COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61303 : ACCELERATED DOCKET STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION RON DAVIS : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 10, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-250710 JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. TIMOTHY J. POTTS, ESQ. Cuyahoga County Prosecutor 600 Standard Building LARRY COLLINS, ESQ. 1370 Ontario Street Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Local App. R. 25. Defendant- appellant, Ronald Davis, appeals from the trial court's order granting appellee's petition for forfeiture. For the reasons set forth below, we reverse. Appellant was taken into custody by members of the Cleveland Police Department on October 21, 1989. The police also confiscated $1,515, a 1979 Cadillac, and personal clothing belonging to the appellant. Appellant was subsequently indicted for drug trafficking and possession of criminal tools on April 19, 1990. After appellant pled no contest, on July 18, 1990, the trial court found him guilty as charged in the indictment. Appellee filed a petition for forfeiture on May 21, 1990. A forfeiture hearing was held on December 10, 1990. The trial court granted the petition. Appellant asserts in his assignment of error that the trial court erred in granting the petition. He argues that the state failed to comply with the procedural requirements of R.C. 2933.43(C). Although criminal in nature, a forfeiture action is a civil proceeding against seized property. State v. Lilliock (1982), 70 Ohio St. 2d 23; Sensenbrenner v. Crosby (1974), 37 Ohio St. 2d 43, 45; Chagrin Falls v. Loveman (1986), 34 Ohio App. 3d 212; - 2 - State v. Golston (May 24, 1990), Cuyahoga App. No. 56921, unreported. The statute must be strictly construed against the state since forfeiture is not favored in law. Lilliock, supra; State v. Niles (1989), 44 Ohio App. 3d 133; Golston, supra. The state is required to file a petition of forfeiture "upon seizure of the contraband" or within a reasonable time. State v. Baumholtz (1990), 50 Ohio St. 3d 198, paragraph one of the syllabus; Niles, supra, 135. Initially, a reviewing court must first examine the state's delay in filing the petition, to determine if the delay is unreasonably lengthy. Baumholtz, supra; Golston, supra; see United States v. $8,850 (1983), 461 U.S. 555, 566. In Baumholtz, the Ohio Supreme Court held as unreasonable, a five and one-half month delay between seizure of the property and the filing of the petition. Baumholtz, supra, at 203. A seventy-nine day delay was held to be unreasonable in Niles, supra. If the reviewing court determines that a delay was unreasonably lengthy, it proceeds to weigh the following four factors: 1) the length of the delay; 2) the reasons for the delay; 3) the defendant's assertion of his right, 4) prejudice to the defendant. Baumholtz, supra, paragraph two of the syllabus. Applying the balancing test, we find that the delay in filing the forfeiture petition was unreasonable. Appellee filed the petition seven months after the confiscation of the items. It is the length of time from the confiscation, and not from the - 3 - indictment, to the filing of the petition that is relevant for this review. A seven-month delay is significant. Appellee's proffered reason for the delay, the investigation of the trafficking charges, does not justify the lengthiness of it. "An unreasonably lengthy delay is not justified where the state had only to fill in the blanks on a petition form." Golston, supra, at 3, citing May v. United States v. One 1977 Chevrolet Van (S.D. Ohio 1981), 519 F.Supp. 649. The use of the word "shall" by the legislature in R.C. 2933.43(C), expressly made the time limitation on filing for forfeitures mandatory. Dorrian v. Scioto Conservatory Dist. (1971), 27 Ohio St. 2d 102, 107; Niles, supra. We find that the seven-month delay in filing the petition was unreasonable and appellee failed to justify the delay. Moreover, appellee failed to give notice of the forfeiture proceedings by certified mail which is also an express requirement of the statute. Appellee, therefore, failed to comply with the procedural requirements of R.C. 2933.43. The trial court's order granting appellee's petition for forfeiture is void for noncompliance with R.C. 2933.43(C) mandates. - 4 - It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE SARA J. HARPER, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .