APPEAL
FROM THE MONROE COUNTY CIRCUIT COURT [NO. 48CV-18-25]
Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for
appellant.
Leslie
Rutledge, Att'y Gen., by: Rachel Kemp, Ass't
Att'y Gen., for appellee.
HONORABLE CHRISTOPHER W. MORLEDGE, JUDGE
DAVID
M. GLOVER, JUDGE
Juan
Cruz appeals the Monroe County Circuit Court's order
granting the State's petition for forfeiture of $65, 850,
arguing the circuit court erred in granting the petition
prior to the expiration of his time to respond. We agree with
Cruz's argument and, therefore, we reverse and remand.
On
April 8, 2015, at approximately 5:30 p.m., Arkansas State
Police (ASP) initiated an investigation of the report of a
gunshot fired at a tractor trailer on Interstate 40 by a
Hispanic driver in a Suburban with Texas plates. Cruz was
driving the Suburban when ASP made the stop; he told ASP
there was no gun in the vehicle. However, a loaded gun was
found in the vehicle together with a duffel bag containing
$64, 950; $900 in the center console; an odor of marijuana
and a small amount of marijuana in a cup on the rear
floorboard in front of the seats; and marijuana residue in
several shoe boxes. Cruz stated the money belonged to him,
but he was only a "small player" in the game.
On
February 26, 2018, the State filed a notice of seizure and
intent to forfeit as to the $65, 850 seized on April 8, 2015.
This notice was personally served on Cruz on March 2, 2018,
at the Monroe County jail, where he was being held. At 1:10
p.m. on April 10, an order of forfeiture was entered
forfeiting the $65, 850 and depositing it in the Monroe
County Drug Control Fund.
At 3:30
p.m. on April 10, approximately two hours after the order was
entered, Cruz filed a motion to dismiss the forfeiture
petition due to untimely filing. In its response to the
motion to dismiss, the State argued there was good cause to
delay the filing of the petition for forfeiture because the
currency was potential evidence in a connected criminal case
not disposed of until January 29, 2018; however, the State
further acknowledged Cruz was not convicted of a drug crime
and had no drug charges pending. On April 24, the State filed
a motion to strike as untimely Cruz's motion to dismiss;
Cruz argued his motion was timely. The circuit court did not
rule on Cruz's motion to dismiss.
On May
2, Cruz filed a motion to set aside the order of forfeiture.
He asserted that since the forfeiture petition was filed on
February 26, 2018, and he was served in the Monroe County
jail on March 2, he then had until May 1 to file his answer
as he was incarcerated when he was served and therefore, the
order of forfeiture should be set aside, and the circuit
court should address his motion to dismiss. The circuit court
did not rule on Cruz's motion to set aside, and he timely
appealed the order of forfeiture.
\Rule
12(a)(1) of the Arkansas Rules of Civil Procedure provides,
in pertinent part:
A defendant shall file his or her answer within 30 days
after the service of summons and complaint upon him or her.
A defendant served under Rule 4(f) shall file an answer
within 30 days from the date of first publication of the
warning order. A defendant incarcerated in any jail,
penitentiary, or other correctional facility in this state,
however, shall file an answer within 60 days after
service.
(Emphasis added.)
We
construe court rules using the same principles and canons of
construction used to interpret our statutes. Jones v.
State, 2018 Ark.App. 211. When reviewing issues of
statutory interpretation, the first rule in considering the
meaning and effect of a statute is to construe it just as it
reads, giving words their ordinary and usually accepted
meaning in common language. Rylwell, L.L.C. v. Arkansas
Dev. Fin. Auth., 372 Ark. 32, 269 S.W.3d 797 (2007).
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