H 4286 Session 109 (1991-1992)
H 4286 General Bill, By Wilkins, T.E. Huff, Jennings and J.W. Tucker
A Bill to amend Section 44-53-530, as amended, Code of Laws of South Carolina,
1976, relating to drug forfeiture procedures, disposition of forfeited items,
and disposition of sales of forfeited items, so as to make permanent the
temporary disposition provisions of Act 604 of 1990, including the
distribution of twenty percent of forfeited property to prosecution agencies.
01/28/92 House Introduced and read first time HJ-10
01/28/92 House Referred to Committee on Judiciary HJ-10
A BILL
TO AMEND SECTION 44-53-530, AS AMENDED, CODE OF LAWS
OF SOUTH CAROLINA, 1976, RELATING TO DRUG FORFEITURE
PROCEDURES, DISPOSITION OF FORFEITED ITEMS, AND
DISPOSITION OF SALES OF FORFEITED ITEMS, SO AS TO
MAKE PERMANENT THE TEMPORARY DISPOSITION
PROVISIONS OF ACT 604 OF 1990, INCLUDING THE
DISTRIBUTION OF TWENTY PERCENT OF FORFEITED
PROPERTY TO PROSECUTION AGENCIES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 44-53-530 of the 1976 Code, as amended by
Act 604 of 1990, is further amended to read:
"Section 44-53-530. (a) Forfeiture of property defined in
Section 44-53-520 must be accomplished by petition of the Attorney
General or his designee or the circuit solicitor or his designee to the
court of common pleas for the jurisdiction where the items were seized.
The petition must be submitted to the court within a reasonable time
period following seizure and shall set forth the facts upon which the
seizure was made. The petition shall describe the property and include
the names of all owners of record and lienholders of record. The petition
shall identify any other persons known to the petitioner to have interests
in the property. Petitions for the forfeiture of conveyances shall also
include the following information: the make, model, and year of the
conveyance, the person in whose name the conveyance is registered, and
the person who holds the title to the conveyance. The petition shall set
forth the type and quantity of the controlled substance involved. A copy
of the petition must be sent to each law enforcement agency which has
notified the petitioner of its involvement in the seizure. Notice of
hearing or rule to show cause must be directed to all persons with
interests in the property listed in the petition including law enforcement
agencies which have notified the petitioner of their involvement in the
seizure. Owners of record and lienholders of record may be served by
certified mail to the last known address as appears in the records of the
governmental agency which records the title or lien.
The judge shall determine whether the property is subject to
forfeiture and order the forfeiture confirmed. If the judge finds a
forfeiture, he shall then determine the lienholder's interest as provided
in this article. The judge shall determine whether any property must be
returned to a law enforcement agency pursuant to Section 44-53-582.
If there is a dispute as to the division of the proceeds of forfeited
property among participating law enforcement agencies, this issue must
be determined by the judge. The proceeds from a sale of property,
conveyances, and equipment must be disposed of pursuant to subsection
(b) of this section.
All property, conveyances, and equipment which will not be reduced
to proceeds may be transferred to the law enforcement agency or
agencies or to the prosecution agency. Upon agreement of the law
enforcement agency or agencies and the prosecution agency,
conveyances and equipment may be transferred to any other appropriate
agency or agencies. Property transferred may not be used to supplant
operating funds within the current or future budgets.
Any forfeiture may be effected by consent order approved by the
court without filing or serving pleadings or notices provided that all
owners and other persons with interests in the property, including
participating law enforcement agencies, entitled to notice under this
section, except lienholders and agencies, consent to the forfeiture.
Disposition of the property may be accomplished by consent of the
petitioner and those agencies involved. Persons entitled to notice under
this section may consent to some issues and have the judge determine
the remaining issues.
(b) (1) If the property is seized by a state law enforcement agency
and is not transferred by the court to the seizing agency, the judge shall
order it transferred to the Division of General Services for sale. Proceeds
may be used by the division for payment of all proper expenses of the
proceedings for the forfeiture and sale of the property, including the
expenses of seizure, maintenance, and custody and other costs incurred
by the implementation of this section. The net proceeds from any sale
must be remitted to the State Treasurer as provided in subsection (d) of
this section. The Division of General Services may authorize payment
of like expenses in cases where monies, negotiable instruments, or
securities are seized and forfeited.
(2) If the property is seized by a local law enforcement agency and
is not transferred by the court to the agency, the judge shall order it sold
at public auction by the seizing agency as provided by law.
Notwithstanding any other provision of the law, proceeds from the sale
may be used by the agency for payment of all proper expenses of the
proceeding for the forfeiture and sale of the property, including the
expenses of the seizure, maintenance, and custody and other costs
incurred by the implementation of this section. The net proceeds from
the sale must be disposed of as provided by this section.
(3) All real or personal property, conveyances, and equipment of any
value defined in Section 44-53-520, when reduced to proceeds, any cash
more than one thousand dollars, any negotiable instruments, and any
securities which are seized and forfeited must be disposed of as follows:
(A) ninety percent to the law enforcement agency or agencies; and
(B) ten percent must be remitted to the State Treasurer and deposited
to the credit of the general fund of the State.
(c) The first one thousand dollars of any cash seized and forfeited
pursuant to this article remains with and is the property of the law
enforcement agency which effected the seizure.
(d) All forfeited monies and proceeds from the sale of forfeited
property as defined by Section 44-53-520 must be retained by the
governing body of the local law enforcement agency or, in the case of
a state law enforcement agency, by the State Treasurer, and deposited
and maintained in a separate, special account in the name of each
appropriate agency. These accounts may be drawn on and used only by
the law enforcement agency for drug enforcement activities. These
accounts may not be used to supplant operating funds within the current
or future budgets. Any expenditures from these accounts for an item
that would be a recurring expense to the governing body must be
approved by the governing body before the purchase or, in the case of
a state law enforcement agency, approved as provided by law. All
expenditures from these funds must be documented, and the
documentation must be available for audit purposes. (1)(a) Forfeiture of property defined in Section 44-53-520 must be
accomplished by petition of the Attorney General or his designee or the
circuit solicitor or his designee to the court of common pleas for the
jurisdiction where the items were seized. The petition must be submitted
to the court within a reasonable time period following seizure and shall
set forth the facts upon which the seizure was made. The petition shall
describe the property and include the names of all owners of record and
leinholders of record. The petition shall identify any other persons
known to the petitioner to have interests in the property. Petitions for
the forfeiture of conveyances shall also include the following
information: the make, model, and year of the conveyance, the person
in whose name the conveyance is registered, and the person who holds
the title to the conveyance. The petition shall set forth the type and
quantity of the controlled substance involved. A copy of the petition
must be sent to each law enforcement agency which has notified the
petitioner of its involvement in effecting the seizure.
Notice of hearing or rule to show cause must be directed to all
persons with interests in the property listed in the petition including law
enforcement agencies which have notified the petitioner of their
involvement in effecting the seizure. Owners of record and leinholders
of record may be served by certified mail, to the last known address as
appears in the records of the governmental agency which records the
title or lien.
The judge shall determine whether the property is subject to
forfeiture and order the forfeiture confirmed. If the judge finds a
forfeiture, he shall then determine the lienholder's interest as provided
in this article. The judge shall determine whether any property must be
returned to a law enforcement agency pursuant to Section 44-53-582.
If there is a dispute as to the division of the proceeds of forfeited
property among participating law enforcement agencies, this issue must
be determined by the judge. The proceeds from a sale of property,
conveyances, and equipment must be disposed of pursuant to subsection
(e) of this section.
All property, conveyances, and equipment which will not be reduced
to proceeds may be transferred to the law enforcement agency or
agencies or to the prosecution agency. Upon agreement of the law
enforcement agency or agencies and the prosecution agency,
conveyances and equipment may be transferred to any other appropriate
agency. Property transferred must not be used to supplant operating
funds within the current or future budgets.
(b) If the property is seized by a state law enforcement agency
and is not transferred by the court to the seizing agency, the judge shall
order it transferred to the Division of General Services for sale.
Proceeds may be used by the division for payment of all proper expenses
of the proceedings for the forfeiture and sale of the property, including
the expenses of seizure, maintenance, and custody, and other costs
incurred by the implementation of this section. The net proceeds from
any sale must be remitted to the State Treasurer as provided in
subsection (g) of this section. The Division of General Services may
authorized payment of like expenses in cases where monies, negotiable
instruments, or securities are seized and forfeited.
(c) If the property is seized by a local law enforcement agency
and is not transferred by the court to the agency, the judge shall order it
sold at public auction by the seizing agency as provided by law.
Notwithstanding any other provision of the law, proceeds from the sale
may be used by the agency for payment of all proper expenses of the
proceeding for the forfeiture and sale of the property, including the
expenses of the seizure, maintenance, and custody and other costs
incurred by the implementation of this section. The net proceeds from
the sale must be disposed of as provided by this section.
(d) Any forfeiture may be effected by consent order approved
by the court without filing or serving pleadings or notices provided that
all owners and other persons with interests in the property, including
participating law enforcement agencies, entitled to notice under this
section, except lienholders and agencies, consent to the forfeiture.
Disposition of the property may be accomplished by consent of the
petitioner and those agencies involved. Persons entitled to notice under
this section may consent to some issues and have the judge determine
the remaining issues.
All proceeds of property and cash forfeited by consent order must be
disposed of as provided in subsection (e) of this section.
(e) All real or personal property, conveyances, and equipment of
any value defined in Section 44-53-520, when reduced to proceeds, any
cash more than one thousand dollars, any negotiable instruments, and
any securities which are seized and forfeited must be disposed of as
follows:
(1) seventy-five percent to the law enforcement agency or
agencies;
(2) twenty percent to the prosecuting agency; and
(3) five percent must be remitted to the State Treasurer and
deposited to the credit of the general fund of the State.
(f) The first one thousand dollars of any cash seized and forfeited
pursuant to this article remains with and is the property of the law
enforcement agency which effected the seizure unless otherwise agreed
to by the law enforcement agency and prosecuting agency.
(g) All forfeited monies and proceeds from the sale of
forfeited property as defined in Section 44-53-520 must be retained by
the governing body of the local law enforcement agency or prosecution
agency and deposited in a separate, special account in the name of each
appropriate agency. These accounts may be drawn on and used only by
the law enforcement agency or prosecution agency for which the
account was established. For law enforcement agencies, the accounts
must be used for drug enforcement activities and for prosecution
agencies, the accounts must be used in matters relating to the
prosecution of drug offenses and litigation of drug related matters.
These accounts must not be used to supplant operating funds in the
current or future budgets. Any expenditures from these accounts for an
item that would be a recurring expense must be approved by the
governing body before purchase or, in the case of a state law
enforcement agency or prosecution agency, approved as provided by
law.
In the case of a state law enforcement agency or state prosecution
agency, monies and proceeds must be remitted to the State Treasurer
who shall establish separate, special accounts as provided in this section
for local agencies.
All expenditures from these accounts must be documented, and the
documentation made available for audit purposes."
SECTION 2. This act takes effect upon approval by the Governor.
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