No. 570, 2003.Supreme Court of Delaware.Submitted: March 12, 2004.
Decided: May 12, 2004.
Superior Court of the State of Delaware in and for New Castle County, C.A. No. 03M-07-046.
Before HOLLAND, BERGER and JACOBS, Justices.
ORDER
RANDY J. HOLLAND, Justice.
This 12th day of May 2004, upon consideration of the appellant’s opening brief and the appellee’s motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The petitioner-appellant, Reginald Wilson, filed an appeal from the Superior Court’s October 28, 2003 order denying his petition for return of property. The respondent-appellee, the State of Delaware, has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Wilson’s opening brief that the appeal is without merit.[1]
We agree and affirm.
(2) In 2002, police officers from the City of Wilmington Police Department placed an individual named Gregory Johnson under surveillance in connection with an investigation of illegal drug activity. Johnson was observed entering a 1992 Cadillac automobile on several occasions during the surveillance period. In August 2002, the police arrested Johnson and seized approximately $600 in cash, 11.9 grams of cocaine and the 1992 Cadillac automobile. Although Johnson told the police the automobile belonged to him, motor vehicle records reflected that the registered owner was Reginald Wilson.
(3) In October 2002, an attorney from the Delaware Department of Justice sent a forfeiture notice to Wilson stating that a forfeiture proceeding would be initiated with respect to the automobile and advising Wilson of the time deadline to contest the forfeiture.[2] The notice was returned as undeliverable. On October 16, 2002, an additional notice was published in the Wilmington News Journal reflecting the State’s intent to seek forfeiture of the automobile.[3]
(4) On June 26, 2003, the Department of Justice sent Wilson’s attorney a letter stating that, if Wilson wanted to contest the forfeiture, he would be afforded an additional two weeks to file his petition. Wilson did not file his pro se petition for return of the automobile until July 23, 2003.[4] The State moved to dismiss the petition as untimely. On October 28, 2003, the Superior Court granted the State’s motion and dismissed Wilson’s petition.
(5) Under the forfeiture statute and the Superior Court Rules, a petition for return of property must be filed within 45 days of the later of the mailing of the forfeiture notice or the date of publication of the notice.[5] Here, the petition had to be filed within 45 days of the publication date of October 16, 2002. Because Wilson’s petition was not filed until July 23, 2003, it clearly was untimely under the Rule. The Superior Court, thus, correctly dismissed the petition.[6]
(6) It is manifest on the face of Wilson’s opening brief that this appeal is without merit because the issue presented on appeal is controlled by settled Delaware law and, to the extent that judicial discretion is implicated, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the State of Delaware’s motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.