| 1 | A bill to be entitled |
| 2 | An act relating to seizure and forfeiture of contraband; |
| 3 | creating s. 810.091, F.S.; providing for contraband items |
| 4 | to be seized by and forfeited to certain law enforcement |
| 5 | agencies in certain circumstances related to trespass; |
| 6 | specifying circumstances in which such seizure may occur; |
| 7 | requiring the court to make a finding at the disposition |
| 8 | of certain criminal cases as to the use of a contraband |
| 9 | item; authorizing forfeiture in certain circumstances; |
| 10 | requiring forfeiture in certain circumstances; defining |
| 11 | the term "convicted"; providing circumstances in which |
| 12 | forfeiture is precluded due to a lack of certain knowledge |
| 13 | by the registered owner of a contraband item; providing |
| 14 | circumstances in which prima facie evidence of such |
| 15 | knowledge may be inferred; providing that the rights, |
| 16 | title, and interest to a contraband item shall be ordered |
| 17 | to the seizing agency upon forfeiture, subject only to the |
| 18 | rights of bona fide lienholders; providing for the return |
| 19 | of the contraband item to the registered owner in certain |
| 20 | circumstances; providing for written notice of the seizure |
| 21 | to specified persons; authorizing procedures for providing |
| 22 | such notice; requiring that the notice be provided within |
| 23 | a reasonable time; specifying the contents of such notice; |
| 24 | providing a procedure for circumstances in which the |
| 25 | registered owner cannot be identified or located; |
| 26 | specifying circumstances in which the person from whom the |
| 27 | contraband item was seized may be liable for loss to the |
| 28 | registered owner; providing that the person who receives |
| 29 | such notice must respond in certain circumstances; |
| 30 | providing that the response must occur within a specified |
| 31 | time and must contain certain information; authorizing the |
| 32 | exclusion of certain evidence in certain circumstances; |
| 33 | authorizing the seizing agency to retain or sell a |
| 34 | contraband item subsequent to forfeiture; providing for |
| 35 | the allocation and sharing of the value of a forfeited |
| 36 | contraband item among certain law enforcement agencies; |
| 37 | specifying that funds received by a law enforcement agency |
| 38 | are supplemental funds; prohibiting a municipality, |
| 39 | county, or state from using such funds as replacement |
| 40 | funds; providing that the provisions of ch. 932, F.S., |
| 41 | shall not apply to actions for seizure or forfeiture; |
| 42 | authorizing actions for seizure or forfeiture under the |
| 43 | Florida Contraband Forfeiture Act in lieu of certain |
| 44 | proceedings; providing applicability; providing an |
| 45 | effective date. |
| 46 |
|
| 47 | Be It Enacted by the Legislature of the State of Florida: |
| 48 |
|
| 49 | Section 1. Section 810.091, Florida Statutes, is created |
| 50 | to read: |
| 51 | 810.091 Seizure and forfeiture of contraband.-- |
| 52 | (1) Any item or equipment, including, but not limited to, |
| 53 | motor vehicles, motorcycles, vessels, off-highway vehicles, all- |
| 54 | terrain vehicles, off-highway motorcycles, tractors, tracked |
| 55 | vehicles, or any other conveyance, regardless of its power |
| 56 | source, used by any person in the commission of an offense |
| 57 | provided in s. 810.09(1)(a)1. shall be considered a contraband |
| 58 | item. Any such contraband item is subject to seizure by the law |
| 59 | enforcement agency investigating an offense provided in s. |
| 60 | 810.09(1)(a)1. The seizure of a contraband item may occur |
| 61 | contemporaneously with the arrest of a person who is the subject |
| 62 | of such investigation and who is found to be in the possession |
| 63 | of a contraband item or during the course of the investigation, |
| 64 | pursuant to a lawfully issued search warrant. Upon seizure, a |
| 65 | contraband item is subject to forfeiture in favor of the |
| 66 | investigating agency in accordance with the provisions of this |
| 67 | section. |
| 68 | (2) Notwithstanding any sentence imposed or any |
| 69 | jurisdictional limitations on the amount in controversy, the |
| 70 | court having jurisdiction over the criminal prosecution of any |
| 71 | person for an offense provided in s. 810.09(1)(a)1. shall, at |
| 72 | the time of disposition of such offense, make a finding on the |
| 73 | record as to whether such person used any seized contraband item |
| 74 | in connection with such offense. Except as provided in |
| 75 | subsection (3), if the court finds that the item was used in |
| 76 | connection with such offense, and: |
| 77 | (a) The person has not previously been convicted of an |
| 78 | offense provided in s. 810.09(1)(a)1., the court may order the |
| 79 | item forfeited to the seizing law enforcement agency. |
| 80 | (b) The person has previously been convicted of an offense |
| 81 | provided in s. 810.09(1)(a)1., the court shall order the item |
| 82 | forfeited to the seizing law enforcement agency. |
| 83 |
|
| 84 | For purposes of this subsection, the term "convicted" refers to |
| 85 | any disposition other than an acquittal for or a dismissal of |
| 86 | the offense. |
| 87 | (3) If a person who has been found to have used a seized |
| 88 | contraband item in connection with an offense provided in s. |
| 89 | 810.09(1)(a)1. is not the registered owner of the contraband |
| 90 | item, such item shall not be forfeited unless it is shown by a |
| 91 | preponderance of the evidence that the registered owner of the |
| 92 | contraband item aided, abetted, or participated in the offense |
| 93 | or otherwise had reason to know that such person would use the |
| 94 | item in connection with the offense. For purposes of this |
| 95 | section, it is prima facie evidence that the registered owner |
| 96 | had reason to know that a person would use the item in |
| 97 | connection with a violation of s. 810.09(1)(a)1. if such item |
| 98 | was previously seized from such person under this section. |
| 99 | (4) Upon forfeiture under this section, the court shall |
| 100 | order all rights, title, and interest to the contraband item to |
| 101 | the seizing agency, subject only to the rights and interests of |
| 102 | bona fide lienholders. If the court does not order forfeiture, |
| 103 | the seizing agency shall return the item to the registered |
| 104 | owner. |
| 105 | (5)(a) Upon any seizure of a contraband item under this |
| 106 | section, the seizing law enforcement agency shall make a |
| 107 | diligent effort to provide written notice of the seizure to the |
| 108 | registered owner of the item and, if other than the registered |
| 109 | owner, the person from whose possession the contraband item was |
| 110 | seized. Such notice shall include the mailing and physical |
| 111 | addresses of the seizing agency and shall explain the seizure |
| 112 | and forfeiture provisions of this section, including the |
| 113 | procedure for contesting a forfeiture. |
| 114 | (b) The notice described in paragraph (a) may be satisfied |
| 115 | by certified mail within 14 days after the seizure. Notice must |
| 116 | be provided in a reasonable time to allow the person receiving |
| 117 | such notice a meaningful opportunity to be heard in a proceeding |
| 118 | under subsection (2) or subsection (3). |
| 119 | (c) If the seizing agency cannot, after diligent inquiry, |
| 120 | ascertain the identity of or locate an address for the |
| 121 | registered owner of the item, the seizing agency shall file an |
| 122 | affidavit with the court stating that the notice required by |
| 123 | paragraph (a) has not been accomplished and attesting to its |
| 124 | efforts to comply with the requirements of paragraph (a). The |
| 125 | affidavit shall be filed no later than 14 days prior to the date |
| 126 | of any proceeding at which the issue of forfeiture is decided. |
| 127 | If the court is satisfied that the seizing agency has made |
| 128 | reasonable efforts to provide notice as required by paragraph |
| 129 | (a) and if an order of forfeiture is subsequently entered in |
| 130 | favor of the seizing agency, the court shall include a finding |
| 131 | in the sentencing order of the person who was found to have used |
| 132 | the contraband item in connection with an offense provided in s. |
| 133 | 810.09(1)(a)1. that such person is liable to the registered |
| 134 | owner of the item for any loss to the owner as a result of the |
| 135 | forfeiture. |
| 136 | (d) Within 21 days after receiving a notice of seizure, |
| 137 | any person who intends to contest the forfeiture or to otherwise |
| 138 | seek the recovery of a contraband item must provide written |
| 139 | notice to the seizing agency of such intent. Such notice must |
| 140 | inform the seizing agency as to whether the person intends to |
| 141 | assert the innocence of the registered owner as a defense to the |
| 142 | forfeiture or seizure. Failure to provide timely notice of |
| 143 | intent to contest as described in this paragraph may constitute |
| 144 | grounds for the court to exclude evidence in a proceeding under |
| 145 | subsection (2) or subsection (3). |
| 146 | (6) Any municipal, county, or state law enforcement agency |
| 147 | that investigates, enforces, or assists in investigating or |
| 148 | enforcing the provisions of s. 810.09(1)(a)1., which |
| 149 | investigation or enforcement results in any forfeiture of a |
| 150 | contraband item, is entitled to receive all or a share of the |
| 151 | value of any such item based upon its participation in such |
| 152 | investigation or enforcement. Any contraband item forfeited in |
| 153 | favor of the seizing agency may be retained or sold by the |
| 154 | agency. Any funds received by a law enforcement agency pursuant |
| 155 | to this subsection shall constitute supplemental funds and may |
| 156 | not be used as replacement funds by any municipality, county, or |
| 157 | state. |
| 158 | (7) The provisions of chapter 932 shall not apply to any |
| 159 | seizure or forfeiture action initiated under this section. |
| 160 | Nothing herein shall be construed to limit any action under the |
| 161 | provisions of the Florida Contraband Forfeiture Act in lieu of |
| 162 | any action for seizure of forfeiture under this section. |
| 163 | Section 2. This act shall take effect July 1, 2004, and |
| 164 | shall apply to offenses committed on or after that date. |