeanor to a felony. Compare § 893.13 (1)(f), Fla. Stat. (1991) with § 893.13 (1)(g), Fla. Stat. (1991)(possession of not more than 20 grams of cannabis is a first degree misdemeanor). While this crime is serious, it is not as grave as other drug offenses, for example, sale of cocaine. See § 893.13 (1)(a)1., Fla. Stat. (1991). The value of the Blazer was double the amount of the fine that could be imposed for the offense Mr. Wojnar admitted. These facts, combined with the somewhat attenuated relationship between the property and the offense under the instrumentality test, lead us to hold that the forfeiture of Mr. Wojnar's Blazer violated the Excessive Fines Clause.
We, therefore, reverse the order of forfeiture and remand to the lower court for further proceedings. We direct the court to order the City of Tarpon Springs to return the Blazer to Mr. Wojnar, or to compensate him for its $10,000.00 value at the time of forfeiture.
Reversed and remanded.
PATTERSON, J., concurs.
ALTENBERND, J., concurs in part and dissents in part.
ALTENBERND, Judge, concurring in part and dissenting in part.
I concur that this forfeiture does not violate double jeopardy. If the instrumentality test is applicable to an Excessive Fines Clause analysis, see Hall Street, 74 F.3d at 1171, then I agree with the majority that the vehicle in this case meets that test. Nevertheless, despite the majority's well-presented analysis, I conclude that Mr. Wojnar failed to establish that the forfeiture of his automobile, which was used in a felony drug offense, is unconstitutional as an excessive fine. The proportionality test adopted by the majority, which admittedly has been used in several federal cases, does not consider the defendant's financial resources. Although some proportionality test is probably necessary under the Excessive Fines Clause, I would include a consideration of the defendant's financial resources as a factor within any such test. If a defendant has the ability to own a particular car, I believe the Constitution usually permits a forfeiture of the vehicle for felony possession of marijuana occurring in that vehicle, so long as the defendant could replace it with another car without undue hardship. The majority's holding will generally permit forfeiture of cars owned by poor people while prohibiting forfeiture from the rich.
Mr. Robert J. Wojnar was driving an ordinary three-year-old sports utility vehicle while in possession of a modest quantity of marijuana. I assume this drug was not intended for sale, but was intended for his personal use. Following a traffic stop, the state filed felony marijuana charges, and Tarpon Springs filed this forfeiture proceeding. This proceeding was pending when Mr. Wojnar entered a negotiated plea in the criminal case. He was not fined and received probation. After the criminal court imposed sentence, Mr. Wojnar amended his answer in the forfeiture proceeding and alleged a violation of the Excessive Fines Clause. Oddly, Tarpon Springs stipulated at the forfeiture hearing that the sports utility vehicle was worth $10,000, but it sold the vehicle during the pendency of this appeal for $4,059. As a result of today's ruling, the state did not receive the $5,000 fine that could have been imposed, and Tarpon Springs will be required to pay Mr. Wojnar $5,941 more than the price it received for the vehicle.
My protest in this case is not directed at my colleagues, but at a federal test that seems entirely unworkable and unpredictable. The four factors the federal courts have used give me little guidance. As explained in the majority opinion, we must first consider "culpability." Although Mr. Wojnar pleaded nolo contendere, there is no debate that he is guilty of an intentional crime; he is "culpable." If this factor is separate from the crime's "gravity," the only issue would seem to be whether there is some question of his guilt. There is none.
Second, we must evaluate the "gravity" of this crime. In my opinion, this factor is established by the legislature; it is not an invitation for the judiciary to reassess the seriousness of crimes. In this case, the offense is a third-degree felony.
Third, we must examine the sentence that could be imposed. This factor is clearly interrelated with the "gravity" of the crime. The maximum penalty is five years' imprisonment. Under the sentencing guidelines, however, this third-degree felony is subject to level one punishment. See § 921.0012 (3), Fla. Stat. (1995). Thus, it will normally result in a sentence other than imprisonment. The maximum statutory fine, $5,000, is not drastically different from the value of this vehicle.
Finally, we must assess the "nature and value of the property forfeited." It is a used sports utility vehicle worth about $10,000.
Having considered these four factors, what is the maximum net value of property subject to forfeiture under the Constitution? What amount would be "grossly disproportionate" to the offense? See Hall Street, 74 F.3d at 1172. I confess that these factors give me no real guidance. The last factor does not help to establish the maximum fair market value of the property subject to forfeiture; it merely determines whether the property's value exceeds the maximum. The first three factors give me little information other than the defendant committed a particular third-degree felony unlikely to result in imprisonment.
Under the analysis employed by the federal courts, the state could have fined Mr. Wojnar $5,000 and Tarpon Springs could have taken his car if, for example, it had been a 1982 compact sedan worth $1,800. He is lucky because he is wealthy enough to own a car worth $10,000. I cannot accept a rule that makes it "proportionate" only to take cars from people who own old cars or new cars with big loans. The alternative approach in Hall Street, to announce that there is a proportionality test without providing criteria, seems equally unpredictable, and I do not fault the majority for rejecting that approach.
We are not interpreting a statute limiting forfeitures to a reasonable penalty, nor are we deciding whether Tarpon Springs is using the best judgment in this case. The issue in this case is the maximum statutory forfeiture permissible under the Constitution for carrying a user-quantity of marijuana. For a person who can afford to own a three-year-old sports utility vehicle, I am not convinced that the Constitution bars the forfeiture of that vehicle. Thus, if I were to use the federal courts' approach, I would add a factor that considered the defendant's financial resources. I note that Florida Standard Jury Instruction 6.12 includes a factor considering the defendant's financial resources in fixing the amount of a punitive damage award. The Ninth Circuit also uses a more complex test in forfeiture cases that considers the defendant's financial resources. See United States v. Real Property Located in El Dorado County, 59 F.3d 974 (9th Cir. 1995). With this added factor, I conclude that the trial court's decision could be affirmed under a multi-pronged proportionality test.
To avoid the unpredictability of a loosely structured proportionality test, I would suggest that, so long as the fine established by the legislature is constitutional for general application, the statutory forfeiture of property with a net fair market value up to three times the maximum fine should be regarded as presumptively constitutional, at least when there is no issue of the claimant's innocence and the forfeiture occurs in lieu of a fine. I would allow the trial court to consider the defendant's financial resources in determining whether a forfeiture must be less than this trebled amount to avoid a constitutional problem with the forfeiture statutes as applied in a particular case, and I would permit the court to consider whether a forfeiture could be greater than this amount in a case involving a wealthy defendant.
The vehicle involved in this case is not contraband. It was used to carry contraband. See § 932.702, Fla. Stat. (1995). If the personal property involved in the case were contraband or if it were either the proceeds of illegal activity or property purchased with such proceeds, I would not impose this limitation.
I admit that this bright-line presumption is somewhat arbitrary. Perhaps it is simply an act of constitutional desperation, because I can find no structured approach that provides the necessary predictability. There is, however, a history and tradition of treble damages as a penalty under the common law. See generally Jenkins v. Wood, 145 Mass. 494, 14 N.E. 512 (1888) (tracing a treble damage provision to the statute of Gloucester). While such damages are usually a trebling of compensatory damage, the trebling of the criminal fine at least ties the forfeiture to the legislature's general assessment of the "gravity" of the offense. The tradition of treble damages seems as reasonable a balance point as any other. For felony possession of marijuana, this approach would permit forfeiture of almost any vehicle in which the claimant's equity did not exceed $15,000. It could allow forfeiture of a Ferrari from a wealthy person in the rare case. It would allow for the forfeiture of the sports utility vehicle in this case.
The Statute of Gloucester was enacted in 1278 and may have been influenced by early Roman law, which provided for double, triple, and quadruple damages in certain cases. 2 Frederick Pollock Frederic W. Maitland, The History of English Law, 480, 522 at n. 1 (2d ed. 1899). Colonial Massachusetts law in the early 1600s provided treble damages as a penalty for theft from an orchard or garden, using a person's horse without permission, and malicious prosecution. See The Laws and Liberties of Massachusetts (1648).
Perhaps it would be simpler if the statute expressly allowed for a forfeiture of property up to three times the fine and provided for a lien in that amount on property of exceedingly high value.
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