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Mikell v. State

Court of Appeals of Georgia

November 20, 2014

MIKELL
v.
STATE OF GEORGIA et al

Forfeiture. Effingham Superior Court. Before Judge Turner.

Judgment vacated and case remanded with direction.

Dozier & Hillis, Dennis G. Dozier, Sr., Bethany M. Hillis, for appellant.

Richard A. Mallard, District Attorney, J. Barclay Black, Assistant District Attorney, for appellees.

PHIPPS, Chief Judge. Ellington, P. J., and McMillian, J., concur.

OPINION

Page 234

Phipps, Chief Judge.

In this civil in rem forfeiture action, Ricky Mikell appeals the trial court's order finding that his residence was subject to forfeiture because the property had been used to facilitate a drug transaction. Mikell contends that the trial court erred by failing to perform the proper constitutional analysis on the record. As discussed below, the record does not reveal whether the trial court performed the detailed analysis required by Howell v. State of Ga.[1] in determining whether the forfeiture constituted an excessive fine.[2] We therefore vacate the trial court's order and remand the case with direction that the court conduct the proper constitutional analysis and make appropriate findings of fact and conclusions of law on the record. Because Mikell's remaining contentions were not raised below, they will not be considered on appeal.

Construed to support the judgment,[3] the evidence adduced at the forfeiture hearing showed that Mikell and his wife (Shelby Mikell) bought the residence in 1993. In 1996, after the two divorced, the residence became titled in Mikell's name. Mikell's adult sons, Joseph and Andrew Mikell, and Holly Skipper (the mother of Joseph Mikell's child) lived with Mikell in the house.

In March 2013, sheriff's deputies attempted to serve at the residence an arrest warrant on Skipper. Andrew Mikell would not allow the deputies to enter to look for Skipper, and Joseph Mikell told Andrew Mikell (on a speaker phone) not to allow them to enter because " My shit's in the house." The deputies then obtained a warrant to search the premises for Skipper and illegal substances.

In executing the search warrant, deputies found in a bedroom about two-and-one-half pounds of marijuana, plastic baggies, and scales; they found firearms within a few feet of that bedroom, and marijuana residue in two vehicles on the premises. Joseph Mikell, Andrew Mikell, and Skipper were arrested on drug charges. The deputies seized three vehicles and other items on the basis that they had been used in the sale or transport of drugs, and a lien was placed on the residence.

In addition to the facts set out above, the following evidence was adduced at the forfeiture hearing. In 2008, deputies had executed

Page 235

a search warrant at the residence, where multiple purchases of marijuana [329 Ga.App. 831] had occurred; Mikell acknowledged then, as Andrew Mikell and Skipper were being arrested for drug offenses, that illegal activity was occurring at the house, that he had talked to " them over and over about all this," and that " [h]e was tired of it." A civil forfeiture action was filed as a result of the 2008 investigation, but the court declined to seize the property at that time, ...


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