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In re One Residence Located At 9220 S. Rincon Mesa Dr. (PC)

Court of Appeals of Arizona, Second Division, Department A

August 2, 2013

In re ONE RESIDENCE LOCATED AT 9220 S. RINCON MESA DR. (PC) E133' OF N2 S2 SE4 NE4 1 AC SEC 33-15-16 aka RINCON MESA EST E133' OF N2 S2 LOT 6 RS 2/10, RECORDED IN THE OFFICE OF THE PIMA COUNTY RECORDER IN DOCKET 11768 AT PAGE 965, INCLUDING ALL BUILDINGS, FIXTURES, STRUCTURES, AND APPURTENANCES THERETO.

Not for Publication Rule 28, Rules of Civil Appellate Procedure

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. C20123586 Honorable Charles V. Harrington, Judge

Barbara LaWall, Pima County Attorney By Robin W. Schwartz Tucson Attorneys for Appellee

Law Office of Paul Gattone By Paul J. Gattone Attorney for Appellants

MEMORANDUM DECISION

GARYE L.VASQUEZ, Presiding Judge

¶1 In this civil forfeiture action, appellants Randall Smith, Brandon Smith, and Dustin Smith (collectively the Smiths) appeal from the trial court's judgment forfeiting two parcels of real property, various items of personal property, and $14, 075 in cash. On appeal, the Smiths contend the court erred by striking their claim on forfeiture for failure to include a proper verification rather than allowing them to amend the claim. For the reasons stated below, we affirm.

Factual Background and Procedural History

¶2 We view the facts in the light most favorable to upholding the trial court's judgment. In re $26, 980.00 U.S. Currency, 199 Ariz. 291, ¶ 2, 18 P.3d 85, 87 (App. 2000). In April 2012, the Counter Narcotics Alliance executed search warrants at Randall's residence at 13460 E. Kahlua and Brandon's residence at 9220 S. Rincon Mesa Drive, both in Pima County, "regarding possible illegal marijuana growing operations." As a result of those searches, officers seized more than one-hundred marijuana plants from each residence, as well as personal property and $14, 075 in cash. In May 2012, the state initiated uncontested civil forfeiture proceedings against the personal property and cash. On May 25, 2012, after receiving the notice of pending forfeiture, Randall and Brandon submitted petitions for remission or mitigation of forfeiture to the state.

¶3 The state subsequently constructively seized for forfeiture the two parcels of real property "by recording an In Rem Notice of Seizure for Forfeiture in the Pima County Recorder's Office." On June 5, 2012, the state initiated the current in rem forfeiture action pursuant to A.R.S. § 13-4311 by filing in the Pima County Superior Court a notice of seizure for forfeiture and notice of pending forfeiture against the real property, personal property, and cash. The Smiths were served notice of the pending forfeiture on June 11, 2012, and, on that same day, the state also served Randall and Brandon with a declaration of forfeiture as to the uncontested proceeding. On July 3, 2012, the Smiths submitted to the state a petition for remission or mitigation of forfeiture, bearing incorrect criminal case numbers. The state contacted the Smiths' attorney, notifying him that the document was "improper" and providing the civil cause number.

4 A few days later, the Smiths filed a claim on forfeiture with the trial court under the civil cause number. The state subsequently moved to strike the claim, arguing it "[wa]s not properly verified" because the verification pages were "simply copies" of the verification pages attached to the May 25 and July 3 petitions. Shortly thereafter, the Smiths moved to amend their claim on forfeiture to correct any "potential technical defect." They also opposed the state's motion to strike, arguing that "[t]here is nothing in § 13-4311(E) dealing with the form of the verification or the date on which it is signed, only that there be a signed verification" and that their claim did include signed verifications.

¶5 After a hearing, the trial court granted the motion to strike and denied the motion to amend. The court explained:

The statutes on this issue are very unforgiving. A.R.S. § 13-4311(E) states, "The claim shall be signed by the claimant under penalty of perjury and shall set forth the following . . . " (emphasis added). Here the claim itself is not verified. A different document, the Petition for Remission or Mitigation of Forfeiture, is verified and the dates . . . to those verifications do not coincide with the Claim on Forfeiture. This does not comply with the statute and the statute is clear in its requirements.

The state subsequently moved for an order of forfeiture "because the statutory time periods . . . ha[d] expired" and the "claims that had been filed relating to [the] property [were] stricken." The court entered a judgment of forfeiture on September 27, 2012. This appeal followed. We have jurisdiction ...


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