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Salim v. State

Court of Appeals of Arkansas, Division IV

November 16, 2016




          James Harris, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, Judge.

         Appellant Saad Waqar Salim appeals from the Mississippi County Circuit Court's order of forfeiture. On appeal, Salim contends that (1) the circuit court improperly refused to dismiss the State's forfeiture petition for lack of prosecution; (2) the circuit court's findings that the money was related to drug trafficking and in close proximity to contraband are clearly erroneous; and (3) he was prejudiced by the circuit court's refusal to dismiss the forfeiture proceeding, as the State would be prohibited from refiling its forfeiture complaint. We disagree and affirm.

         This case began after the State filed a forfeiture complaint on May 30, 2013, pursuant to Arkansas Code Annotated section 5-64-505 (Repl. 2016), naming Salim and Tiffany Stevens as defendants.[1] The State alleged that the $1, 400 seized during the execution of a search warrant at a Shell Superstop was subject to forfeiture. Appellant filed an answer and requested that the complaint be dismissed and the money returned to him.

         Subsequently, appellant filed a motion to dismiss for failure to prosecute on October 6, 2014. In his motion, he alleged that there had been no activity in the case for over twelve months and that the circuit court had the inherent power to dismiss a case due to a failure to prosecute with due diligence, citing Gordon v. Wellman, 265 Ark. 914, 582 S.W.2d 22 (1979). In its response, the State explained that, to avoid any double-jeopardy issues, it did not want to proceed with the disposition of the forfeiture action before the criminal action was decided. However, the State further explained that the criminal proceeding had just been disposed of on October 6, 2014, and that it would be seeking to dispose of the forfeiture action. Appellant filed a reply, additionally alleging that the case should be dismissed pursuant to Arkansas Rule of Civil Procedure 41(b).

         The record reflects that on June 29, 2015, the State requested that the case be set for trial, and a scheduling order was sent on the same day setting the case for nonjury trial on October 8, 2015. The next day, appellant filed an amended motion to dismiss for failure to prosecute, requesting that the circuit court enter an order dismissing the case for the State's failure to prosecute. On the day of trial, the circuit court addressed the pending motions. The circuit court noted that the record did not reflect that a notice had been sent by the court pursuant to Rule 41(b), triggering the State to show good case as to why the case should not be dismissed; appellant's counsel conceded that a notice had not been issued. Appellant's counsel additionally admitted that he had not scheduled or obtained a hearing date to address the pending original or amended motion to dismiss but asked the court to address the motion at that time and dismiss the case. The State responded that appellant had not shown that he had been disadvantaged by the delay and argued that he had, in fact, benefited from the delay because appellant had been facing both a civil and a criminal case at the same time. Additionally, the State explained that its office had been short-staffed.

         After hearing oral argument, the circuit court denied the motion and made the following findings:

It's the court's determination that at least it's a, number one, that under 41(b) it's the court's action that would trigger if 41(b) relief or if a dismissal is to be entered pursuant to 41(b), then it would be after the court initiated or sent notice to the parties, particularly the plaintiff, that the case had been without action for a significant period of time, in the excess of twelve months, and in this case, that wasn't done.
Frankly, the filing of a civil forfeiture action with a pending criminal action that's been filed in our district, typically, those pending civil actions, unless pending for an extensively long time, if there are criminal actions that involve the same evidence, the same time, share of the same allegations, then typically the civil action is delayed or continued until the criminal action is brought to some conclusion, one way or another.
One of the reasons being that with a criminal action pending, any possible testimony on the part of the defendants may force them into a situation if the case is scheduled, that a person facing criminal charges for allegations of possession of the same items may very well be forced and put in a position where they have to choose between their right to remain silent, or be placed in a position where they waive or give up that right because the civil action is being pursued initially.
And for those reasons, typically, the civil action is delayed until some disposition on the criminal action takes place.
But the court did not send notice; without notice, the State couldn't be triggered or required to respond. This is the service with July 22nd, 2013. We're two years down the road, basically, at this point, or it was two years down the road when the case was scheduled for trial. For civil actions, that's not an unusually long time.
There are no allegations that because of the delay in time there's been a loss of any evidence that there's been a prejudice to the defendant to proceed, and finally, it appears to the court that once this matter was scheduled and notice up for hearing in June or July of this year, and ...

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