§ 39-11-708 — Procedure for judicial forfeiture of property

Tennessee § 39-11-708

• Jurisdiction: Tennessee
• Title: 39

Text

(a) If real or personal property is subject to forfeiture under this part, the attorney general may initiate an in rem forfeiture proceeding in the circuit, chancery, or general sessions court of the county where the property is located or where the conduct giving rise to forfeiture occurred. If the property is beyond the jurisdiction of the court, the attorney general may initiate an in personam action against the owner or interest holder if the owner or interest holder is subject to the jurisdiction of the court. The complaint shall state a description of the property to be forfeited and the reasons for forfeiture under this part. (b) If personal property is sought to be forfeited, the complaint shall state the date the forfeiture warrant was issued. However, no complaint shall be dismissed for defects or insufficiencies in the forfeiture warrant. The complaint shall be served by registered mail at the last known address of the owner, if known, or the person in possession at the time of seizure. In the event the owner or possessor of the property does not answer the complaint, the state may move for a default judgment. An interest holder shall, however, be served with the complaint for forfeiture prior to any disposition of the property. (c) The court shall proceed as soon as practicable to a hearing and determination of the issue of forfeiture. The state shall notify the appropriate state official or commissioner as to the pendency of the judicial forfeiture action when such property is pending administrative forfeiture action. The filing of a complaint under this section shall operate as a stay of any pending administrative forfeiture proceedings. The state shall have the burden to prove by a preponderance of the evidence that the property is subject to forfeiture under this part and that one (1) or more acts described in § 39-11-703 giving rise to forfeiture occurred after June 27, 1998, regardless of when the property was originally acquired, as long as the owner's interest in the property appreciated following the commission of an act giving rise to forfeiture. The forfeiture action shall be commenced within five (5) years after the conduct giving rise to forfeiture terminates or the cause of action accrues, whichever is later. Any party who claims an interest in the property subject to forfeiture must first establish by a preponderance of the evidence that the party is an owner or interest holder in the property seized before other evidence is taken. The claimant has the burden of establishing standing to assert the claim. Notwithstanding any other law, no other claims, pendent claims or counterclaims may be filed in an action for forfeiture under this part. (d) If real or personal property of a criminal defendant is to be forfeited as part of a criminal prosecution, the indictment or information must contain notice in a separate count that the state will seek forfeiture of property under this part and all property subject to forfeiture must be generally described within the separate count. By agreement of the state and the defendant, a general sessions court may enter upon the judgment of the case that the property is to be forfeited or returned. The state shall establish by a preponderance of the evidence that the property is subject to forfeiture under this part. If the forfeiture count includes property described in § 39-11-703(a) the state shall establish that one (1) or more acts described in § 39-11-703(a) giving rise to forfeiture occurred after June 27, 1998, regardless of when the property was originally acquired, as long as the defendant's interest in the property was acquired or appreciated following the commission of an act giving rise to forfeiture. If the forfeiture count includes property described in § 39-11-703(b) , the state shall establish that the property was used as an instrumentality in or used in furtherance of a violation of the law described in § 39-11-703(b) . As soon as practicable after entering a guilty verdict or accepting a plea of guilty or nolo contendere on any count in an indictment, presentment, or information with regard to which criminal forfeiture is sought, the court shall determine whether the state has established that the property is subject to forfeiture. The court's determination may be based on evidence already in the record, including any written plea agreement, or if forfeiture is contested on evidence or information presented by the parties at a sentencing hearing. Upon the request by the state or the defendant in a case in which a jury returns a verdict of guilty, the jury shall determine in a bifurcated hearing whether the state has established that the property is subject to forfeiture. The state and defendant may introduce evidence at the forfeiture hearing. If the jury or court finds that the state has met its burden of proof from all the evidence in the case, then each property determined to be subject to forfeiture shall be designated in a special verdict and forfeited in accordance with this part. The criminal forfeiture action shall be charged within five (5) years after the conduct giving rise to forfeiture terminates. If a third party who is not a defendant in the criminal action has an interest in any of the property described in the criminal forfeiture count of the indictment or information, then the state shall determine the rights of the third party in a separate civil forfeiture action under this part. (e) If the forfeiture count includes property described in § 39-11-703(a) , a rebuttable presumption exists that the property of any person is subject to forfeiture, if the state establishes all of the following: (1) The conduct giving rise to forfeiture occurred; (2) The person acquired the property during the period of the conduct giving rise to forfeiture or within a reasonable time after that period; and (3) There is no likely source for the property other than the conduct giving rise to forfeiture. (f) Property subject to forfeiture may be located in any county or state. Upon a finding by the court that the evidence establishes that the property is subject to forfeiture, the judge shall enter a judgment of forfeiture of all property subject to forfeiture and shall order that title to the property be vested in the state of Tennessee from the date that the conduct that gave rise to the forfeiture occurred, subject to any exemptions provided for in this part. (g) Upon entry of the judgment of forfeiture and the recording of the judgment in the county and state where the property is located, title to the property shall vest in the state and shall thereafter be disposed of as provided for in §§ 39-11-713 and 39-11-714 . If the property cannot be located or is beyond the jurisdiction of the court, the court shall enter a judgment against the owner equal to the value of the property ordered to be forfeited. The court may use its contempt powers to enforce any orders of forfeiture of property located beyond the jurisdiction of the court, and other orders in furtherance of the purpose of this part.

Legislative History

Amended by 2015 Tenn. Acts, ch. 180,s 2, eff. 7/1/2015. Amended by 2015 Tenn. Acts, ch. 180,s 1, eff. 7/1/2015. Acts 1998, ch. 979, § 8; 2001, ch. 381, § 2.