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