State of Louisiana v. Kyle Trumaine Grevious and Four Thousand and Ninety Dollars and No/Cents (4090.00) in U.S. Currency Mixed Demoniations ( 2021 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 CA 0913
STATE OF LOUISIANA
VERSUS
KYLE TRUMAINE GREVIOUS AND FOUR THOUSAND
NINETY DOLLARS AND NO/ CENTS
4, 090. 00) IN U.S. CURRENCY MIXED DEMONIATIONS [ sic]
j
Judgment Rendered.. APR 2 6 2021
APPEALED FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT,
IN AND FOR THE PARISH OF IBERVILLE
STATE OF LOUISIANA
DOCKET NUMBER 79676
HONORABLE ALVIN BATISTE, JR., JUDGE
Anthony " Tony" Clayton Attorneys for Appellee
District Attorney State of Louisiana
Michael P. Fruge
Assistant District Attorney
Port Allen, Louisiana
J. Rodney Messina Attorney for Appellant
Baton Rouge, Louisiana Kyle Trumaine Grevious
BEFORE: McDONALD, HOLDRIDGE, and PENZATO, JJ.
McDonald, J.
In this case, Kyle Trumaine Grevious appeals the forfeiture of $4, 090. 00
cash seized from him after he was stopped for speeding and arrested on drug
charges. After review, we affirm.
FACTS AND PROCEDURAL HISTORY
On August 28, 2019, Mr. Grevious was stopped for speeding, and arrested
on charges of possession with intent to distribute marijuana, possession with intent
to distribute Suboxone, and possession of drug paraphernalia by the Iberville
Parish Sheriff's Office. Mr. Grevious had one bundle of U.S. currency in mixed
denominations in his pants pocket, and a safe in the back seat contained marijuana,
marijuana oil and drug paraphernalia, and Suboxone, along with a second bundle
of U.S. currency in mixed denominations. The currency, later found to total
4, 090. 00, was seized and Mr. Grevious was served with notice of pending
forfeiture on August 29, 2019. The currency was counted at the bank and
deposited into the Eighteenth Judicial District Court asset forfeiture account. Mr.
Grevious filed a claim of ownership of the $ 4, 090. 00 on October 30, 2019.
Thereafter, the District Attorney filed an " Application for Order of
Forfeiture or Exception of Prescription" on January 28, 2020. The District
Attorney asked for forfeiture of the $ 4, 090. 00, pursuant to La. R.S. 40: 2615( A),'
noting that more than thirty days had passed since service of the notice of pending
1 Louisiana Revised Statute 40: 2615( A) provides:
If no claims are timely filed in an action in rem, the district attorney may apply for an
order of forfeiture and allocation of forfeited property pursuant to Section 2616 of this
Chapter. Upon a determination by the court that the district attorney' s written application
establishes the court' s jurisdiction, the giving of proper notice, and facts sufficient to
show probable cause for forfeiture, the court shall order the property forfeited to the state.
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forfeiture and no timely claims were received by the District Attorney.2 The
District Attorney also filed a verification that Mr. Grevious was personally served
with the notice of pending forfeiture on August 29, 2019, that more than thirty
days had elapsed since the notice, and that no timely claim had been filed with the
District Attorney or the Iberville Parish Sheriff' s Office.
On January 30, 2020, the trial court issued a rule to show cause why the
application for order of forfeiture or exception of prescription should not be
granted. Mr. Grevious filed an opposition to the order of forfeiture or exception of
prescription on February 12, 2020. After a hearing, the trial court granted a
judgment of forfeiture. The judgment was signed on March 11, 2020. Mr.
Grevious filed a " MOTION FOR OUT OF TIME APPEAL" on June 2, 2020,
which was granted by the trial court. -
This court issued a rule to show cause order on November 9, 2020, stating
that:
The judgment on appeal appears to be a judgment of forfeiture
governed by Louisiana Revised Statute 40: 2601, et seq. These
proceedings are governed by the provisions of the Louisiana
Code of Civil Procedure. See La. R.S. 40: 2611( K); See
appellate record page 41)
In consideration of the above, it appears that the motion for
appeal in this matter was untimely filed and that there is no
authority for an out -of time
- appeal under the facts of this
case.
2 Louisiana Revised Statute 40: 2610( A) provides:
Only an owner of or interest holder in property seized for forfeiture may file a claim, and
shall do so in the manner provided in this Section. The claim shall be mailed to the
seizing agency and to the district attorney by certified mail, return receipt requested,
within thirty days after Notice of Pending Forfeiture. No extension of time for the filing
of a claim shall be granted.
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This court ordered the parties to show cause by briefs on or before
November 25, 2020, why the appeal should or should not be dismissed.
Thereafter, this court ruled that the appeal was maintained, stating
h] owever, the final determination as to whether this appeal is to be maintained is
reserved for the panel to which the appeal is assigned." State of Louisiana v.
Kyle Trumaine Grevious And Four Thousand Ninety Dollars And No/ Cents
4090. 00) In U.S. Currency Mixed Demoniations, 2020- 0913 ( La. App. 1 Cir.
12/ 30/ 20).
On appeal, Mr. Grevious makes one assignment of error, maintaining that
the trial court erred in finding that the appellant' s claim of ownership affidavit was
untimely filed.
TIMELINESS OF THE APPEAL
A devolutive appeal may be taken within sixty days of (1) the expiration of
the delay for applying for a new trial, if no application has been filed timely; or (2)
the date of the mailing of notice of the court' s refusal to grant a timely application
for new trial. La. C. C. P. art. 2087( A)( 1) & ( 2). The delay for applying for a new
trial shall be seven days, exclusive of legal holidays, with the delay commencing to
run on the day after the clerk has mailed the notice of judgment, or the sheriff has
served the notice ofjudgment. La. C. C. P. art. 1974. Once the seven- day period for
filing a motion for new trial has passed with no motion for new trial filed, the
appellate delays begin to run. Nelson v. Teachers' Retirement System of
Louisiana, 2010- 1190 ( La. App. 1 Cir. 2/ 11/ 11), 57 So. 3d 587, 589- 590.
The judgment at issue was rendered on March 11, 2020, and notice was
issued on March 19, 2020. As no motion for new trial was filed, it appears the
appellate delay would have expired on May 29, 2020. See La. C. C. P. art. 2087( A).
However, La. R.S. 9: 5830( A) extended all legal deadlines, which did not toll
al
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between March 16, 2020, and July 6, 2020. Thus, we find that the motion for
appeal, filed on June 2, 2020, was filed timely.
THE APPEAL
On appeal, Mr. Grevious maintains that the trial court erred in finding that
his claim of ownership affidavit was untimely filed. Mr. Grevious maintains that
the order of forfeiture is invalid because there were two orders of forfeiture that
were issued that were different. The record, however, is clear. Mr. Grevious was
provided notice of pending forfeiture on August 29, 2019. A notice of pending
forfeiture was later sent, on October 1, 2019, to Mr. Grevious' s father, Albert
Grevious, the owner of the car, in the event that Albert Grevious wanted to file a
claim. Albert Grevious did not file a claim. We find that Mr. Grevious' s argument
that his thirty days to respond to his notice of forfeiture that he received on August
291, 2019, should have restarted on October 2, 2019, when notice of pending
forfeiture was sent to his father, is without merit.
Further, while Mr. Grevious maintains that his notice of pending forfeiture
was invalid because it stated that it was for two bundles of U.S. currency in mixed
denominations, rather than for an exact amount, the Assistant District Attorney
noted at the hearing that money seized in the field is taken to a bank where it is
then counted for accuracy. Mr. Grevious could have filed a claim to the property
as it was described in the notice of pending forfeiture, two bundles of U.S.
currency in mixed denominations.
s Louisiana Revised Statutes 9: 5830( A) provides:
All deadlines in legal proceedings that were suspended by Proclamation Number JBE
2020-30 and any extensions thereof shall be subject to a limited suspension or extension
until July 6, 2020; however, the suspension or extension of these deadlines shall be
limited and shall apply only if these deadlines would have otherwise expired during the
time period of March 17, 2020, through July 5, 2020. The right to file a pleading or
motion to enforce any deadline in legal proceedings which would have expired during the
time period of March 17, 2020, through July 5, 2020, shall expire on July 6, 2020.
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We note the following language by the Louisiana Supreme Court:
The mandatory, plain -language requirements for the filing of a timely,
valid claim or request for stipulation are clear and, if not met, carry
significant consequences. La. R.S. 40: 2610 clearly establishes a
thirty -day filing deadline that cannot be extended under any
circumstances; prescribes the necessary form of the claim; and sets
forth the required content of the averments with unambiguous
specificity. The failure to fulfill any of these requirements— whether
it be missing the deadline, filing a claim not in affidavit form, or not
setting forth the necessary averments— precludes the owner or interest
holder from further participation in the forfeiture proceeding. As the
Act makes plain, when " no request for stipulation or claim is filed
timely, the district attorney shall proceed as provided in Sections 2615
and 2616." See La. R.S. 40: 2609. La. R. S. 40: 2615( A) provides in
pertinent part: " If no claims are timely filed in an action in rem, the
district attorney may apply for an order of forfeiture and allocation of
forfeited property pursuant to Section 2616 of this Chapter. Upon a
determination by the court that the district attorney' s written
application established the court' s jurisdiction, the giving of proper
notice, and facts sufficient to show probable cause for forfeiture, the
court shall order the property forfeited to the state." ( Footnote
omitted.)
State v. 2003 Infiniti G35 VIN No. JNKCV51E93MO24167, 2009- 1193 ( La.
1/ 20/ 10) 27 So. 3d 824, 834.
Mr. Grevious was provided notice of the pending forfeiture on August 29,
2019, and no claim was filed within the thirty day time limit provided by La. R.S.
40: 2610( A). Therefore, we find no error in the trial court judgment granting the
forfeiture.
CONCLUSION
For the foregoing reasons, the March 11, 2020, trial court judgment granting
forfeiture is affirmed. Costs of this appeal are assessed against Kyle Trumaine
Grevious.
AFFIRMED.
C.