dissenting.
The majority incorrectly holds that the state’s confiscation of the defendant’s automobile must be set aside because of a violation of due process and because the trial court abused its discretion in denying the defendant’s motion for return of other items seized by the police at the time of his arrest.
The facts in this case are simple. Defendant had his automobile, $4,300, stereo, suitcase and knife seized by the police at the time he was arrested for criminal *227activity in drugs. The defendant’s original counsel filed a motion to return his client’s automobile and the $4,300 seven days after their seizure. That motion was never set for hearing. Only after 13 months had passed and after the defendant had retained new counsel did he actively pursue and move for the return of the seized property. All of this delay occurred in the face of a statutory scheme which provides:
"Within 90 days after actual notice of any seizure, or at such later date as the court in its discretion may allow:
"(a) An individual from whose person, property or premises things have been seized may move the appropriate court to return things seized to the person or premises from which they were seized.” ORS 133.633(1) (a).
This statute provides a procedure for the recovery of personal property seized by the state. It envisages a motion by the claimant — here the defendant. The vehicle forfeiture scheme set forth in different statutes, namely, ORS 167.247, 471.660 and 471.665 gives the state a basis for permanently forfeiting to it under certain circumstances an automobile previously seized by it. The vehicle forfeiture scheme is not the source of or a limitation upon the rights and duties that the state may have under other statutes with regard to all personal property seized by it, including automobiles.
The majority opinion fails to note that the defendant’s original counsel, even when informed at the time of his client’s sentencing that the state intended to retain the automobile and the $4,300, did not object. As far as the stereo, suitcase and knife are concerned, the original motion for return made no mention of these items — only the motion filed 13 months after their seizure requested their return. Under these circumstances, I would hold that the defendant waived any right he had to complain of any statutory or constitutional violations that he contends occurred in connection with the retention of his property. See Harju v. Anderson, 111 Or 414, 417-18, 225 P 1100 *228(1924) ("a motion which is never called to the attention of the court is presumed to have been waived * * *”).
While the results that follow from my reasoning may be harsh, I believe there is no basis for holding that the trial court abused its discretion in denying the defendant’s belated motions for return. Defendant has offered no excuse for failing to proceed promptly except that his former counsel did not do so. If there was no justification for defendant’s original counsel's failure to act in a timely manner in defendant’s interests, that is a matter between defendant and his counsel which cannot be here resolved.
Assuming arguendo that the constitutional issue is properly before us, I disagree with the constitutional analysis advanced by the majority. It relies on Robinson v. Hanrahan, 409 US 38, 93 S Ct 30, 34 L Ed 2d 47 (1972), to hold that the defendant received "[n]o notice comporting with due process.” 33 Or App at 222. Hanrahan involved forfeiture proceedings instituted against a vehicle owned by a defendant charged with armed robbery. While the defendant was in county jail awaiting trial, the state mailed notice of the pending forfeiture proceedings not to the jail but to the defendant’s home address. After an ex parte circuit court hearing, the defendant’s vehicle was ordered forfeited. The Supreme Court stated that
"* * * the State knew that [defendant] was not at the address to which the notice was mailed and, moreover, knew also that [he] could not get to that address since he was at that very time confined in the [county] jail. * * *” 409 US at 40.
Under these circumstances, the court held that the state made no effort to provide notice which was reasonably calculated to apprise defendant of the pendency of the forfeiture proceedings and therefore set aside the forfeiture on due process grounds.
Hanrahan does not require that the forfeiture that occurred in this case be set aside. The facts, as stated by the majority, indicate that the defendant had *229actual notice of the pending forfeiture through at least two means: (1) by the letter of October 27, 1975, mailed to the defendant’s home address while he was not in police custody — a letter that the defendant does not contend he never received; and (2) by the oral statements of the district attorney made to defendant’s counsel during plea negotiations. Here, unlike in Hanrahan, the state did make efforts to provide notice of the pending forfeiture to the defendant and it is undisputed that the defendant had received such notice. He simply failed, through his counsel, to take any action to avoid the forfeiture until 13 months after receipt of the notice. The majority’s perfunctory analysis of Hanrahan has led it to equate the defendant’s failure to act with a constitutional deficiency in the statutory forfeiture scheme.
For the foregoing reasons, I respectfully dissent.
Thornton and Tanzer, JJ., join in this dissenting opinion.