Bill Text: GA SB321 | 2011-2012 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Secondary Metal Recyclers; comprehensive revision of provisions
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Engrossed - Dead) 2012-03-19 - House Committee Favorably Reported [SB321 Detail]
Download: Georgia-2011-SB321-Amended.html
12 AM
36 0350
Senators
Hill of the 32nd and Loudermilk of the 52nd offered the following
amendment:
Amend
the Senate Regulated Industries and Utilities Committee substitute to SB 321 by
inserting between lines 248 and 249 the following:
10-1-357.2.
(a)
When property is seized under Code Section 10-1-357.1, the sheriff or law
enforcement officer seizing the same shall report the seizure, within 20 days
thereof, to the district attorney of the judicial circuit having jurisdiction in
the county where the seizure was made. Within 60 days from the date he or she
receives notice of the seizure, the district attorney of the judicial circuit
shall cause to be filed in the superior court of the county in which the
property was seized or detained an in rem complaint for forfeiture of such
property as provided for in this Code section. The proceedings shall be brought
in the name of the state by the district attorney of the circuit in which the
property was seized, and the complaint shall be verified by a duly authorized
agent of this state in a manner required by the law of this state. The
complaint shall describe the property; state its location; state its present
custodian; state the name of the owner, if known to the duly authorized agent of
this state; allege the essential elements of the violation upon which the
forfeiture is based; and conclude with a prayer of due process to enforce the
forfeiture. Upon the filing of such a complaint, the court shall promptly cause
process to issue to the present custodian in possession of the property
described in the complaint, commanding him or her to seize the property
described in the complaint and to hold that property for further order of the
court. A copy of the complaint shall be served upon the owner or lessee, if
known, and upon any person having a duly recorded security interest in or lien
upon that property. If the owner or lessee is unknown, resides outside this
state, departs this state, cannot after due diligence be found within this
state, or conceals himself or herself so as to avoid service, notice of the
proceedings shall be published once a week for two weeks in the newspaper in
which the sheriff's advertisements are published. Such publication shall be
deemed notice to any and all persons having an interest in or right affected by
such proceeding and from any sale of the property resulting therefrom but shall
not constitute notice to any person having a duly recorded security interest in
or lien upon such property and required to be served under this Code section
unless that person is unknown, resides outside this state, departs this state,
cannot after due diligence be found within this state, or conceals himself or
herself to avoid service. An owner of or interest holder in the property may
file an answer asserting a claim against the property in the action in rem. Any
such answer shall be filed within 30 days after the service of the summons and
complaint. Where service is made by publication and personal service has not
been made, an owner or interest holder shall file an answer within 30 days of
the date of final publication. An answer shall be verified by the owner or
interest holder under penalty of perjury. In addition to complying with the
general rules applicable to an answer in civil actions, the answer shall set
forth:
(1)
The caption of the proceedings as set forth in the complaint and the name of the
claimant;
(2)
The address at which the claimant will accept mail;
(3)
The nature and extent of the claimant's interest in the property;
(4)
The date, identity of transferor, and circumstances of the claimant's
acquisition of the interest in the property;
(5)
The specific provision of this Code section relied on in asserting that the
property is not subject to forfeiture;
(6)
All essential facts supporting each assertion; and
(7)
The precise relief sought.
If
at the expiration of the period set forth in this subsection no answer has been
filed, the court shall order the disposition of the seized property as provided
for in this Code section. If an answer is filed, a hearing shall be held within
60 days after service of the complaint unless continued for good cause and shall
be held by the court without a jury. If the court determines that a claimant
defending the complaint knew or by the exercise of ordinary care should have
known that the property was to be used for an unlawful purpose subjecting it to
forfeiture under this Code section, the court shall order the disposition of the
seized property as provided in this Code section and that claimant shall have no
claim upon the property or proceeds from the sale thereof.
(b)(1)
When property is forfeited under Code Section 10-1-357.1, the judge of the
superior court of the county where the seizure was made or of the county in
which it can be proven that the crime was committed may dispose of the property
by issuing an order to:
(A)
Retain it for official use by any agency of this state or any political
subdivision thereof;
(B)
Sell that which is not required to be destroyed by law and which is not harmful
to the public. The proceeds shall be used for payment of all proper expenses of
the proceedings for forfeiture and sale, including but not limited to the
expenses of seizure, maintenance of custody, advertising, and court costs;
or
(C)
Require the sheriff or police chief of the county in which the seizure occurred
to take custody of the property and remove it for disposition in accordance with
law.
(2)(A)
Money, currency, or proceeds which are realized from the sale or disposition of
forfeited property shall after satisfaction of the interest of secured parties
and after payment of all costs vest in the local political subdivision whose law
enforcement officers seized it. If the property was seized by a municipal law
enforcement agency, then the money, currency, or proceeds realized from the sale
or disposition of the property shall vest in that municipality. If the property
was seized by a county law enforcement agency, then the money, currency, or
proceeds realized from the sale or disposition of the property shall vest in
that county. If the property was seized by joint action of a county law
enforcement agency and a municipal law enforcement agency, then the money,
currency, or proceeds realized from the sale or disposition of the property
shall vest in that county and that municipality and shall be divided equally
between the county and municipality. If the property was seized by a state law
enforcement agency, then the money, currency, or proceeds realized from the sale
or disposition of the property shall vest in the county where the condemnation
proceedings are filed. Except as otherwise provided in subparagraph (B) of
paragraph (1) of this subsection for payment of all costs, the local government
in which the money, currency, or proceeds realized from the forfeited property
vests shall expend or use such funds or proceeds received for any official law
enforcement purpose except for the payment of salaries or rewards to law
enforcement personnel, at the discretion of the chief officer of the local law
enforcement agency, or to fund victim-witness assistance programs. Such property
shall not be used to supplant any other local, state, or federal funds
appropriated for staff or operations.
(B)
Any local law enforcement agency receiving property under this subsection shall
submit an annual report to the local governing authority. The report shall be
submitted with the agency's budget request and shall itemize the property
received during the fiscal year and the utilization made
thereof.
