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State v. $93

Supreme Court of Alabama

December 19, 2014

State of Alabama
v.
$93,917.50 and 376 gambling devices et al

Appeal from Greene Circuit Court. (CV-11-900029). Houston L. Brown, Trial Judge.

For Appellant: Luther Strange, atty. gen., Andrew Brasher, deputy atty. gen., Mark A. Starrett, asst. atty. gen.

For Appellee: John M. Bolton III, Charlanna W. Spencer, Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for Greenetrack, Inc.

Stuart, Bolin, Parker, Murdock, Main, and Wise, JJ., concur. Moore, C.J., concurs specially. Shaw and Bryan, JJ., concur in part and concur in the result.

OPINION

Page 11

PER CURIAM.

The State of Alabama appeals from an order dismissing the underlying forfeiture action, filed by it pursuant to Ala. Code 1975, § 13A-12-30, seeking condemnation of certain gaming devices, currency, and other property. We reverse and remand.

Facts and Procedural History

On June 1, 2011, the State executed a search warrant and seized certain gaming devices, currency, and other property from the premises of Greenetrack, Inc. (" Greenetrack" ). On June 7, 2011, Greenetrack filed in the Greene Circuit Court, pursuant to Rule 3.13, Ala. R. Crim. P., a " Motion for Return of Seized Property." [1] This motion was referred to Jefferson Circuit Court Judge Houston L. Brown, who had previously been appointed as a " special circuit judge" for certain gaming-related cases in Greene County.[2]

Page 12

On June 22, 2011, the State initiated the instant action -- filed separately from the proceedings on the Rule 3.13 motion -- by electronically filing in the Greene Circuit Court a petition seeking the forfeiture and condemnation of the gambling devices, currency, and property that had been seized from Greenetrack and that were the subject of Greenetrack's Rule 3.13 motion. The petition alleged in its style that the devices, currency, and property listed had been " in possession of" Greenetrack. The filings included a summons directed to Greenetrack, which indicates that service by certified mail was initiated; the case-action summary indicates that service by certified mail was issued that day. The signature portion of the petition appeared as follows:

" Respectfully submitted,
" LUTHER STRANGE (STR003)
" ATTORNEY GENERAL
" By:
" HENRY T. REAGAN (REA021)
" Deputy Attorney General
" Counsel for the State of Alabama
" J. MATT BLEDSOE (BLE006)
" Assistant Attorney General
" Counsel for the State of Alabama"

As can be seen from the above, the remainder of each line following the " /s/" was blank.

The certificate of service indicated that the petition had been served by mail on several attorneys, including the attorneys who had filed Greenetrack's Rule 3.13 motion. The signature portion of the certificate of service read as follows:

" HENRY T. REAGAN
" OF COUNSEL"

Again, the remainder of the line following the " /s/" was blank.

Two days later, on June 24, 2011, the State filed an " Amended Petition for Forfeiture and Condemnation." The signature portion of the amended petition appears substantially the same as that in the June 22 petition and also lacked any text on each line following the " /s/." The certificate of service, which, again, lacked any text on the line following the " /s/," indicated that the amended petition had been served by mail on the same attorneys identified in the original petition and on two additional attorneys. Further, the amended petition in its style again listed Greenetrack as the party the devices, currency, and property listed in the petition had been " in possession of" ; the petition added " c/o Luther Winn" and a different address following Greenetrack's listing as a party.[3] The summons was directed to Greenetrack " c/o Luther Winn" ; it further indicated that service by certified mail was initiated, and the case-action summary indicates that the petition was sent by certified mail to Winn on June 24.

The case-action summary indicates that " notice" was sent to Greenetrack on July 1, 2011, and lists " service by certified mai[l] on [July 5, 2011,]" for both Greenetrack and Winn.

Page 13

On July 6, 2011, Judge Brown held a hearing in the Rule 3.13 proceeding. According to the record in the instant action, at that hearing, Judge Brown noted that the June 22 petition in the case underlying this appeal appeared to lack signatures. That day, the State electronically filed a " Second Amended Petition for Forfeiture and Condemnation." The signature portion of this second amended petition contained typewritten names following the " /s/," reading as follows:

" Respectfully submitted,
" LUTHER STRANGE (STR003)
" ATTORNEY GENERAL
" By:
" Henry T. Reagan
" HENRY T. REAGAN (REA021)
" Deputy Attorney ...

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