Florida Senate - 2016              PROPOSED COMMITTEE SUBSTITUTE
       Bill No. CS for SB 1044
       
       
       
       
       
                               Ì808816>Î808816                          
       
       594-03401-16                                                    
       Proposed Committee Substitute by the Committee on Fiscal Policy
       (Appropriations Subcommittee on Criminal and Civil Justice)
    1                        A bill to be entitled                      
    2         An act relating to forfeiture of contraband; amending
    3         s. 932.703, F.S.; providing for the acquisition of the
    4         provisional title of seized property under certain
    5         circumstances; prohibiting the seizure of property
    6         under the Florida Contraband Forfeiture Act until the
    7         owner of such property is arrested for a criminal
    8         offense that renders the property a contraband
    9         article; providing exceptions; prohibiting the seizing
   10         law enforcement agency from threatening a property
   11         owner with property seizure or forfeiture under
   12         certain circumstances; requiring a seizing law
   13         enforcement agency to follow specified procedures
   14         under certain circumstances; requiring a court to
   15         issue a written order finding probable cause under
   16         certain circumstances; authorizing a court to order
   17         that the written order of probable cause be sealed
   18         under certain circumstances; providing that the
   19         property is deemed a contraband article and forfeited
   20         subject to forfeiture proceedings under certain
   21         circumstances; requiring the return of property by the
   22         seizing law enforcement agency to the property owner
   23         under certain circumstances; prohibiting a forfeiture
   24         under the Florida Contraband Forfeiture Act from being
   25         final until the owner of the seized property is
   26         prosecuted and convicted of or pleads guilty or nolo
   27         contendere to a criminal offense that renders the
   28         property a contraband article; providing construction;
   29         deleting a provision vesting rights, interests, and
   30         title to contraband articles in the seizing law
   31         enforcement agency; amending s. 322.34, F.S.;
   32         providing for payment of court costs, fines, and fees
   33         from proceeds of certain forfeitures; conforming a
   34         provision to changes made by the act; reenacting s.
   35         403.413(6)(e), F.S., relating to forfeiture under the
   36         Florida Litter Law, to incorporate the amendment made
   37         to s. 932.703, F.S., in a reference thereto; providing
   38         an effective date.
   39          
   40  Be It Enacted by the Legislature of the State of Florida:
   41  
   42         Section 1. Subsection (1) of section 932.703, Florida
   43  Statutes, is amended to read:
   44         932.703 Forfeiture of contraband article; exceptions.—
   45         (1)(a) Any contraband article, vessel, motor vehicle,
   46  aircraft, other personal property, or real property used in
   47  violation of any provision of the Florida Contraband Forfeiture
   48  Act, or in, upon, or by means of which any violation of the
   49  Florida Contraband Forfeiture Act has taken or is taking place,
   50  may be seized and shall be forfeited subject to the provisions
   51  of the Florida Contraband Forfeiture Act.
   52         (b) Notwithstanding any other provision of the Florida
   53  Contraband Forfeiture Act, except the provisions of paragraph
   54  (a), contraband articles set forth in s. 932.701(2)(a)7. used in
   55  violation of any provision of the Florida Contraband Forfeiture
   56  Act, or in, upon, or by means of which any violation of the
   57  Florida Contraband Forfeiture Act has taken or is taking place,
   58  shall be seized and shall be forfeited subject to the provisions
   59  of the Florida Contraband Forfeiture Act.
   60         (c)1. At the time of seizure, the state acquires
   61  provisional title to the seized property. Property may not be
   62  seized under the Florida Contraband Forfeiture Act until an
   63  owner of such property is arrested for a criminal offense that
   64  renders the property a contraband article. However, property may
   65  be immediately seized if:
   66         a.The owner of the contraband article cannot be readily
   67  identified;
   68         b.There is probable cause to arrest an individual, but he
   69  or she is a fugitive or dies before an arrest is made; or
   70         c. The owner of property subject to seizure agrees to
   71  cooperate as a confidential informant in lieu of an arrest. The
   72  confidential informant status must be agreed upon between the
   73  seizing agency and the property owner, and the property owner
   74  must actively participate as a confidential informant in
   75  gathering criminal intelligence or investigative information for
   76  an active criminal investigation. The seizing agency may not use
   77  the threat of property seizure or forfeiture when offering the
   78  property owner the status of confidential informant in lieu of
   79  an arrest. If charges are not brought against the property
   80  owner, the property must be returned to the owner at the
   81  conclusion of the active criminal investigation or the cessation
   82  of the status of criminal informant. Final forfeiture of
   83  property may be included as a component of the agreement to
   84  serve as a confidential informant.
   85         2. If a seizure is made under one of the exceptions
   86  specified in subparagraph 1., the law enforcement agency that
   87  seizes the contraband article, vessel, motor vehicle, aircraft,
   88  other personal property, or real property used in violation of
   89  the Florida Contraband Forfeiture Act shall, within 10 business
   90  days, apply to a court of competent jurisdiction for an order
   91  determining whether probable cause exists for the seizure of the
   92  property. The application for the probable cause determination
   93  must establish probable cause that the property that has been
   94  seized is subject to seizure under the Florida Contraband
   95  Forfeiture Act and may be filed by reliable electronic means. If
   96  the court finds that probable cause exists for the seizure, it
   97  shall enter a written order to that effect and order that the
   98  property be held until the issue of a determination of title is
   99  resolved pursuant to the procedures established in the Florida
  100  Contraband Forfeiture Act. Upon a finding of good cause shown,
  101  the court may order that the court order finding probable cause
  102  be sealed for as long as reasonably necessary to preserve the
  103  integrity of an active criminal investigation. If the court
  104  determines that probable cause does not exist for the seizure,
  105  any forfeiture hold, lien, lis pendens, or other civil
  106  encumbrance must be released.
  107         3. If, after 90 days after the date of the initial seizure,
  108  the seizing agency cannot find the owner of the seized property
  109  after a diligent effort, the seized property is deemed a
  110  contraband article and forfeited subject to s. 932.704. However,
  111  if the seizing agency finds the owner within 90 days after the
  112  date of the initial seizure, the seizing agency shall return the
  113  property to the owner within 5 days after:
  114         a. The court finding that the owner had a bona fide
  115  security interest;
  116         b. The court finding that the owner was an innocent owner;
  117         c. The acquittal or dismissal of the owner of the criminal
  118  charge that was the basis of the forfeiture proceedings; or
  119         d. The disposal of the criminal charge that was the basis
  120  of the forfeiture proceedings by nolle prosequi. The seizing
  121  agency is responsible for any damage, storage fee, and related
  122  cost applicable to the property.
  123         4.A forfeiture under the Florida Contraband Forfeiture Act
  124  is not final, and title or other indicia of ownership, other
  125  than provisional title, does not pass to the state or
  126  jurisdiction seeking forfeiture until the owner of the seized
  127  property is prosecuted and convicted of or pleads guilty or nolo
  128  contendere to a criminal offense, without regard to whether
  129  adjudication is withheld, that renders the property a contraband
  130  article.
  131         5. This paragraph is in addition to all other requirements
  132  and rights in the Florida Contraband Forfeiture Act and does not
  133  affect any other requirement or right set forth in this act.
  134  This paragraph does not affect any party’s discovery obligations
  135  under the Florida Rules of Civil Procedure All rights to,
  136  interest in, and title to contraband articles used in violation
  137  of s. 932.702 shall immediately vest in the seizing law
  138  enforcement agency upon seizure.
  139         (d) The seizing agency may not use the seized property for
  140  any purpose until the rights to, interest in, and title to the
  141  seized property are perfected in accordance with the Florida
  142  Contraband Forfeiture Act. This section does not prohibit use or
  143  operation necessary for reasonable maintenance of seized
  144  property. Reasonable efforts shall be made to maintain seized
  145  property in such a manner as to minimize loss of value.
  146         Section 2. Paragraph (c) of subsection (9) of section
  147  322.34, Florida Statutes, is amended to read:
  148         322.34 Driving while license suspended, revoked, canceled,
  149  or disqualified.—
  150         (9)
  151         (c) Notwithstanding s. 932.703(1)(c) or s. 932.7055, when
  152  the seizing agency obtains a final judgment granting forfeiture
  153  of the motor vehicle under this section, 30 percent of the net
  154  proceeds from the sale of the motor vehicle shall be retained by
  155  the seizing law enforcement agency. The remaining 70 percent of
  156  the proceeds shall first be applied to payment of court costs,
  157  fines, and fees remaining due, and any remaining balance of
  158  proceeds and 70 percent shall be deposited in the General
  159  Revenue Fund for use by regional workforce boards in providing
  160  transportation services for participants of the welfare
  161  transition program. In a forfeiture proceeding under this
  162  section, the court may consider the extent that the family of
  163  the owner has other public or private means of transportation.
  164         Section 3. For the purpose of incorporating the amendment
  165  made by this act to section 932.703, Florida Statutes, in a
  166  reference thereto, paragraph (e) of subsection (6) of section
  167  403.413, Florida Statutes, is reenacted to read:
  168         403.413 Florida Litter Law.—
  169         (6) PENALTIES; ENFORCEMENT.—
  170         (e) A motor vehicle, vessel, aircraft, container, crane,
  171  winch, or machine used to dump litter that exceeds 500 pounds in
  172  weight or 100 cubic feet in volume is declared contraband and is
  173  subject to forfeiture in the same manner as provided in ss.
  174  932.703 and 932.704.
  175         Section 4. This act shall take effect July 1, 2016.