House Bill 3333c1

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    Florida House of Representatives - 1998             CS/HB 3333

        By the Committee on Civil Justice & Claims and
    Representatives Crow, Fasano, Heyman and Silver





  1                      A bill to be entitled

  2         An act relating to stalking offenses; amending

  3         s. 784.048, F.S.; providing for court

  4         revocation for a specified period of the

  5         driver's license of a person who has used a

  6         motor vehicle in the course of committing

  7         stalking or aggravated stalking; providing for

  8         forfeiture as contraband of such motor vehicle;

  9         providing for booting or immobilization of the

10         vehicle for a specified period, unless the

11         court finds that the vehicle owner's family

12         lacks other transportation means; requiring

13         payment of such booting or immobilization costs

14         by the vehicle owner; providing for forfeiture

15         of personal property used in the course of

16         committing the stalking or aggravated stalking;

17         amending s. 932.701, F.S., relating to

18         definitions with respect to the Florida

19         Contraband Forfeiture Act; redefining the term

20         "contraband article," to conform to changes

21         made by the act; reenacting s. 932.703, F.S.,

22         relating to forfeiture of contraband articles,

23         to incorporate the amendment to s. 932.701,

24         F.S., in references; providing an effective

25         date.

26

27  Be It Enacted by the Legislature of the State of Florida:

28

29         Section 1.  Section 784.048, Florida Statutes, is

30  amended to read:

31         784.048  Stalking; definitions; penalties.--

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  1         (1)  As used in this section, the term:

  2         (a)  "Harass" means to engage in a course of conduct

  3  directed at a specific person that causes substantial

  4  emotional distress in such person and serves no legitimate

  5  purpose.

  6         (b)  "Course of conduct" means a pattern of conduct

  7  composed of a series of acts over a period of time, however

  8  short, evidencing a continuity of purpose. Constitutionally

  9  protected activity is not included within the meaning of

10  "course of conduct." Such constitutionally protected activity

11  includes picketing or other organized protests.

12         (c)  "Credible threat" means a threat made with the

13  intent to cause the person who is the target of the threat to

14  reasonably fear for his or her safety.  The threat must be

15  against the life of, or a threat to cause bodily injury to, a

16  person.

17         (2)  Any person who willfully, maliciously, and

18  repeatedly follows or harasses another person commits the

19  offense of stalking, a misdemeanor of the first degree,

20  punishable as provided in s. 775.082 or s. 775.083.

21         (3)  Any person who willfully, maliciously, and

22  repeatedly follows or harasses another person, and makes a

23  credible threat with the intent to place that person in

24  reasonable fear of death or bodily injury, commits the offense

25  of aggravated stalking, a felony of the third degree,

26  punishable as provided in s. 775.082, s. 775.083, or s.

27  775.084.

28         (4)  Any person who, after an injunction for protection

29  against repeat violence pursuant to s. 784.046, or an

30  injunction for protection against domestic violence pursuant

31  to s. 741.30, or after any other court-imposed prohibition of

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  1  conduct toward the subject person or that person's property,

  2  knowingly, willfully, maliciously, and repeatedly follows or

  3  harasses another person commits the offense of aggravated

  4  stalking, a felony of the third degree, punishable as provided

  5  in s. 775.082, s. 775.083, or s. 775.084.

  6         (5)  Any person who willfully, maliciously, and

  7  repeatedly follows or harasses a minor under 16 years of age

  8  commits the offense of aggravated stalking, a felony of the

  9  third degree, punishable as provided in s. 775.082, s.

10  775.083, or s. 775.084.

11         (6)  If during the course of committing an offense in

12  violation of this section a person is found by the court or a

13  jury to have used a motor vehicle, the court shall revoke the

14  offender's driver's license for 1 year. Upon a finding by the

15  court that the defendant committed an offense in violation of

16  this section and used any personal property, including, but

17  not limited to, any vessel, aircraft, item, object, tool,

18  substance, device, weapon, machine, vehicle of any kind,

19  money, securities, books, records, research, negotiable

20  instruments, or currency, during the course of the violation,

21  such property may be forfeited pursuant to ss.

22  932.701-932.707. In lieu of forfeiture, the court may order

23  that the motor vehicle be booted or immobilized for a 30-day

24  period, unless the court finds that the family of the owner of

25  the vehicle has no other public or private means of

26  transportation. All costs of the booting or immobilization

27  shall be paid by the vehicle owner pursuant to s. 713.78.

28         (7)(6)  Any law enforcement officer may arrest, without

29  a warrant, any person he or she has probable cause to believe

30  has violated the provisions of this section.

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  1         Section 2.  Paragraph (a) of subsection (2) of section

  2  932.701, Florida Statutes, is amended to read:

  3         932.701  Short title; definitions.--

  4         (2)  As used in the Florida Contraband Forfeiture Act:

  5         (a)  "Contraband article" means:

  6         1.  Any controlled substance as defined in chapter 893

  7  or any substance, device, paraphernalia, or currency or other

  8  means of exchange that was used, was attempted to be used, or

  9  was intended to be used in violation of any provision of

10  chapter 893, if the totality of the facts presented by the

11  state is clearly sufficient to meet the state's burden of

12  establishing probable cause to believe that a nexus exists

13  between the article seized and the narcotics activity, whether

14  or not the use of the contraband article can be traced to a

15  specific narcotics transaction.

16         2.  Any gambling paraphernalia, lottery tickets, money,

17  currency, or other means of exchange which was used, was

18  attempted, or intended to be used in violation of the gambling

19  laws of the state.

20         3.  Any equipment, liquid or solid, which was being

21  used, is being used, was attempted to be used, or intended to

22  be used in violation of the beverage or tobacco laws of the

23  state.

24         4.  Any motor fuel upon which the motor fuel tax has

25  not been paid as required by law.

26         5.  Any personal property, including, but not limited

27  to, any vessel, aircraft, item, object, tool, substance,

28  device, weapon, machine, vehicle of any kind, money,

29  securities, books, records, research, negotiable instruments,

30  or currency, which was used or was attempted to be used as an

31  instrumentality in the commission of, or in aiding or abetting

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  1  in the commission of, any felony, whether or not comprising an

  2  element of the felony, or which is acquired by proceeds

  3  obtained as a result of a violation of the Florida Contraband

  4  Forfeiture Act.

  5         6.  Any real property, including any right, title,

  6  leasehold, or other interest in the whole of any lot or tract

  7  of land, which was used, is being used, or was attempted to be

  8  used as an instrumentality in the commission of, or in aiding

  9  or abetting in the commission of, any felony, or which is

10  acquired by proceeds obtained as a result of a violation of

11  the Florida Contraband Forfeiture Act.

12         7.  Any personal property, including, but not limited

13  to, equipment, money, securities, books, records, research,

14  negotiable instruments, currency, or any vessel, aircraft,

15  item, object, tool, substance, device, weapon, machine, or

16  vehicle of any kind in the possession of or belonging to any

17  person who takes aquaculture products in violation of s.

18  812.014(2)(c).

19         8.  Any personal property, including, but not limited

20  to, any vessel, aircraft, item, object, tool, substance,

21  device, weapon, machine, vehicle of any kind, money,

22  securities, books, records, research, negotiable instruments,

23  or currency, used during the course of committing an offense

24  in violation of s. 784.048.

25         Section 3.  For the purpose of incorporating the

26  amendment to s. 932.701, Florida Statutes, in references

27  thereto, section 932.703, Florida Statutes, is reenacted to

28  read:

29         932.703  Forfeiture of contraband article;

30  exceptions.--

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  1         (1)(a)  Any contraband article, vessel, motor vehicle,

  2  aircraft, other personal property, or real property used in

  3  violation of any provision of the Florida Contraband

  4  Forfeiture Act, or in, upon, or by means of which any

  5  violation of the Florida Contraband Forfeiture Act has taken

  6  or is taking place, may be seized and shall be forfeited

  7  subject to the provisions of the Florida Contraband Forfeiture

  8  Act.

  9         (b)  Notwithstanding any other provision of the Florida

10  Contraband Forfeiture Act, except the provisions of paragraph

11  (a), contraband articles set forth in s. 932.701(2)(a)7. used

12  in violation of any provision of the Florida Contraband

13  Forfeiture Act, or in, upon, or by means of which any

14  violation of the Florida Contraband Forfeiture Act has taken

15  or is taking place, shall be seized and shall be forfeited

16  subject to the provisions of the Florida Contraband Forfeiture

17  Act.

18         (c)  All rights to, interest in, and title to

19  contraband articles used in violation of s. 932.702 shall

20  immediately vest in the seizing law enforcement agency upon

21  seizure.

22         (d)  The seizing agency may not use the seized property

23  for any purpose until the rights to, interest in, and title to

24  the seized property are perfected in accordance with the

25  Florida Contraband Forfeiture Act.  This section does not

26  prohibit use or operation necessary for reasonable maintenance

27  of seized property. Reasonable efforts shall be made to

28  maintain seized property in such a manner as to minimize loss

29  of value.

30         (2)(a)  Personal property may be seized at the time of

31  the violation or subsequent to the violation, if the person

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  1  entitled to notice is notified at the time of the seizure or

  2  by certified mail, return receipt requested, that there is a

  3  right to an adversarial preliminary hearing after the seizure

  4  to determine whether probable cause exists to believe that

  5  such property has been or is being used in violation of the

  6  Florida Contraband Forfeiture Act. Seizing agencies shall make

  7  a diligent effort to notify the person entitled to notice of

  8  the seizure. Notice provided by certified mail must be mailed

  9  within 5 working days after the seizure and must state that a

10  person entitled to notice may request an adversarial

11  preliminary hearing within 15 days after receiving such

12  notice.  When a postseizure, adversarial preliminary hearing

13  as provided in this section is desired, a request must be made

14  in writing by certified mail, return receipt requested, to the

15  seizing agency.  The seizing agency shall set and notice the

16  hearing, which must be held within 10 days after the request

17  is received or as soon as practicable thereafter.

18         (b)  Real property may not be seized or restrained,

19  other than by lis pendens, subsequent to a violation of the

20  Florida Contraband Forfeiture Act until the persons entitled

21  to notice are afforded the opportunity to attend the

22  preseizure adversarial preliminary hearing.  A lis pendens may

23  be obtained by any method authorized by law.  Notice of the

24  adversarial preliminary hearing shall be by certified mail,

25  return receipt requested.  The purpose of the adversarial

26  preliminary hearing is to determine whether probable cause

27  exists to believe that such property has been used in

28  violation of the Florida Contraband Forfeiture Act.  The

29  seizing agency shall make a diligent effort to notify any

30  person entitled to notice of the seizure.  The preseizure

31  adversarial preliminary hearing provided herein shall be held

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  1  within 10 days of the filing of the lis pendens or as soon as

  2  practicable.

  3         (c)  When an adversarial preliminary hearing is held,

  4  the court shall review the verified affidavit and any other

  5  supporting documents and take any testimony to determine

  6  whether there is probable cause to believe that the property

  7  was used, is being used, was attempted to be used, or was

  8  intended to be used in violation of the Florida Contraband

  9  Forfeiture Act.  If probable cause is established, the court

10  shall authorize the seizure or continued seizure of the

11  subject contraband.  A copy of the findings of the court shall

12  be provided to any person entitled to notice.

13         (d)  If the court determines that probable cause exists

14  to believe that such property was used in violation of the

15  Florida Contraband Forfeiture Act, the court shall order the

16  property restrained by the least restrictive means to protect

17  against disposal, waste, or continued illegal use of such

18  property pending disposition of the forfeiture proceeding.

19  The court may order the claimant to post a bond or other

20  adequate security equivalent to the value of the property.

21         (3)  Neither replevin nor any other action to recover

22  any interest in such property shall be maintained in any

23  court, except as provided in this act; however, such action

24  may be maintained if forfeiture proceedings are not initiated

25  within 45 days after the date of seizure.  However, if good

26  cause is shown, the court may extend the aforementioned

27  prohibition to 60 days.

28         (4)  In any incident in which possession of any

29  contraband article defined in s. 932.701(2)(a) constitutes a

30  felony, the vessel, motor vehicle, aircraft, other personal

31  property, or real property in or on which such contraband

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  1  article is located at the time of seizure shall be contraband

  2  subject to forfeiture.  It shall be presumed in the manner

  3  provided in s. 90.302(2) that the vessel, motor vehicle,

  4  aircraft, other personal property, or real property in which

  5  or on which such contraband article is located at the time of

  6  seizure is being used or was attempted or intended to be used

  7  in a manner to facilitate the transportation, carriage,

  8  conveyance, concealment, receipt, possession, purchase, sale,

  9  barter, exchange, or giving away of a contraband article

10  defined in s. 932.701(2).

11         (5)  The court shall order the forfeiture of any other

12  property of a claimant, excluding lienholders, up to the value

13  of any property subject to forfeiture under this section if

14  any of the property described in this section:

15         (a)  Cannot be located;

16         (b)  Has been transferred to, sold to, or deposited

17  with, a third party;

18         (c)  Has been placed beyond the jurisdiction of the

19  court;

20         (d)  Has been substantially diminished in value by any

21  act or omission of the person in possession of the property;

22  or

23         (e)  Has been commingled with any property which cannot

24  be divided without difficulty.

25         (6)(a)  Property may not be forfeited under the Florida

26  Contraband Forfeiture Act unless the seizing agency

27  establishes by a preponderance of the evidence that the owner

28  either knew, or should have known after a reasonable inquiry,

29  that the property was being employed or was likely to be

30  employed in criminal activity.

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  1         (b)  A bona fide lienholder's interest that has been

  2  perfected in the manner prescribed by law prior to the seizure

  3  may not be forfeited under the Florida Contraband Forfeiture

  4  Act unless the seizing agency establishes by a preponderance

  5  of the evidence that the lienholder had actual knowledge, at

  6  the time the lien was made, that the property was being

  7  employed or was likely to be employed in criminal activity.

  8  If a lienholder's interest is not subject to forfeiture under

  9  the requirements of this section, such interest shall be

10  preserved by the court by ordering the lienholder's interest

11  to be paid as provided in s. 932.7055.

12         (c)  Property titled or registered between husband and

13  wife jointly by the use of the conjunctives "and," "and/or,"

14  or "or," in the manner prescribed by law prior to the seizure,

15  may not be forfeited under the Florida Contraband Forfeiture

16  Act unless the seizing agency establishes by a preponderance

17  of the evidence that the coowner either knew or had reason to

18  know, after reasonable inquiry, that such property was

19  employed or was likely to be employed in criminal activity.

20         (d)  A vehicle that is rented or leased from a company

21  engaged in the business of renting or leasing vehicles, which

22  vehicle was rented or leased in the manner prescribed by law

23  prior to the seizure, may not be forfeited under the Florida

24  Contraband Forfeiture Act unless the seizing agency

25  establishes by preponderance of the evidence that the renter

26  or lessor had actual knowledge, at the time the vehicle was

27  rented or leased, that the vehicle was being employed or was

28  likely to be employed in criminal activity.  When a vehicle

29  that is rented or leased from a company engaged in the

30  business of renting or leasing vehicles is seized under the

31  Florida Contraband Forfeiture Act, upon learning the address

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  1  or phone number of the company, the seizing law enforcement

  2  agency shall, as soon as practicable, inform the company that

  3  the vehicle has been seized and is available for the company

  4  to take possession.

  5         (7)  Any interest in, title to, or right to property

  6  titled or registered jointly by the use of the conjunctives

  7  "and," "and/or," or "or" held by a coowner, other than

  8  property held jointly between husband and wife, may not be

  9  forfeited unless the seizing agency establishes by a

10  preponderance of the evidence that the coowner either knew, or

11  had reason to know, after reasonable inquiry, that the

12  property was employed or was likely to be employed in criminal

13  activity.  When the interests of each culpable coowner are

14  forfeited, any remaining coowners shall be afforded the

15  opportunity to purchase the forfeited interest in, title to,

16  or right to the property from the seizing law enforcement

17  agency.  If any remaining coowner does not purchase such

18  interest, the seizing agency may hold the property in

19  coownership, sell its interest in the property, liquidate its

20  interest in the property, or dispose of its interest in the

21  property in any other reasonable manner.

22         (8)  It is an affirmative defense to a forfeiture

23  proceeding that the nexus between the property sought to be

24  forfeited and the commission of any underlying violation was

25  incidental or entirely accidental.  The value of the property

26  sought to be forfeited in proportion to any other factors must

27  not be considered in any determination as to this affirmative

28  defense.

29         Section 4.  This act shall take effect July 1 after the

30  year in which enacted.

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