Senate Bill sb2494

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 2494

    By Senator Alexander





    17-1575A-04                                        See HB 1423

  1                      A bill to be entitled

  2         An act relating to seizure and forfeiture of

  3         contraband; creating s. 810.091, F.S.;

  4         providing for contraband items to be seized by

  5         and forfeited to certain law enforcement

  6         agencies in certain circumstances related to

  7         trespass; specifying circumstances in which

  8         such seizure may occur; requiring the court to

  9         make a finding at the disposition of certain

10         criminal cases as to the use of a contraband

11         item; authorizing forfeiture in certain

12         circumstances; requiring forfeiture in certain

13         circumstances; defining the term "convicted";

14         providing circumstances in which forfeiture is

15         precluded due to a lack of certain knowledge by

16         the registered owner of a contraband item;

17         providing circumstances in which prima facie

18         evidence of such knowledge may be inferred;

19         providing that the rights, title, and interest

20         to a contraband item shall be ordered to the

21         seizing agency upon forfeiture, subject only to

22         the rights of bona fide lienholders; providing

23         for the return of the contraband item to the

24         registered owner in certain circumstances;

25         providing for written notice of the seizure to

26         specified persons; authorizing procedures for

27         providing such notice; requiring that the

28         notice be provided within a reasonable time;

29         specifying the contents of such notice;

30         providing a procedure for circumstances in

31         which the registered owner cannot be identified

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    Florida Senate - 2004                                  SB 2494
    17-1575A-04                                        See HB 1423




 1         or located; specifying circumstances in which

 2         the person from whom the contraband item was

 3         seized may be liable for loss to the registered

 4         owner; providing that the person who receives

 5         such notice must respond in certain

 6         circumstances; providing that the response must

 7         occur within a specified time and must contain

 8         certain information; authorizing the exclusion

 9         of certain evidence in certain circumstances;

10         authorizing the seizing agency to retain or

11         sell a contraband item subsequent to

12         forfeiture; providing for the allocation and

13         sharing of the value of a forfeited contraband

14         item among certain law enforcement agencies;

15         specifying that funds received by a law

16         enforcement agency are supplemental funds;

17         prohibiting a municipality, county, or state

18         from using such funds as replacement funds;

19         providing that the provisions of ch. 932, F.S.,

20         shall not apply to actions for seizure or

21         forfeiture; authorizing actions for seizure or

22         forfeiture under the Florida Contraband

23         Forfeiture Act in lieu of certain proceedings;

24         providing applicability; providing an effective

25         date.

26  

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

28  

29         Section 1.  Section 810.091, Florida Statutes, is

30  created to read:

31         810.091  Seizure and forfeiture of contraband.--

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CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2494
    17-1575A-04                                        See HB 1423




 1         (1)  Any item or equipment, including, but not limited

 2  to, motor vehicles, motorcycles, vessels, off-highway

 3  vehicles, all-terrain vehicles, off-highway motorcycles,

 4  tractors, tracked vehicles, or any other conveyance,

 5  regardless of its power source, used by any person in the

 6  commission of an offense provided in s. 810.09(1)(a)1. shall

 7  be considered a contraband item. Any such contraband item is

 8  subject to seizure by the law enforcement agency investigating

 9  an offense provided in s. 810.09(1)(a)1. The seizure of a

10  contraband item may occur contemporaneously with the arrest of

11  a person who is the subject of such investigation and who is

12  found to be in the possession of a contraband item or during

13  the course of the investigation, pursuant to a lawfully issued

14  search warrant. Upon seizure, a contraband item is subject to

15  forfeiture in favor of the investigating agency in accordance

16  with the provisions of this section.

17         (2)  Notwithstanding any sentence imposed or any

18  jurisdictional limitations on the amount in controversy, the

19  court having jurisdiction over the criminal prosecution of any

20  person for an offense provided in s. 810.09(1)(a)1. shall, at

21  the time of disposition of such offense, make a finding on the

22  record as to whether such person used any seized contraband

23  item in connection with such offense. Except as provided in

24  subsection (3), if the court finds that the item was used in

25  connection with such offense, and:

26         (a)  The person has not previously been convicted of an

27  offense provided in s. 810.09(1)(a)1., the court may order the

28  item forfeited to the seizing law enforcement agency.

29         (b)  The person has previously been convicted of an

30  offense provided in s. 810.09(1)(a)1., the court shall order

31  the item forfeited to the seizing law enforcement agency.

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    Florida Senate - 2004                                  SB 2494
    17-1575A-04                                        See HB 1423




 1  

 2  For purposes of this subsection, the term "convicted" refers

 3  to any disposition other than an acquittal for or a dismissal

 4  of the offense.

 5         (3)  If a person who has been found to have used a

 6  seized contraband item in connection with an offense provided

 7  in s. 810.09(1)(a)1. is not the registered owner of the

 8  contraband item, such item shall not be forfeited unless it is

 9  shown by a preponderance of the evidence that the registered

10  owner of the contraband item aided, abetted, or participated

11  in the offense or otherwise had reason to know that such

12  person would use the item in connection with the offense. For

13  purposes of this section, it is prima facie evidence that the

14  registered owner had reason to know that a person would use

15  the item in connection with a violation of s. 810.09(1)(a)1.

16  if such item was previously seized from such person under this

17  section.

18         (4)  Upon forfeiture under this section, the court

19  shall order all rights, title, and interest to the contraband

20  item to the seizing agency, subject only to the rights and

21  interests of bona fide lienholders. If the court does not

22  order forfeiture, the seizing agency shall return the item to

23  the registered owner.

24         (5)(a)  Upon any seizure of a contraband item under

25  this section, the seizing law enforcement agency shall make a

26  diligent effort to provide written notice of the seizure to

27  the registered owner of the item and, if other than the

28  registered owner, the person from whose possession the

29  contraband item was seized. Such notice shall include the

30  mailing and physical addresses of the seizing agency and shall

31  

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    Florida Senate - 2004                                  SB 2494
    17-1575A-04                                        See HB 1423




 1  explain the seizure and forfeiture provisions of this section,

 2  including the procedure for contesting a forfeiture.

 3         (b)  The notice described in paragraph (a) may be

 4  satisfied by certified mail within 14 days after the seizure.

 5  Notice must be provided in a reasonable time to allow the

 6  person receiving such notice a meaningful opportunity to be

 7  heard in a proceeding under subsection (2) or subsection (3).

 8         (c)  If the seizing agency cannot, after diligent

 9  inquiry, ascertain the identity of or locate an address for

10  the registered owner of the item, the seizing agency shall

11  file an affidavit with the court stating that the notice

12  required by paragraph (a) has not been accomplished and

13  attesting to its efforts to comply with the requirements of

14  paragraph (a). The affidavit shall be filed no later than 14

15  days prior to the date of any proceeding at which the issue of

16  forfeiture is decided. If the court is satisfied that the

17  seizing agency has made reasonable efforts to provide notice

18  as required by paragraph (a) and if an order of forfeiture is

19  subsequently entered in favor of the seizing agency, the court

20  shall include a finding in the sentencing order of the person

21  who was found to have used the contraband item in connection

22  with an offense provided in s. 810.09(1)(a)1. that such person

23  is liable to the registered owner of the item for any loss to

24  the owner as a result of the forfeiture.

25         (d)  Within 21 days after receiving a notice of

26  seizure, any person who intends to contest the forfeiture or

27  to otherwise seek the recovery of a contraband item must

28  provide written notice to the seizing agency of such intent.

29  Such notice must inform the seizing agency as to whether the

30  person intends to assert the innocence of the registered owner

31  as a defense to the forfeiture or seizure. Failure to provide

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    Florida Senate - 2004                                  SB 2494
    17-1575A-04                                        See HB 1423




 1  timely notice of intent to contest as described in this

 2  paragraph may constitute grounds for the court to exclude

 3  evidence in a proceeding under subsection (2) or subsection

 4  (3).

 5         (6)  Any municipal, county, or state law enforcement

 6  agency that investigates, enforces, or assists in

 7  investigating or enforcing the provisions of s.

 8  810.09(1)(a)1., which investigation or enforcement results in

 9  any forfeiture of a contraband item, is entitled to receive

10  all or a share of the value of any such item based upon its

11  participation in such investigation or enforcement. Any

12  contraband item forfeited in favor of the seizing agency may

13  be retained or sold by the agency. Any funds received by a law

14  enforcement agency pursuant to this subsection shall

15  constitute supplemental funds and may not be used as

16  replacement funds by any municipality, county, or state.

17         (7)  The provisions of chapter 932 shall not apply to

18  any seizure or forfeiture action initiated under this section.

19  Nothing herein shall be construed to limit any action under

20  the provisions of the Florida Contraband Forfeiture Act in

21  lieu of any action for seizure of forfeiture under this

22  section.

23         Section 2.  This act shall take effect July 1, 2004,

24  and shall apply to offenses committed on or after that date.

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