HF 357 (LSB 2388YH (3) 87)

HOUSE FILE 357

BY  HIGHFILL

A BILL FOR

An Act relating to asset forfeiture due to public offense convictions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 809A.1, subsection 4, Code 2017, is amended to read as follows:
   4.  “Proceeds” means property acquired directly or indirectly from, produced through, realized through, or caused by an act or omission constituting a public offense and includes any property of any kind without reduction for expenses incurred for acquisition, maintenance, production, or any other purpose.
    Sec. 2.  Section 809A.2, subsection 2, Code 2017, is amended to read as follows:
   2.  In addition to the venue provided for under chapter 803 or any other provision of law, a proceeding for forfeiture under this chapter may be maintained in the county in which any part of the property is found or in the county in which a civil or the criminal action could be maintained was brought or a civil action could be brought against an owner or interest holder for the conduct alleged to give which gave rise to the forfeiture.
    Sec. 3.  Section 809A.3, Code 2017, is amended to read as follows:
   809A.3  Conduct giving rise to forfeiture.
   1.  The following conduct may give rise to forfeiture:
   a.  An act or omission which is A conviction of a public offense and, including an inchoate or preparatory offense, which is a serious or aggravated misdemeanor or felony.
   b.  An act or omission occurring A conviction outside of this state, that would be is punishable by confinement of one year or more in the place of occurrence and would be a serious or aggravated misdemeanor or felony if the act or omission occurred in this state.
   c.  An act or omission committed in furtherance of any act or omission described in paragraph “a”, which is a serious or aggravated misdemeanor or felony, including any inchoate or preparatory offense.
   2.  Notwithstanding subsection 1, violations of convictions under chapter 321 or 321J shall not be considered conduct giving rise to forfeiture, except for violations convictions of the following:
   a.  Section 321.232.
   b.  A second or subsequent violation of section 321J.4B, subsection 2, paragraph “a”, subparagraph (2).
   c.  Section 321J.4B, subsection 9.
   3.  For purposes of this section, “conviction” includes a finding of guilt, a plea of guilty, deferred judgment, deferred or suspended sentence, adjudication of delinquency, or circumstance where a person is not charged with a criminal offense that is a serious or aggravated misdemeanor or felony related to the action for forfeiture based in whole or in part on the person’s agreement to provide information regarding the criminal activity of another person.
    Sec. 4.  Section 809A.5, subsection 2, paragraph b, Code 2017, is amended to read as follows:
   b.  The owner or interest holder is criminally responsible convicted of a public offense, including an inchoate or preparatory offense, that is a serious or aggravated misdemeanor or felony, or is convicted outside of this state for a crime that is punishable by confinement of one year or more in the place of occurrence and would be a serious or aggravated misdemeanor or felony in this state for the conduct giving rise to its the forfeiture, whether or not the owner or interest holder is prosecuted or convicted.
    Sec. 5.  Section 809A.8, subsection 1, paragraph a, subparagraph (2), Code 2017, is amended to read as follows:
   (2)  File a judicial forfeiture proceeding within ninety days after notice of pending forfeiture of property upon which a proper claim has been timely filed pursuant to section 809A.11 the conclusion of the criminal prosecution.
    Sec. 6.  Section 809A.8, subsection 1, paragraph d, unnumbered paragraph 1, Code 2017, is amended to read as follows:
   If a petition is timely filed, the prosecuting attorney may delay filing a judicial forfeiture proceeding for one hundred eighty days after the notice of pending forfeiture conclusion of the criminal prosecution, and the following procedures shall apply:
    Sec. 7.  Section 809A.12, Code 2017, is amended by adding the following new subsections:
   NEW SUBSECTION.  1A.  A judicial forfeiture proceeding is independent of any criminal prosecution and shall not be brought unless the criminal prosecution resulted in a conviction, as defined under section 809A.3.
   NEW SUBSECTION.  7A.  The state must prove by clear and convincing evidence that the property is an instrument or represents the proceeds of the underlying offense.
    Sec. 8.  Section 809A.12, subsection 6, Code 2017, is amended to read as follows:
   6.  A defendant convicted in any criminal proceeding is precluded from later denying the essential allegations of the criminal offense of which the defendant was convicted in any proceeding pursuant to this section. For the purposes of this section, a conviction results from a verdict or a plea of guilty. A defendant whose conviction is overturned on appeal may file a motion to correct, vacate, or modify a judgment of forfeiture under this subsection.
    Sec. 9.  Section 809A.12, subsection 10, paragraph a, Code 2017, is amended by striking the paragraph.
    Sec. 10.  Section 809A.12, subsections 14 and 15, Code 2017, are amended by striking the subsections.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to asset forfeiture proceedings due to public offense convictions.
   Asset forfeiture is a process by which contraband and proceeds or instrumentalities related to criminal activity may be seized by the state and sold.
   Under current law, conduct giving rise to forfeiture is an act or omission which is a crime. However, an acquittal or dismissal in a criminal proceeding does not preclude forfeiture proceedings.
   The bill requires a criminal conviction before a person’s property is subject to forfeiture. “Conviction” includes a finding of guilt, a plea of guilty, deferred judgment, deferred or suspended sentence, adjudication of delinquency, or circumstance where a person is not charged with a criminal offense that is a serious or aggravated misdemeanor or felony related to the action for forfeiture, based in whole or in part on the person’s agreement to provide information regarding the criminal activity of another person.
   The bill provides that forfeiture proceedings may only be brought after a criminal conviction and that a court may only order forfeiture of property if the state proves by clear and convincing evidence that the property was an instrument or represents the proceeds of the underlying criminal offense.