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2012 Florida Statutes
Chapter 932
PROVISIONS SUPPLEMENTAL TO CRIMINAL PROCEDURE LAW
PROVISIONS SUPPLEMENTAL TO CRIMINAL PROCEDURE LAW
CHAPTER 932
PROVISIONS SUPPLEMENTAL TO CRIMINAL PROCEDURE LAW
932.47 Informations filed by prosecuting attorneys.
932.48 Informations; duties of clerks of courts.
932.49 Failure of motor vehicle operators to stop and assist persons injured; form of information or indictment.
932.50 Evidence necessary in treason.
932.51 Execution on affirmance of judgment.
932.61 Transfer of county or municipal charge to court providing trial by jury.
932.62 Date for arraignment upon transfer; petitioner not incarcerated.
932.63 Filing of charges; petitioner not incarcerated.
932.64 Transfer of surety bond.
932.65 Filing formal charges; petitioner incarcerated.
932.66 Suggested forms for transfer.
932.701 Short title; definitions.
932.702 Unlawful to transport, conceal, or possess contraband articles or to acquire real or personal property with contraband proceeds; use of vessel, motor vehicle, aircraft, other personal property, or real property.
932.703 Forfeiture of contraband article; exceptions.
932.704 Forfeiture proceedings.
932.705 Law enforcement trust funds; Department of Highway Safety and Motor Vehicles deposits.
932.7055 Disposition of liens and forfeited property.
932.706 Forfeiture training requirements.
932.47 Informations filed by prosecuting attorneys.—Informations may be filed by the prosecuting attorney of the circuit court with the clerk of the circuit court in vacation or in term without leave of the court first being obtained.
History.—s. 1, ch. 17172, 1935; CGL 1936 Supp. 8363(1).
932.48 Informations; duties of clerks of courts.—Upon the filing of an information, the clerk of the circuit court shall docket the information and shall, without leave or order of the court first being had and obtained, issue a capias for the arrest of the person charged; and the clerk shall likewise issue any and all other necessary process incident to the information.
History.—s. 2, ch. 17172, 1935; CGL 1936 Supp. 8363(1).
932.49 Failure of motor vehicle operators to stop and assist persons injured; form of information or indictment.—Informations and indictments under ss. 316.062 and 316.063 shall be deemed sufficient if made in substantially the following form:
“That one A. B. while operating or being in charge of a motor vehicle then and there being driven along the thoroughfare in County, Florida, did strike and injure or put in jeopardy the person or property (as the case may be, giving details sufficient to identify the occurrence) of one (or unknown as the case may be) and without stopping to render aid to the persons injured or put in jeopardy thereby or (without making known to the persons present his or her full, true and correct name and address as the case may be) did unlawfully depart from the scene of such accident contrary to the statute in such case made and provided.”
History.—s. 3, ch. 13699, 1929; CGL 1936 Supp. 8374(1); s. 182, ch. 73-333; s. 1563, ch. 97-102.
932.50 Evidence necessary in treason.—No person shall be convicted of treason except by the testimony of two lawful witnesses to the same overt act of treason for which the person is prosecuted, unless he or she confess the same in open court.
History.—s. 4, ch. 1637, 1868; RS 2909; GS 3980; RGS 6082; CGL 8387; s. 1564, ch. 97-102.
932.51 Execution on affirmance of judgment.—Upon the affirmance of a judgment, sentence or order, the appellate court shall order and direct the court in which the case was originally determined to carry into effect the original judgment, sentence or order, or the appellate court shall itself proceed to pass such judgment, sentence or order as to it shall seem proper.
History.—s. 5, ch. 138, 1848; RS 2978; GS 4051; RGS 6155; CGL 8469.
932.61 Transfer of county or municipal charge to court providing trial by jury.—A person charged in a court with a violation of a county or municipal ordinance for which no jury trial is provided may, when the violation of a county or municipal ordinance is also a violation of a state law, cause the transfer of the violation to the appropriate court in which a trial by jury is provided, in the following manner:
(1) Prior to the commencement of the trial in the court not providing trial by jury, the person charged, or his or her attorney, shall file a petition requesting transfer to the appropriate court providing trial by jury. The original petition shall be filed with the court where the charge is docketed and pending, and copies shall be furnished to the court where jury trial is provided and to the prosecuting authority of both courts.
(2) The petition shall be signed by the defendant or the defendant’s attorney and shall contain:
(a) The defendant’s name, age, and address;
(b) A description and citation of the charges filed against the defendant;
(c) A citation indicating that these charges also constitute a violation of state law;
(d) The date and amount of bond set, if any;
(e) An agreement to appear, answer, and attend the court to which the charge may be transferred;
(f) The date of incarceration, if incarcerated at the time of the making of the petition; and
(g) The demand for trial by jury.
(3) The judge of the court in which the person is charged shall entertain defendant’s petition forthwith and shall, upon finding the petition to be correct in all its allegations of fact, order by written endorsement on the petition the transfer of defendant’s cause to the appropriate court providing criminal jury trial jurisdiction.
(4) The clerk of the court not providing trial by jury, upon receipt of the judge’s order directing transfer, shall within 3 days transmit to the clerk of the court providing criminal jury trial jurisdiction all the original record materials, including bond and the petition to transfer, filed in the petitioner’s cause, certifying that they are all the original papers filed in the cause and kept by the clerk. The clerk of the court not providing trial by jury shall also transmit copies of all the record materials to the prosecuting attorney of the court providing jury trial jurisdiction to which defendant’s cause is being transferred. The clerk shall also furnish notice of transfer to the surety or bail bond agent, if there is one. Upon the entry of the order transferring the cause, it shall be the duty of the police authority of the court from which the cause is being transferred to transfer a complete and exact duplicate of all reports, records, and other papers relating to the cause to the prosecuting attorney of the court to which the cause is transferred.
History.—s. 1, ch. 70-372; s. 1565, ch. 97-102.
932.62 Date for arraignment upon transfer; petitioner not incarcerated.—If the person whose case is transferred is at liberty on bond or on his or her own recognizance, the appearance date for arraignment to the court to which the cause has been transferred shall be within 45 days from the date of transfer, and, if the defendant is on his or her own recognizance, the defendant shall sign an agreement to appear before the court to which the case is transferred as a part of his or her petition to transfer. If the defendant is at liberty on a cash or property bond, the clerk of the transferring court shall endorse the new returnable date on its face prior to transfer.
History.—s. 1, ch. 70-372; s. 1566, ch. 97-102.
932.63 Filing of charges; petitioner not incarcerated.—If the petitioner is not incarcerated, the prosecuting attorney shall, within 30 days of receipt of the petition, after due and diligent consideration and investigation of defendant’s cause, file charges on behalf of the state against the defendant in the court providing criminal jury trial jurisdiction, or shall decline to file charges against the defendant, and the cause shall be dismissed upon the filing of a no true bill by the prosecuting attorney with the clerk. Upon failure of the prosecuting attorney to take action within 30 days, the cause shall be dismissed by the clerk of the court in which the cause is pending.
History.—s. 1, ch. 70-372.
932.64 Transfer of surety bond.—With the written consent of the bond agent, surety bonds shall be transferred and made returnable to the court in which trial by jury is provided.
History.—s. 1, ch. 70-372; s. 1567, ch. 97-102.
932.65 Filing formal charges; petitioner incarcerated.—When a person is incarcerated for a violation of a county or municipal ordinance and fails, or is otherwise unable, to be released on bond and requests a trial by jury, the person shall be transferred within 5 days to the jail facilities of the criminal court providing trial by jury. The prosecuting authority shall file formal charges within 3 days of the transfer of the person who fails, or is unable to post bond. Upon the failure or inability of the prosecuting authority to file charges, the person incarcerated shall be released and the provisions of s. 932.62, shall apply. It shall be the responsibility of the jailer releasing the prisoner to have the prisoner execute and sign an agreement to appear before the court to which his or her case has been transferred in accordance with s. 932.62.
History.—s. 1, ch. 70-372; s. 1568, ch. 97-102.
932.66 Suggested forms for transfer.—The petition for transfer, order of transfer, and agreement of bail bond agent to transfer bond shall be substantially as follows:
PETITION FOR TRANSFER TO COURT
PROVIDING TRIAL BY JURY
IN THE COURT, FLORIDA
I, (Name) , am (Age) years of age and I reside at (Address) . I was arrested on (Date) , (Year) , and am charged in this court with (Description and number of each county or municipal ordinance) . I am presently incarcerated in the (Jail) awaiting trial on the charge(s) listed above.
—OR—
I am at liberty on (surety bond) (cash bond) (my own recognizance). My bail bond agent is (Name)
(Address)
I am due to appear in this court on (Date) for (Type of appearance) .
My charge(s) in this court constitute a violation of the criminal laws of the state as follows:
I desire a trial by jury and seek a transfer of the following charge(s)
to a court of this county providing criminal trial by jury.
I agree to appear in the court to which my case is transferred on the day of , (Year) .
(Signature of petitioner)
(Attorney for petitioner)
ORDER OF TRANSFER
This cause is hereby transferred to the court at , Florida.
DONE AND ORDERED this day
of , (Year)
(Judge)
AGREEMENT OF BAIL BOND AGENT TO
TRANSFER BOND TO COURT
PROVIDING TRIAL BY JURY
I, , a duly licensed bail bond agent agree to the transfer of that certain bond to Court at , Florida.
(Signature of bail bond agent)
History.—s. 1, ch. 70-372; s. 1569, ch. 97-102; s. 40, ch. 99-6.
1932.701 Short title; definitions.—
(1) Sections 932.701-932.706 shall be known and may be cited as the “Florida Contraband Forfeiture Act.”
(2) As used in the Florida Contraband Forfeiture Act:
(a) “Contraband article” means:
1. Any controlled substance as defined in chapter 893 or any substance, device, paraphernalia, or currency or other means of exchange that was used, was attempted to be used, or was intended to be used in violation of any provision of chapter 893, if the totality of the facts presented by the state is clearly sufficient to meet the state’s burden of establishing probable cause to believe that a nexus exists between the article seized and the narcotics activity, whether or not the use of the contraband article can be traced to a specific narcotics transaction.
2. Any gambling paraphernalia, lottery tickets, money, currency, or other means of exchange which was used, was attempted, or intended to be used in violation of the gambling laws of the state.
3. Any equipment, liquid or solid, which was being used, is being used, was attempted to be used, or intended to be used in violation of the beverage or tobacco laws of the state.
4. Any motor fuel upon which the motor fuel tax has not been paid as required by law.
5. Any personal property, including, but not limited to, any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.
6. Any real property, including any right, title, leasehold, or other interest in the whole of any lot or tract of land, which was used, is being used, or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.
7. Any personal property, including, but not limited to, equipment, money, securities, books, records, research, negotiable instruments, currency, or any vessel, aircraft, item, object, tool, substance, device, weapon, machine, or vehicle of any kind in the possession of or belonging to any person who takes aquaculture products in violation of s. 812.014(2)(c).
8. Any motor vehicle offered for sale in violation of s. 320.28.
9. Any motor vehicle used during the course of committing an offense in violation of s. 322.34(9)(a).
10. Any photograph, film, or other recorded image, including an image recorded on videotape, a compact disc, digital tape, or fixed disk, that is recorded in violation of s. 810.145 and is possessed for the purpose of amusement, entertainment, sexual arousal, gratification, or profit, or for the purpose of degrading or abusing another person.
11. Any real property, including any right, title, leasehold, or other interest in the whole of any lot or tract of land, which is acquired by proceeds obtained as a result of Medicaid fraud under s. 409.920 or s. 409.9201; any personal property, including, but not limited to, equipment, money, securities, books, records, research, negotiable instruments, or currency; or any vessel, aircraft, item, object, tool, substance, device, weapon, machine, or vehicle of any kind in the possession of or belonging to any person which is acquired by proceeds obtained as a result of Medicaid fraud under s. 409.920 or s. 409.9201.
12. Any personal property, including, but not limited to, any vehicle, item, object, tool, device, weapon, machine, money, security, book, or record, that is used or attempted to be used as an instrumentality in the commission of, or in aiding and abetting in the commission of, a person’s third or subsequent violation of s. 509.144, whether or not comprising an element of the offense.
(b) “Bona fide lienholder” means the holder of a lien perfected pursuant to applicable law.
(c) “Promptly proceed” means to file the complaint within 45 days after seizure.
(d) “Complaint” is a petition for forfeiture filed in the civil division of the circuit court by the seizing agency requesting the court to issue a judgment of forfeiture.
(e) “Person entitled to notice” means any owner, entity, bona fide lienholder, or person in possession of the property subject to forfeiture when seized, who is known to the seizing agency after a diligent search and inquiry.
(f) “Adversarial preliminary hearing” means a hearing in which the seizing agency is required to establish probable cause that the property subject to forfeiture was used in violation of the Florida Contraband Forfeiture Act.
(g) “Forfeiture proceeding” means a hearing or trial in which the court or jury determines whether the subject property shall be forfeited.
(h) “Claimant” means any party who has proprietary interest in property subject to forfeiture and has standing to challenge such forfeiture, including owners, registered owners, bona fide lienholders, and titleholders.
History.—ss. 1, 2, ch. 74-385; s. 1, ch. 80-68; s. 1, ch. 89-148; s. 1, ch. 92-54; s. 1, ch. 95-265; s. 31, ch. 96-247; s. 2, ch. 99-234; s. 69, ch. 99-248; s. 2, ch. 2004-39; s. 15, ch. 2004-344; s. 166, ch. 2008-4; s. 14, ch. 2011-119.
1Note.—Section 15, ch. 2011-119, provides that “[t]he amendments made to ss. 509.144 and 932.701, Florida Statutes, and the creation of s. 901.1503, Florida Statutes, by this act do not affect or impede the provisions of s. 790.251, Florida Statutes, or any other protection or right guaranteed by the Second Amendment to the United States Constitution.”
Note.—Former s. 943.41.
932.702 Unlawful to transport, conceal, or possess contraband articles or to acquire real or personal property with contraband proceeds; use of vessel, motor vehicle, aircraft, other personal property, or real property.—It is unlawful:
(1) To transport, carry, or convey any contraband article in, upon, or by means of any vessel, motor vehicle, or aircraft.
(2) To conceal or possess any contraband article.
(3) To use any vessel, motor vehicle, aircraft, other personal property, or real property to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
(4) To conceal, or possess, or use any contraband article as an instrumentality in the commission of or in aiding or abetting in the commission of any felony or violation of the Florida Contraband Forfeiture Act.
(5) To acquire real or personal property by the use of proceeds obtained in violation of the Florida Contraband Forfeiture Act.
History.—s. 2, ch. 74-385; s. 2, ch. 80-68; s. 2, ch. 89-148; s. 2, ch. 92-54; s. 2, ch. 95-265.
Note.—Former s. 943.42.
932.703 Forfeiture of contraband article; exceptions.—
(1)(a) Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, may be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act.
(b) Notwithstanding any other provision of the Florida Contraband Forfeiture Act, except the provisions of paragraph (a), contraband articles set forth in s. 932.701(2)(a)7. used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, shall be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act.
(c) All rights to, interest in, and title to contraband articles used in violation of s. 932.702 shall immediately vest in the seizing law enforcement agency upon seizure.
(d) The seizing agency may not use the seized property for any purpose until the rights to, interest in, and title to the seized property are perfected in accordance with the Florida Contraband Forfeiture Act. This section does not prohibit use or operation necessary for reasonable maintenance of seized property. Reasonable efforts shall be made to maintain seized property in such a manner as to minimize loss of value.
(2)(a) Personal property may be seized at the time of the violation or subsequent to the violation, if the person entitled to notice is notified at the time of the seizure or by certified mail, return receipt requested, that there is a right to an adversarial preliminary hearing after the seizure to determine whether probable cause exists to believe that such property has been or is being used in violation of the Florida Contraband Forfeiture Act. Seizing agencies shall make a diligent effort to notify the person entitled to notice of the seizure. Notice provided by certified mail must be mailed within 5 working days after the seizure and must state that a person entitled to notice may request an adversarial preliminary hearing within 15 days after receiving such notice. When a postseizure, adversarial preliminary hearing as provided in this section is desired, a request must be made in writing by certified mail, return receipt requested, to the seizing agency. The seizing agency shall set and notice the hearing, which must be held within 10 days after the request is received or as soon as practicable thereafter.
(b) Real property may not be seized or restrained, other than by lis pendens, subsequent to a violation of the Florida Contraband Forfeiture Act until the persons entitled to notice are afforded the opportunity to attend the preseizure adversarial preliminary hearing. A lis pendens may be obtained by any method authorized by law. Notice of the adversarial preliminary hearing shall be by certified mail, return receipt requested. The purpose of the adversarial preliminary hearing is to determine whether probable cause exists to believe that such property has been used in violation of the Florida Contraband Forfeiture Act. The seizing agency shall make a diligent effort to notify any person entitled to notice of the seizure. The preseizure adversarial preliminary hearing provided herein shall be held within 10 days of the filing of the lis pendens or as soon as practicable.
(c) When an adversarial preliminary hearing is held, the court shall review the verified affidavit and any other supporting documents and take any testimony to determine whether there is probable cause to believe that the property was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act. If probable cause is established, the court shall authorize the seizure or continued seizure of the subject contraband. A copy of the findings of the court shall be provided to any person entitled to notice.
(d) If the court determines that probable cause exists to believe that such property was used in violation of the Florida Contraband Forfeiture Act, the court shall order the property restrained by the least restrictive means to protect against disposal, waste, or continued illegal use of such property pending disposition of the forfeiture proceeding. The court may order the claimant to post a bond or other adequate security equivalent to the value of the property.
(3) Neither replevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act; however, such action may be maintained if forfeiture proceedings are not initiated within 45 days after the date of seizure. However, if good cause is shown, the court may extend the aforementioned prohibition to 60 days.
(4) In any incident in which possession of any contraband article defined in s. 932.701(2)(a) constitutes a felony, the vessel, motor vehicle, aircraft, other personal property, or real property in or on which such contraband article is located at the time of seizure shall be contraband subject to forfeiture. It shall be presumed in the manner provided in s. 90.302(2) that the vessel, motor vehicle, aircraft, other personal property, or real property in which or on which such contraband article is located at the time of seizure is being used or was attempted or intended to be used in a manner to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of a contraband article defined in s. 932.701(2).
(5) The court shall order the forfeiture of any other property of a claimant, excluding lienholders, up to the value of any property subject to forfeiture under this section if any of the property described in this section:
(a) Cannot be located;
(b) Has been transferred to, sold to, or deposited with, a third party;
(c) Has been placed beyond the jurisdiction of the court;
(d) Has been substantially diminished in value by any act or omission of the person in possession of the property; or
(e) Has been commingled with any property which cannot be divided without difficulty.
(6)(a) Property may not be forfeited under the Florida Contraband Forfeiture Act unless the seizing agency establishes by a preponderance of the evidence that the owner either knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity.
(b) A bona fide lienholder’s interest that has been perfected in the manner prescribed by law prior to the seizure may not be forfeited under the Florida Contraband Forfeiture Act unless the seizing agency establishes by a preponderance of the evidence that the lienholder had actual knowledge, at the time the lien was made, that the property was being employed or was likely to be employed in criminal activity. If a lienholder’s interest is not subject to forfeiture under the requirements of this section, such interest shall be preserved by the court by ordering the lienholder’s interest to be paid as provided in s. 932.7055.
(c) Property titled or registered between husband and wife jointly by the use of the conjunctives “and,” “and/or,” or “or,” in the manner prescribed by law prior to the seizure, may not be forfeited under the Florida Contraband Forfeiture Act unless the seizing agency establishes by a preponderance of the evidence that the coowner either knew or had reason to know, after reasonable inquiry, that such property was employed or was likely to be employed in criminal activity.
(d) A vehicle that is rented or leased from a company engaged in the business of renting or leasing vehicles, which vehicle was rented or leased in the manner prescribed by law prior to the seizure, may not be forfeited under the Florida Contraband Forfeiture Act, and no fine, penalty, or administrative charge, other than reasonable and customary charges for towing and storage, shall be imposed by any governmental agency on the company which rented or leased the vehicle, unless the seizing agency establishes by preponderance of the evidence that the renter or lessor had actual knowledge, at the time the vehicle was rented or leased, that the vehicle was being employed or was likely to be employed in criminal activity. When a vehicle that is rented or leased from a company engaged in the business of renting or leasing vehicles is seized under the Florida Contraband Forfeiture Act, upon learning the address or phone number of the company, the seizing law enforcement agency shall, as soon as practicable, inform the company that the vehicle has been seized and is available for the company to take possession upon payment of the reasonable and customary charges for towing and storage.
(7) Any interest in, title to, or right to property titled or registered jointly by the use of the conjunctives “and,” “and/or,” or “or” held by a coowner, other than property held jointly between husband and wife, may not be forfeited unless the seizing agency establishes by a preponderance of the evidence that the coowner either knew, or had reason to know, after reasonable inquiry, that the property was employed or was likely to be employed in criminal activity. When the interests of each culpable coowner are forfeited, any remaining coowners shall be afforded the opportunity to purchase the forfeited interest in, title to, or right to the property from the seizing law enforcement agency. If any remaining coowner does not purchase such interest, the seizing agency may hold the property in coownership, sell its interest in the property, liquidate its interest in the property, or dispose of its interest in the property in any other reasonable manner.
(8) It is an affirmative defense to a forfeiture proceeding that the nexus between the property sought to be forfeited and the commission of any underlying violation was incidental or entirely accidental. The value of the property sought to be forfeited in proportion to any other factors must not be considered in any determination as to this affirmative defense.
History.—s. 3, ch. 74-385; s. 3, ch. 80-68; s. 496, ch. 81-259; s. 1, ch. 85-316; s. 3, ch. 89-148; s. 3, ch. 92-54; s. 3, ch. 95-265; s. 32, ch. 96-247; s. 3, ch. 99-234; ss. 70, 71, ch. 99-248; s. 6, ch. 2004-39; s. 31, ch. 2004-344.
Note.—Former s. 943.43.
932.704 Forfeiture proceedings.—
(1) It is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes while protecting the proprietary interests of innocent owners and lienholders and to authorize such law enforcement agencies to use the proceeds collected under the Florida Contraband Forfeiture Act as supplemental funding for authorized purposes. The potential for obtaining revenues from forfeitures must not override fundamental considerations such as public safety, the safety of law enforcement officers, or the investigation and prosecution of criminal activity. It is also the policy of this state that law enforcement agencies ensure that, in all seizures made under the Florida Contraband Forfeiture Act, their officers adhere to federal and state constitutional limitations regarding an individual’s right to be free from unreasonable searches and seizures, including, but not limited to, the illegal use of stops based on a pretext, coercive-consent searches, or a search based solely upon an individual’s race or ethnicity.
(2) In each judicial circuit, all civil forfeiture cases shall be heard before a circuit court judge of the civil division, if a civil division has been established. The Florida Rules of Civil Procedure shall govern forfeiture proceedings under the Florida Contraband Forfeiture Act unless otherwise specified under the Florida Contraband Forfeiture Act.
(3) Any trial on the ultimate issue of forfeiture shall be decided by a jury, unless such right is waived by the claimant through a written waiver or on the record before the court conducting the forfeiture proceeding.
(4) The seizing agency shall promptly proceed against the contraband article by filing a complaint in the circuit court within the jurisdiction where the seizure or the offense occurred.
(5)(a) The complaint shall be styled, “In RE: FORFEITURE OF ” (followed by the name or description of the property). The complaint shall contain a brief jurisdictional statement, a description of the subject matter of the proceeding, and a statement of the facts sufficient to state a cause of action that would support a final judgment of forfeiture. The complaint must be accompanied by a verified supporting affidavit.
(b) If no person entitled to notice requests an adversarial preliminary hearing, as provided in s. 932.703(2)(a), the court, upon receipt of the complaint, shall review the complaint and the verified supporting affidavit to determine whether there was probable cause for the seizure. Upon a finding of probable cause, the court shall enter an order showing the probable cause finding.
(c) The court shall require any claimant who desires to contest the forfeiture to file and serve upon the attorney representing the seizing agency any responsive pleadings and affirmative defenses within 20 days after receipt of the complaint and probable cause finding.
(6)(a) If the property is required by law to be titled or registered, or if the owner of the property is known in fact to the seizing agency, or if the seized property is subject to a perfected security interest in accordance with the Uniform Commercial Code, chapter 679, the attorney for the seizing agency shall serve the forfeiture complaint as an original service of process under the Florida Rules of Civil Procedure and other applicable law to each person having an ownership or security interest in the property. The seizing agency shall also publish, in accordance with chapter 50, notice of the forfeiture complaint once each week for 2 consecutive weeks in a newspaper of general circulation, as defined in s. 165.031, in the county where the seizure occurred.
(b) The complaint must, in addition to stating that which is required by s. 932.703(2)(a) and (b), as appropriate, describe the property; state the county, place, and date of seizure; state the name of the law enforcement agency holding the seized property; and state the name of the court in which the complaint will be filed.
(c) The seizing agency shall be obligated to make a diligent search and inquiry as to the owner of the subject property, and if, after such diligent search and inquiry, the seizing agency is unable to ascertain any person entitled to notice, the actual notice requirements by mail shall not be applicable.
(7) When the claimant and the seizing law enforcement agency agree to settle the forfeiture action prior to the conclusion of the forfeiture proceeding, the settlement agreement shall be reviewed, unless such review is waived by the claimant in writing, by the court or a mediator or arbitrator agreed upon by the claimant and the seizing law enforcement agency. If the claimant is unrepresented, the settlement agreement must include a provision that the claimant has freely and voluntarily agreed to enter into the settlement without benefit of counsel.
(8) Upon clear and convincing evidence that the contraband article was being used in violation of the Florida Contraband Forfeiture Act, the court shall order the seized property forfeited to the seizing law enforcement agency. The final order of forfeiture by the court shall perfect in the law enforcement agency right, title, and interest in and to such property, subject only to the rights and interests of bona fide lienholders, and shall relate back to the date of seizure.
(9)(a) When the claimant prevails at the conclusion of the forfeiture proceeding, if the seizing agency decides not to appeal, the seized property shall be released immediately to the person entitled to possession of the property as determined by the court. Under such circumstances, the seizing agency shall not assess any towing charges, storage fees, administrative costs, or maintenance costs against the claimant with respect to the seized property or the forfeiture proceeding.
(b) When the claimant prevails at the conclusion of the forfeiture proceeding, any decision to appeal must be made by the chief administrative official of the seizing agency, or his or her designee. The trial court shall require the seizing agency to pay to the claimant the reasonable loss of value of the seized property when the claimant prevails at trial or on appeal and the seizing agency retained the seized property during the trial or appellate process. The trial court shall also require the seizing agency to pay to the claimant any loss of income directly attributed to the continued seizure of income-producing property during the trial or appellate process. If the claimant prevails on appeal, the seizing agency shall immediately release the seized property to the person entitled to possession of the property as determined by the court, pay any cost as assessed by the court, and may not assess any towing charges, storage fees, administrative costs, or maintenance costs against the claimant with respect to the seized property or the forfeiture proceeding.
(10) The court shall award reasonable attorney’s fees and costs, up to a limit of $1,000, to the claimant at the close of the adversarial preliminary hearing if the court makes a finding of no probable cause. When the claimant prevails, at the close of forfeiture proceedings and any appeal, the court shall award reasonable trial attorney’s fees and costs to the claimant if the court finds that the seizing agency has not proceeded at any stage of the proceedings in good faith or that the seizing agency’s action which precipitated the forfeiture proceedings was a gross abuse of the agency’s discretion. The court may order the seizing agency to pay the awarded attorney’s fees and costs from the appropriate contraband forfeiture trust fund. Nothing in this subsection precludes any party from electing to seek attorney’s fees and costs under chapter 57 or other applicable law.
(11)(a) The Department of Law Enforcement, in consultation with the Florida Sheriffs Association and the Florida Police Chiefs Association, shall develop guidelines and training procedures to be used by state and local law enforcement agencies and state attorneys in implementing the Florida Contraband Forfeiture Act. Each state or local law enforcement agency that seizes property for the purpose of forfeiture shall periodically review seizures of assets made by the agency’s law enforcement officers, settlements, and forfeiture proceedings initiated by the agency, to determine whether such seizures, settlements, and forfeitures comply with the Florida Contraband Forfeiture Act and the guidelines adopted under this subsection. The determination of whether an agency will file a civil forfeiture action must be the sole responsibility of the head of the agency or his or her designee.
(b) The determination of whether to seize currency must be made by supervisory personnel. The agency’s legal counsel must be notified as soon as possible.
History.—s. 4, ch. 74-385; s. 4, ch. 80-68; s. 1, ch. 82-239; s. 2, ch. 85-304; s. 2, ch. 85-316; s. 1, ch. 87-77; s. 4, ch. 89-148; s. 2, ch. 89-307; s. 6, ch. 90-17; s. 4, ch. 92-54; s. 4, ch. 95-265; s. 27, ch. 2010-117.
Note.—Former s. 943.44.
932.705 Law enforcement trust funds; Department of Highway Safety and Motor Vehicles deposits.—
(1)(a) There is created the Law Enforcement Trust Fund into which the Department of Highway Safety and Motor Vehicles may deposit revenues received as a result of criminal proceedings or forfeiture proceedings, other than revenues deposited into the department’s Federal Law Enforcement Trust Fund under paragraph (b).
(b)1. There is created the Federal Law Enforcement Trust Fund into which the Department of Highway Safety and Motor Vehicles may deposit receipts and revenues received as a result of federal criminal, administrative, or civil forfeiture proceedings and receipts and revenues received from federal asset-sharing programs. The trust fund is exempt from the service charges imposed by s. 215.20.
2. Notwithstanding the provisions of s. 216.301 and pursuant to s. 216.351, any balance in the trust fund at the end of any fiscal year shall remain in the trust fund at the end of that year and shall be available for carrying out the purposes of the trust fund.
(2) Each trust fund listed in subsection (1) which is subject to termination pursuant to the provisions of s. 19(f)(2), Art. III of the State Constitution shall be reviewed prior to its scheduled termination as provided in s. 215.3206(1) and (2).
History.—s. 2, ch. 87-401; s. 1, ch. 98-389; s. 2, ch. 2002-150.
932.7055 Disposition of liens and forfeited property.—
(1) When a seizing agency obtains a final judgment granting forfeiture of real property or personal property, it may elect to:
(a) Retain the property for the agency’s use;
(b) Sell the property at public auction or by sealed bid to the highest bidder, except for real property which should be sold in a commercially reasonable manner after appraisal by listing on the market; or
(c) Salvage, trade, or transfer the property to any public or nonprofit organization.
(2) Notwithstanding subsection (1), a seizing agency must destroy any image and the medium on which the image is recorded, including, but not limited to, a photograph, video tape, diskette, compact disc, or fixed disk made in violation of s. 810.145 when the image and the medium on which it is recorded is no longer needed for an official purpose. The agency may not sell or retain any image.
(3) If the forfeited property is subject to a lien preserved by the court as provided in s. 932.703(6)(b), the agency shall:
(a) Sell the property with the proceeds being used towards satisfaction of any liens; or
(b) Have the lien satisfied prior to taking any action authorized by subsection (1).
(4) The proceeds from the sale of forfeited property shall be disbursed in the following priority:
(a) Payment of the balance due on any lien preserved by the court in the forfeiture proceedings.
(b) Payment of the cost incurred by the seizing agency in connection with the storage, maintenance, security, and forfeiture of such property.
(c) Payment of court costs incurred in the forfeiture proceeding.
1(d) Notwithstanding any other provision of this subsection, and for the 2012-2013 fiscal year only, the funds in a special law enforcement trust fund established by the governing body of a municipality may be expended to reimburse the general fund of the municipality for moneys advanced from the general fund to the special law enforcement trust fund before October 1, 2001. This paragraph expires July 1, 2013.
(5)(a) If the seizing agency is a county or municipal agency, the remaining proceeds shall be deposited in a special law enforcement trust fund established by the board of county commissioners or the governing body of the municipality. Such proceeds and interest earned therefrom shall be used for school resource officer, crime prevention, safe neighborhood, drug abuse education and prevention programs, or for other law enforcement purposes, which include defraying the cost of protracted or complex investigations, providing additional equipment or expertise, purchasing automated external defibrillators for use in law enforcement vehicles, and providing matching funds to obtain federal grants. The proceeds and interest may not be used to meet normal operating expenses of the law enforcement agency.
(b) These funds may be expended upon request by the sheriff to the board of county commissioners or by the chief of police to the governing body of the municipality, accompanied by a written certification that the request complies with the provisions of this subsection, and only upon appropriation to the sheriff’s office or police department by the board of county commissioners or the governing body of the municipality.
(c) An agency or organization, other than the seizing agency, that wishes to receive such funds shall apply to the sheriff or chief of police for an appropriation and its application shall be accompanied by a written certification that the moneys will be used for an authorized purpose. Such requests for expenditures shall include a statement describing anticipated recurring costs for the agency for subsequent fiscal years. An agency or organization that receives money pursuant to this subsection shall provide an accounting for such moneys and shall furnish the same reports as an agency of the county or municipality that receives public funds. Such funds may be expended in accordance with the following procedures:
1. Such funds may be used only for school resource officer, crime prevention, safe neighborhood, drug abuse education, or drug prevention programs or such other law enforcement purposes as the board of county commissioners or governing body of the municipality deems appropriate.
2. Such funds shall not be a source of revenue to meet normal operating needs of the law enforcement agency.
3. After July 1, 1992, and during every fiscal year thereafter, any local law enforcement agency that acquires at least $15,000 pursuant to the Florida Contraband Forfeiture Act within a fiscal year must expend or donate no less than 15 percent of such proceeds for the support or operation of any drug treatment, drug abuse education, drug prevention, crime prevention, safe neighborhood, or school resource officer program(s). The local law enforcement agency has the discretion to determine which program(s) will receive the designated proceeds.
Notwithstanding the drug abuse education, drug treatment, drug prevention, crime prevention, safe neighborhood, or school resource officer minimum expenditures or donations, the sheriff and the board of county commissioners or the chief of police and the governing body of the municipality may agree to expend or donate such funds over a period of years if the expenditure or donation of such minimum amount in any given fiscal year would exceed the needs of the county or municipality for such program(s). Nothing in this section precludes the expenditure or donation of forfeiture proceeds in excess of the minimum amounts established herein.
(6) If the seizing agency is a state agency, all remaining proceeds shall be deposited into the General Revenue Fund. However, if the seizing agency is:
(a) The Department of Law Enforcement, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the Forfeiture and Investigative Support Trust Fund as provided in s. 943.362 or into the department’s Federal Law Enforcement Trust Fund as provided in s. 943.365, as applicable.
(b) The Division of Alcoholic Beverages and Tobacco, the proceeds accrued pursuant to the Florida Contraband Forfeiture Act shall be deposited into the Alcoholic Beverage and Tobacco Trust Fund or into the department’s Federal Law Enforcement Trust Fund as provided in s. 561.027, as applicable.
(c) The Department of Highway Safety and Motor Vehicles, the proceeds accrued pursuant to the Florida Contraband Forfeiture Act shall be deposited into the Department of Highway Safety and Motor Vehicles Law Enforcement Trust Fund as provided in s. 932.705(1)(a) or into the department’s Federal Law Enforcement Trust Fund as provided in s. 932.705(1)(b), as applicable.
(d) The Fish and Wildlife Conservation Commission, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the State Game Trust Fund as provided in ss. 379.338, 379.339, and 379.3395 or into the Marine Resources Conservation Trust Fund as provided in s. 379.337.
(e) A state attorney’s office acting within its judicial circuit, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the State Attorney’s Forfeiture and Investigative Support Trust Fund to be used for the investigation of crime and prosecution of criminals within the judicial circuit.
(f) A school board security agency employing law enforcement officers, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the School Board Law Enforcement Trust Fund.
(g) One of the State University System police departments acting within the jurisdiction of its employing state university, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into that state university’s special law enforcement trust fund.
(h) The Department of Agriculture and Consumer Services, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the Agricultural Law Enforcement Trust Fund or into the department’s Federal Law Enforcement Trust Fund as provided in s. 570.205, as applicable.
(i) The Department of Military Affairs, the proceeds accrued from federal forfeiture sharing pursuant to 21 U.S.C. ss. 881(e)(1)(A) and (3), 18 U.S.C. s. 981(e)(2), and 19 U.S.C. s. 1616a shall be deposited into the Armory Board Trust Fund and used for purposes authorized by such federal provisions based on the department’s budgetary authority or into the department’s Federal Law Enforcement Trust Fund as provided in s. 250.175, as applicable.
(j) The Department of Transportation, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the State Transportation Trust Fund to be used for purposes of drug interdiction or into the department’s Federal Law Enforcement Trust Fund as provided in s. 339.082, as applicable.
(k) The Medicaid Fraud Control Unit of the Department of Legal Affairs, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the Department of Legal Affairs Grants and Donations Trust Fund to be used for investigation and prosecution of Medicaid fraud, abuse, neglect, and other related cases by the Medicaid Fraud Control Unit.
(l) The Division of State Fire Marshal in the Department of Financial Services, the proceeds accrued under the Florida Contraband Forfeiture Act shall be deposited into the Insurance Regulatory Trust Fund to be used for the purposes of arson suppression, arson investigation, and the funding of anti-arson rewards.
(m) The Division of Insurance Fraud of the Department of Financial Services, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the Insurance Regulatory Trust Fund as provided in s. 626.9893 or into the Department of Financial Services’ Federal Law Enforcement Trust Fund as provided in s. 17.43, as applicable.
(7) If more than one law enforcement agency is acting substantially to effect the forfeiture, the court having jurisdiction over the forfeiture proceedings shall, upon motion, equitably distribute all proceeds and other property among the seizing agencies.
(8) Upon the sale of any motor vehicle, vessel, aircraft, real property, or other property requiring a title, the appropriate agency shall issue a title certificate to the purchaser. Upon the request of any law enforcement agency which elects to retain titled property after forfeiture, the appropriate state agency shall issue a title certificate for such property to said law enforcement agency.
(9) Neither the law enforcement agency nor the entity having budgetary control over the law enforcement agency shall anticipate future forfeitures or proceeds therefrom in the adoption and approval of the budget for the law enforcement agency.
History.—s. 5, ch. 92-54; s. 2, ch. 92-290; s. 21, ch. 94-265; s. 479, ch. 94-356; s. 5, ch. 95-265; s. 72, ch. 96-321; s. 41, ch. 96-418; s. 2, ch. 98-387; s. 3, ch. 98-389; s. 4, ch. 98-390; s. 5, ch. 98-391; s. 2, ch. 98-392; s. 2, ch. 98-393; s. 2, ch. 98-394; s. 61, ch. 99-245; s. 2, ch. 2000-147; ss. 26, 79, ch. 2002-402; s. 1923, ch. 2003-261; s. 37, ch. 2003-399; s. 3, ch. 2004-39; s. 38, ch. 2004-234; s. 16, ch. 2004-344; s. 23, ch. 2005-3; s. 19, ch. 2005-71; s. 2, ch. 2005-109; s. 5, ch. 2005-117; s. 11, ch. 2006-26; s. 20, ch. 2006-176; s. 21, ch. 2006-305; s. 7, ch. 2007-14; s. 10, ch. 2007-73; s. 10, ch. 2008-153; s. 207, ch. 2008-247; s. 7, ch. 2009-82; s. 8, ch. 2010-153; s. 18, ch. 2011-47; s. 31, ch. 2012-88; s. 15, ch. 2012-119.
1Note.—Section 15, ch. 2012-119, amended paragraph (4)(d) “[i]n order to implement Specific Appropriations 1297B and 1299 of the 2012-2013 General Appropriations Act.”
932.706 Forfeiture training requirements.—The Criminal Justice Standards and Training Commission shall develop a standardized course of training for basic recruits and continuing education which shall be designed to develop proficiency in the seizure and forfeiture of property under the Florida Contraband Forfeiture Act. The curriculum for the course of training and continuing education must include, but is not limited to, racial and ethnic sensitivity and a review of cases in this state which involve searches and seizures, the use of drug-courier profiles by law enforcement agencies, and the use of an order to stop based on a pretext.
History.—s. 6, ch. 92-54; s. 6, ch. 95-265; s. 145, ch. 2005-2.