Bill Text: IN SB0215 | 2011 | Regular Session | Engrossed
Bill Title: Forfeiture.
Spectrum: Slight Partisan Bill (Democrat 2-1)
Status: (Vetoed) 2011-05-13 - Vetoed by the Governor [SB0215 Detail]
Download: Indiana-2011-SB0215-Engrossed.html
Citations Affected: IC 34-24; IC 36-2.
Effective: July 1, 2011.
(HOUSE SPONSOR _ FOLEY)
January 6, 2011, read first time and referred to Committee on Judiciary.
February 14, 2011, amended, reported favorably _ Do Pass. Pursuant to Senate Rule
68(b); reassigned to Committee on Appropriations.
February 17, 2011, reported favorably _ Do Pass.
February 21, 2011, read second time, amended, ordered engrossed.
February 22, 2011, engrossed. Read third time, passed. Yeas 49, nays 0.
March 28, 2011, read first time and referred to Committee on Judiciary.
April 4, 2011, amended, reported _ Do Pass.
Digest Continued
action only if the attorney general reviews the compensation agreement between the prosecuting attorney and the retained attorney, and requires that the compensation agreement with the attorney be capped at: (1) 33 1/3% of the first $10,000; (2) 25% of the amount between $10,000 and $100,000; and (3) 20% of the amount that is at least $100,000; unless a court finds that the forfeiture action is unusually complex. Requires a court to notify the Indiana criminal justice institute of the amount and manner of a forfeiture distribution. Provides that a deputy prosecuting attorney who engages in a forfeiture action for the prosecuting attorney's office may not receive a contingency fee.
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A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
(b) If the prosecuting attorney fails to meet the burden of proof, the court shall order the property released to the owner.
(c) If the court enters judgment in favor of the state, or the state and a unit (if appropriate), the court, subject to section 5 of this chapter, shall order delivery to the law enforcement agency that seized the property. The court's order may permit the agency to use the property for a period not to exceed three (3) years. However, the order must require that, after the period specified by the court, the law
enforcement agency shall deliver the property to the county sheriff for
public sale.
(d) If the court enters judgment in favor of the state, or the state and
a unit (if appropriate), the court shall, subject to section 5 of this
chapter,
(1) determine the amount of law enforcement costs; and
(2) order that:
(A) (1) the property, if it is not money or real property, be sold
under section 6 of this chapter, by the sheriff of the county in
which the property was seized, and if the property is a vehicle,
this sale must occur after any period of use specified in subsection
(c);
(B) (2) the property, if it is real property, be sold in the same
manner as real property is sold on execution under IC 34-55-6;
(C) the proceeds of the sale or the money be:
(i) deposited in the general fund of the state, or the unit that
employed the law enforcement officers that seized the
property; or
(ii) deposited in the general fund of a unit if the property
was seized by a local law enforcement agency of the unit for
an offense, an attempted offense, or a conspiracy to commit
an offense under IC 35-47 as part of or in furtherance of an
act of terrorism; and
(D) any excess in value of the proceeds or the money over the law
enforcement costs be forfeited and transferred to the treasurer of
state for deposit in the common school fund. and
(3) the proceeds of the sale or the money shall be transferred
to the county auditor for deposit in the county's asset
forfeiture account, established by ordinance, for distribution
as follows:
(A) The court may order not more than thirty-three and
one-third percent (33 1/3%) of the proceeds of the sale or
the money to be transferred as an administrative fee to:
(i) the prosecuting attorney's office if an attorney was
not retained under a compensation agreement under
section 8 of this chapter; or
(ii) an attorney retained by the prosecuting attorney
under a compensation agreement under section 8 of this
chapter.
(B) After the administrative fee is deducted under clause
(A):
(i) twelve percent (12%) of the remaining money or sale
proceeds shall be transferred to the county auditor for
deposit in the county school security fund established
under IC 36-2-22;
(ii) five percent (5%) of the remaining money or sale
proceeds shall be distributed to the county's county
offender fund established under IC 36-2-21; and
(iii) eighty-three percent (83%) of the remaining money
or sale proceeds shall be distributed to the county
auditor for distribution to law enforcement agencies, as
directed by the court, as provided in subsection (e).
(e) The distribution under subsection (d)(3)(B)(iii) must be made
as follows:
(1) Under a claim submitted by the prosecuting attorney.
(2) Under a claim submitted by the county auditor, that has
been approved by the county commissioner.
(3) In accordance with the terms of an interlocal agreement or
memorandum of understanding among local, state,
out-of-state, and federal law enforcement agencies and the
prosecuting attorney, if applicable.
(4) If there is no interlocal agreement or memorandum of
understanding among local, state, out-of-state, and federal
law enforcement agencies and the prosecuting attorney, the
court may distribute remaining proceeds among local, state,
out-of-state, and federal law enforcement agencies and the
prosecuting attorney.
(e) (f) If property that is seized under this chapter (or IC 34-4-30.1-4
before its repeal) is transferred:
(1) after its seizure, but before an action is filed under section 3
of this chapter (or IC 34-4-30.1-3 before its repeal); or
(2) when an action filed under section 3 of this chapter (or
IC 34-4-30.1-3 before its repeal) is pending;
the person to whom the property is transferred must establish an
ownership interest of record as a bona fide purchaser for value. A
person is a bona fide purchaser for value under this section if the
person, at the time of the transfer, did not have reasonable cause to
believe that the property was subject to forfeiture under this chapter.
(f) (g) If the property seized was an unlawful telecommunications
device (as defined in IC 35-45-13-6) or plans, instructions, or
publications used to commit an offense under IC 35-45-13, the court
may order the sheriff of the county in which the person was convicted
of an offense under IC 35-45-13 to destroy as contraband or to
otherwise lawfully dispose of the property.
(h) This subsection applies to every forfeiture action, including
a forfeiture action that is the result of a settlement. Every
forfeiture action must be filed with a court. Except for money or
property seized under this chapter that is transferred to a federal
authority under IC 34-24-1-9, money or other proceeds from a
forfeiture action may only be disbursed in accordance with this
section.
(i) As soon as practicable after the proceeds of the forfeiture
have been distributed, the court shall notify the Indiana criminal
justice institute of the amount and manner of the distribution.
(b) When property is sold at a public sale under this chapter, the proceeds shall be distributed in the following order:
(1) First, to the sheriff of the county for all expenditures made or incurred in connection with the sale, including storage, transportation, and necessary repair.
(2) Second, to any person:
(A) holding a valid lien, mortgage, land contract, or interest under a conditional sales contract or the holder of other such interest; or
(B) who is a co-owner and has an ownership interest;
up to the amount of that person's interest as determined by the court.
(3) The remainder, if any, shall be transferred by the sheriff to the appropriate fund as ordered by the court in
(b) The compensation agreement between a prosecuting attorney and an attorney retained to bring an action under this chapter must be:
(1) in writing; and
(2) approved by the attorney general for form and legality.
(c) Except as provided in subsection (d), a compensation agreement between a prosecuting attorney and an attorney retained to bring an action under this chapter may be established under a contingency fee agreement limited as follows:
(1) The contingency fee may not exceed thirty-three and one-third percent (33 1/3%) of the first ten thousand dollars ($10,000) of proceeds or money obtained under a settlement or judgment.
(2) The contingency fee may not exceed twenty-five percent (25%) of the part of the proceeds or money obtained pursuant to a settlement or judgment that is more than ten thousand dollars ($10,000) and less than one hundred thousand dollars ($100,000).
(3) The contingency fee may not exceed twenty percent (20%) of the part of the proceeds or money obtained under a settlement or judgment that is at least one hundred thousand dollars ($100,000).
(d) A court may authorize a compensation agreement between a prosecuting attorney and an attorney retained to bring an action under this chapter that exceeds the limits established in subsection (c) if the court finds that the issues presented in a particular forfeiture action are unusually complex or time consuming as compared with other forfeiture actions.
(f) A prosecuting attorney may request the assistance of the attorney general in bringing an action under this chapter. The attorney general may decline to provide assistance.
(g) If an attorney retained under this section is paid on a contingency or percentage basis, the value of seized property used to calculate the attorney's fee is, unless otherwise ordered by a court:
(1) for currency, the value of the seized currency; and
(2) for other property, the amount realized from the sale of the property at auction.
Chapter 21. County Offender Fund
Sec. 1. (a) A county shall, by resolution, establish a county offender fund to receive money that may be used to defray the expenses of incarcerating, supervising, or treating offenders housed in the county, in particular those offenders housed locally
who may have previously been transferred to the department of
correction.
(b) Money in the fund may be spent only under an
appropriation from the county fiscal body. In appropriating money
from the fund, the fiscal body shall give first priority to programs
that defray the expense of housing an offender in jail, second
priority to probation and community corrections programs, and
third priority to problem solving courts and work release
programs.
Chapter 22. County School Security Fund
Sec. 1. (a) A county shall, by resolution, establish a county school security fund to receive money that may be used to assist public school districts with school security needs.
(b) Money in the fund may be spent only under an appropriation from the county fiscal body.
