Commonwealth v. $7,501.00

By Judge James H. Chamblin The Commonwealth moved to nonsuit this forfeiture proceeding in a drug case when it came on for trial on May 31, 1996. Thereupon, counsel for the defendants moved for the return to Cecil T. Lewis of the $7,501.00 in cash and a pager seized from him on June 23, 1995, under § 18.2-249. Counsel have each submitted proposed final orders. On June 17, 1996, counsel were given additional time to file authorities, but neither has done so. Although I have some doubts as to whether the Commonwealth can take a nonsuit in a forfeiture action in a drug case (see Trout v. Commonwealth Transp. Commissioner, 241 Va. 69 (1991)), counsel have agreed that it can in this case. The only question, therefore, is the effect of the nonsuit. The statutes governing forfeitures in drug cases (§ 19.2-386.1 et seq.) contain no references to a nonsuit or any discontinuance of a forfeiture proceeding. Forfeiture proceedings must follow the statutes. Failure to follow the statutory procedure will deprive the Commonwealth of the forfeiture. Jenkins v. Commonwealth, 13 Va. App. 420 (1991). When property is seized under § 18.2-249 prior to the filing of an information, then under § 19.2-386.3(A) “an information against that property shall be filed within ninety days of the date of seizure or the property shall be released to the owner or lienholder.” If the Commonwealth takes a nonsuit, then it must file a new information because the one filed on June 29, 1995, is no longer of any effect. The Commonwealth in [517] taking the nonsuit decided not to pursue the information filed on June 29, 1995. Any new information filed by the Commonwealth will be filed after the expiration of the ninety-day period after the property was seized on June 23, 1995. Because no information on which the Commonwealth has chosen to proceed has been filed within the ninety-day period, the property must be returned to the owner.