State v. Triplett , 70 N.C. App. 341 ( 1984 )

VAUGHN, Chief Judge.

Defendant sets forth two grounds for appeal. He initially maintains that it was error for the trial court to deny his motion to dismiss based upon the ground that the offense charged was a two-year misdemeanor and, therefore, was not within the jurisdiction of the Superior Court. We disagree.

This Court clearly established in the case of State v. Keen, 25 N.C. App. 567, 214 S.E. 2d 242 (1975) that solicitation of murder is an infamous offense. G.S. 14-3(b) provides that “[i]f a misdemeanor offense ... be infamous [or] done in secrecy and malice . . . the offender shall ... be guilty of a Class H felony.” G.S. 7A-271, in turn, provides that the trial of all felony actions shall be within the exclusive and original jurisdiction of the Superior Court.

Defendant additionally contends that it was error for the trial court to order the forfeiture of the $2,500 cash payment made to Special Agent Lester. Both the State and defendant contend that the issue is the interpretation of G.S. 14-2.3 (“Forfeiture of gain acquired through felonies”) which provides that “. . . in the case of any violation of a general statute constituting a felony . . . any money or other property or interest in property acquired thereby shall be forfeited to the State of North Carolina, including any profits, gain, remuneration, or compensation directly or indirectly collected by or accruing to any felon.” Subsection (b) of G.S. 14-2.3 provides that an action to recover such property shall be brought by either a District Attorney or the Attorney General pursuant to G.S. 1-532. This statute describes a category of contraband which is not per se illegal to possess at all times but only derivatively subject to seizure due to its connection with illegal acts. For a comparison of contraband per se and derivative contraband, see Director of Finance, Prince George’s Co. v. Cole, 296 Md. 607, 619, 465 A. 2d 450 (1983). For example, various sections of the North Carolina General Statutes define such contraband to include vehicles used to transport illegal drugs (G.S. 90-112), vehicles used in prearranged racing (G.S. 20-141.3(g)) and deadly weapons used in crimes (G.S. 14-269.1).

Unlike these sections, however, G.S. 14-2.3 authorizes the forfeiture of property characterized not by its use in a particular crime but as the acquired result of a crime. We agree with defendant that the statute does not apply in this case.

Here, however, we do not have a forfeiture in the usual sense. One cannot forfeit that which he does not have. Defendant voluntarily relinquished any interest he had in the $2,500 when he gave it to the undercover agent as part payment on the contract to kill defendant’s wife. We hold that the judge made an appropriate disposition of the funds.

Affirmed.

Judges Hedrick and Wells concur.