Present: All the Justices
COMMONWEALTH OF VIRGINIA
v. Record No. 991997 OPINION BY JUSTICE DONALD W. LEMONS
June 9, 2000
ALTIMONT WILKS, ET AL.
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
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
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.
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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
3
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
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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
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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
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
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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
property notified the Commonwealth’s Attorney of such seizure
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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
affected the circuit court’s jurisdiction.
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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
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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
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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.
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