Harris v. State

Smith, Judge,

dissenting.

I respectfully dissent. I do not believe the issues may be as simply addressed as by the majority’s general, conclusory statement that Harris “complied with the requirements of subsections (E) and (F)” of OCGA § 16-13-49 (n) (4). Harris’s failure to “include more details concerning the funds” was not simply a matter of poor practice; such a failure was fatal to his claim. One claiming interest in property in response to the State’s notice of seizure must “specifically set forth with particularity the elements enumerated at OCGA § 16-13-49 (n) (4).” (Citations and punctuation omitted; emphasis supplied.) Jackson v. State of Ga., 218 Ga. App. 437, 439 (461 SE2d 594) (1995).

Harris failed to set forth his claim with the requisite particularity demanded by OCGA § 16-13-49 (n) (4) in several respects. For example, he described his acquisition of the funds in the account in general terms, without detailing “[a]ll essential facts supporting each assertion.” OCGA § 16-13-49 (n) (4) (F). Notably, he did not account for the source of the money with which he bought winning lottery tickets. This fact was essential in light of the allegation in the record, which the majority does not mention, that the lottery winnings resulted from Harris’s purchase of lottery tickets with proceeds from the sale of drugs. If indeed the lottery tickets were purchased with proceeds from an illegal -transaction, the fund, or at least a portion of it, would be contraband under OCGA § 16-13-49 (d) (2), which provides that “any proceeds derived or realized” from a violation of the Georgia Controlled Substances Act are contraband. The source of *270funds used to purchase the lottery tickets was a fact peculiarly within Harris’s knowledge, a fact he conveniently failed to mention in his claim.

Decided June 28, 1996. Martin L. Fierman, for appellant. Fredric D. Bright, District Attorney, Alberto C. Martinez, Jr., Assistant District Attorney, Lance K. Hiltbrand, for appellee.

Harris’s failure to comply strictly with OCGA § 16-13-49 (n) (4) violated the “plain mandate” of that statute: “to assure some degree of legitimacy to the claim and to elicit supportive factual information so as to expedite the proceeding.” State of Ga. v. Cannon, 214 Ga. App. 897, 898 (449 SE2d 519) (1994). The “facts” appearing in the claim were insufficient to “expedite the proceeding,” and the trial court did not err in entering the judgment of forfeiture.

I am authorized to state that Presiding Judge McMurray, Presiding Judge Birdsong and Judge Blackburn join in this dissent.