§ 7-15-3.1. Criminal forfeiture procedures.
(a) The attorney general shall set forth with reasonable particularity the property that
the attorney general seeks to forfeit pursuant to this chapter.
(b) The court may, upon application of the attorney general, enter a restraining order
or injunction, require any person claiming any interest in the subject property to
execute a satisfactory performance bond to the state, or take any other action to
preserve the availability of property subject to forfeiture described in this section,
whether prior or subsequent to the filing of a complaint, indictment, or information.
An order entered prior to the filing of a complaint, indictment, or information is
effective for not more than ninety (90) days, unless extended by the court for good
cause shown for not more than an additional ninety (90) days, or unless a complaint,
indictment, or information has been filed during the period.
(c) Written notice and an opportunity for a hearing prior to any action by the court shall
be afforded to persons appearing to have an interest in the property. The hearing,
however, is to be limited to the issues of whether:
(1) Based on the preponderance of the evidence that the state will prevail on the issue
of forfeiture and that failure to enter the order will result in the property being
destroyed, conveyed, encumbered or further encumbered, removed from the jurisdiction
of the court, or otherwise made unavailable for forfeiture; and
(2) The need to preserve the availability of property through the entry of the requested
order outweighs the hardship on any party against whom the order is to be entered.
(d) A temporary restraining order under this section with respect to the property may
be entered upon application of the attorney general without notice or opportunity
for a hearing when a complaint, information, or indictment has not yet been filed,
if the attorney general demonstrates that there is probable cause to believe that
the property as to which the order is sought would, in the event of conviction, be
subject to forfeiture under this section and that provision of notice will jeopardize
the availability of the property for forfeiture. The temporary restraining order expires
within ten (10) days of the date on which it is entered, unless extended for good
cause shown for not more than an additional ten (10) days, or unless the party against
whom it is entered consents to an extension for a longer period.
(1) A hearing requested by any party in interest concerning an order entered under this
subsection shall be held at the earliest possible time and prior to the expiration
of the temporary order.
(2) The court may receive and consider, at a hearing held pursuant to this subsection,
evidence and information that would be admissible under the rules of evidence.
(e)(1) Upon conviction of a person for a violation of this chapter, the court shall enter
a judgment of forfeiture to the state of the property described and shall also authorize
the attorney general to seize all property ordered forfeited upon any terms and conditions
that the court deems proper. Following the entry of an order declaring the property
forfeited, the court may, upon application of the attorney general, enter appropriate
restraining orders or injunctions; require the execution of satisfactory performance
bonds, appoint receivers, conservators, appraisers, accountants, or trustees; or take
any other action to protect the interest of the state in the property ordered forfeited.
Any income accruing to, or derived from, an enterprise or an interest in an enterprise
that has been ordered forfeited under this section may be used to offset ordinary
and necessary expenses of the enterprise as required by law and expenses that are
necessary to protect the interests of the state or innocent third parties.
(2) All right, title, and interest in property described in this section vests in the
state upon the commission of the act giving rise to forfeiture under this act. Any
property that is subsequently transferred to any person may be the subject of a special
verdict of forfeiture and subsequently shall be ordered forfeited to the state, unless
the transferee establishes in a hearing pursuant to subsection (f) that he or she
is a bona fide purchaser for value of the property who, at the time of purchase, was
reasonably without cause to believe that the property was subject for forfeiture.
(f) Procedures subsequent to the special verdict of forfeiture are as follows:
(1) Following the entry of an order of forfeiture under this section, the state shall
publish notice of the order and of its intent to dispose of the property for at least
seven (7) successive court days in any manner that the court orders. The state shall
also, to the extent practicable, provide written notice to all parties known to have
an interest in the property and all parties whose identity is reasonably subject to
discovery and who may have an interest in the forfeited property.
(2) Any person, other than the defendant, asserting an interest in property that has been
ordered forfeited to the state pursuant to this section may, within one hundred and
eighty (180) days of the final publication of notice or his, her, or its receipt of
notice as stated in this section, whichever is earlier, petition the court for a hearing
to adjudicate the validity of his, her, or its alleged interest in the property. The
hearing shall be held by the court without a jury.
(3) The petition shall be signed by the petitioner under penalty of perjury and shall
set forth the nature and extent of the petitioner's right, title, or interest in the
property; the time and circumstances of the petitioner's acquisition of the right,
title, or interest in the property; any additional facts supporting the petitioner's
claim; and the relief sought.
(4) The hearing on the petition shall, to the extent practicable and consistent with the
interest of justice, be held within thirty (30) days of the filing of the petition.
The court may consolidate the hearing on the petition with a hearing on any other
petition filed by a person other than the defendant and concerning the same property.
(5) At the hearing, the petitioner may testify and present evidence and witnesses on the
petitioner's own behalf, and cross examine witnesses who appear at the hearing. The
state may present evidence and witnesses in rebuttal and in defense of its claim to
the property and cross examine witnesses who appear at the hearing. In addition to
testimony and evidence presented at the hearing, the court shall consider the relevant
portions of the record of the criminal case that resulted in the order of forfeiture.
(6) In accordance with its findings at the hearing, the court shall amend the order of
forfeiture if it determines that the petitioner has established by a preponderance
of the evidence that the petitioner:
(i) Has a right, title, or interest in the property, and the right, title, or interest
was vested in the petitioner rather than the defendant or was superior to any right,
title, or interest of the defendant at the time of the commission of the acts which
gave rise to the forfeiture of the property under this section;
(ii) Is a bona fide purchaser for value of any right, title, or interest in the property
and was at the time of purchase reasonably without cause to believe that the property
was subject to forfeiture under this chapter; or
(iii) Was a victim of the violation of this chapter and is entitled to compensation pursuant
to §â€‚7-15-4(c), in which case the court shall order the escrow of a sufficient amount to satisfy
any judgment that may be obtained in an action brought pursuant to that section.
(7) Following the court's disposition of all petitions filed under this section, or if
no petitions are filed, following the expiration of the period provided in this section
for the filing of petitions, the state has clear title to property that is the subject
of the order of forfeiture and is able to transfer good and sufficient title to any
subsequent purchaser, transferee, or fund as provided in this section.
(8) Except as provided in this section, no party claiming an interest in property subject
to forfeiture under this section may:
(i) Intervene in a trial or appeal of a criminal case involving the forfeiture of property;
or
(ii) Commence any action against the state concerning the validity of the alleged interest
in the property subsequent to the filing of a complaint, information, or indictment
alleging that the property is subject to forfeiture.
(g) In order to facilitate the identification or location of property declared forfeited
and to facilitate the disposition of petitions filed pursuant to this section, after
the entry of an order declaring property forfeiture to the state, the court may, upon
application of the attorney general or the petitioner, order that the testimony of
any witness relating to the property forfeited be taken by deposition and that any
designated book, paper, document, record, recording (electronic or otherwise), or
other material not privileged be produced at the same time and place and in the same
manner as provided for the taking of depositions under the rules of civil procedure.
(h) If any of the property described in this section:
(1) Cannot be located;
(2) Has been transferred to, sold to, or deposited with a third party;
(3) Has been placed beyond the jurisdiction of the court;
(4) Has been substantially diminished in value by any act or omission of the defendant;
or
(5) Has been commingled with other property which cannot be divided without difficulty;
the court shall order the forfeiture of any other property of the defendant up to
the value of the subject property.
(i) The court has jurisdiction to enter orders as provided in this section regarding property
located within this state that may be subject to forfeiture under this chapter or
that has been ordered forfeited under this chapter.