This appeal is from an order of forfeiture regarding real property titled in the name of appellant Lindie Howell. The property was Howell’s childhood home and was conveyed to her in 2006 by a gift deed from her father, James Marshall Pounds, who continued to reside on the property following the conveyance. After law enforcement officers saw marijuana growing on the property, Pounds was arrested and 86 marijuana plants found growing along a fence and in a pump-house were seized. In rem forfeiture proceedings pursuant to OCGA § 16-13-49 were initiated, naming Pounds and Howell as purported owners. In the order forfeiting the property over Howell’s objection, the trial court found as fact that Pounds had been arrested for growing marijuana on the same property in 1996 and for possessing marijuana and cocaine on that property in 2003, at which time materials for growing marijuana were found; that Howell knew of the drug convictions before the property was transferred to her in 2006; that she made no inspections of the property after the transfer and took no steps to prevent Pounds from growing marijuana on the property; that Howell paid nothing for the property, which was valued at $39,000, made no improvements on the property, paid no taxes on the property, and has not lived there for at least 10 years; and that Pounds transferred his interest in the property to his then-wife in 1994, receiving it back in 2000, and transferred the property to his second wife in 2002, who transferred it to her father in 2003, who transferred it back to Pounds in 2005, who transferred it to Howell in 2006, all the transfers being by gift deed. 1. Howell contends the trial court erred in rejecting her claim that forfeiture of the property constituted an excessive fine. We disagree.
In Thorp v. State of Georgia , 264 Ga. 712 1 450 SE2d 416 1994, this Court recognized that the Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution applies to in rem forfeitures and adopted a three-factor test to determine whether a forfeiture amounts to an excessive fine: “The first factor requires a consideration of the inherent gravity of the offense compared with the harshness of the penalty. . . . The second factor . . . evaluates whether the property was close enough to the offense to render it ‘guilty.’ . . . The third part of the analysis is ‘whether the criminal activity involving the defendant property was extensive in terms of time and/or spatial use.’ ” Citations omitted. The trial court in this case applied the Thorp factors, and found the forfeiture not to be an excessive fine, but it also noted the possibility that the Thorp test has been superseded by the U.S. Supreme Court’s announcement in U.S. v. Bajakajian , 524 U.S. 321 118 SC 2028, 141 LE2d 314 1998, of a standard to be applied in Excessive Fines Clause analyses. The standard established in Bajakajian is essentially the same as that used in cruel-and-unusual-punishment cases: “a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.” Id., 524 U.S. at 334.
