13-4312
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13-4312. Judicial in personam forfeiture proceedings A. If a forfeiture is authorized by law, it shall be ordered by a court on proceedings by the state in an in personam civil or criminal action pursuant to section 13-2313 or 13-2314 or any other law providing for a forfeiture. B. Any complaint, information or indictment alleging or charging one or more offenses included in section 13-2301, subsection D, paragraph 4 or a violation of section 13-2312, or any other offense giving rise to forfeiture under this title, shall set forth with reasonable particularity property that the state seeks to forfeit pursuant to this section in that action, if any. The court shall allow the allegation that particular new or different or differently described property is subject to forfeiture in an in personam criminal or civil case to be made at any time prior to the date the case is actually tried unless the allegation is filed fewer than twenty days before the case is actually tried, and the court finds on the record that the defendant was in fact prejudiced by the untimely filing and states reasons for these findings, provided that when the allegation is filed, the state must make available to the defendant a copy of any material information concerning the allegation. C. In any proceeding pursuant to this section, the court, on application of the state, may enter any order authorized by section 13-4310, subsection A or take any other action to seize, secure, maintain or preserve the availability of property subject to forfeiture under this title, including a warrant for its seizure, whether before or after the filing of a complaint, indictment or information. D. Notwithstanding subsection E of this section, a temporary restraining order under this section may be entered on application of the state without notice or an opportunity for a hearing if the state demonstrates both that: 1. There is probable cause to believe that the property with respect to which the order is sought would, in the event of final judgment or conviction, be subject to forfeiture under this title. 2. Provision of notice will jeopardize the availability of the property for forfeiture. A temporary restraining order expires within ten days after the date on which it is entered unless the party against whom it is entered consents to an extension for a longer period or unless after commencing a hearing the court enters or is considering a preliminary injunction. E. Notice of the entry of the restraining order and an opportunity for a hearing shall be afforded to persons known to have an interest in the property, whether or not a temporary restraining order is entered without notice. The hearing, however, is limited to the issues of whether both: 1. There is a probability 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, concealed or otherwise made unavailable for forfeiture. 2. The need to preserve the availability of property through the entry of the requested order outweighs the hardship on any owner, interest holder or defendant against whom the order is to be entered. F. A hearing requested by any owner or interest holder concerning an order entered under this section shall be held at the earliest possible time and before the expiration of a temporary order. G. On a determination of liability or the conviction of a person for conduct giving rise to forfeiture under this title, the court shall enter a judgment of forfeiture of the property described in the forfeiture statute alleged and set out in the complaint, information or indictment, as amended, and shall also authorize the county attorney or attorney general, their agents or any peace officer to seize all property ordered forfeited that was not previously seized or is not then under seizure. Following the entry of an order declaring the property forfeited, the court, on application of the state, may enter any order authorized by section 13-4310, subsection A or take any other action to protect the interest of this state or a political subdivision in the property ordered forfeited. The filing of the order of forfeiture in the appropriate public records perfects the interest of the state in the property described in the order as of the earlier of the date of the act or omission giving rise to forfeiture or the date that a notice of seizure for forfeiture or notice of pending forfeiture or racketeering lien was first filed in the records, which entitles the state to all rights of a secured party as to that property in addition to any other rights or remedies of the state in relation to the property. Any income accruing to, or derived from, an enterprise or any interest in an enterprise or other property interest that is forfeited under this chapter is also forfeited from the time of the conduct giving rise to forfeiture. It may be used pending procedures subsequent to a verdict or finding of liability to offset ordinary and necessary expenses of the enterprise or property as required by law or that are necessary to protect the interests of this state or a political subdivision. H. Procedures subsequent to the verdict or finding of liability and order of forfeiture shall be as follows: 1. Following the entry of an order of forfeiture under this subsection the clerk of the court shall, and the attorney for the state may, give notice of pending forfeiture to all owners and interest holders who have not previously been given notice, if any, in the manner provided in section 13-4307. 2. An owner of or interest holder in property that has been ordered forfeited pursuant to such action whose claim is not precluded may file a claim as described in section 13-4311, subsections E and F in the court for a hearing to adjudicate the validity of his claimed interest in the property within thirty days after initial notice of pending forfeiture or after notice under paragraph 1 of this subsection, whichever is earlier. 3. The hearing on the claim, to the extent practicable and consistent with the interest of justice, shall be held within sixty days after the order of forfeiture. The court may consolidate the hearing on the claim with a hearing on any other claim filed by a person other than a party or defendant in the underlying action and concerning the same property. 4. The hearing shall be held by the court without a jury and conducted in the manner provided for in rem judicial forfeiture actions including the provisions of section 13-4311, subsections J and K. In addition to testimony and evidence presented at the hearing, the court shall consider the relevant portions of the record of the underlying civil or criminal action that resulted in the order of forfeiture. 5. In accordance with its findings at the hearing, the court may amend the order of forfeiture if it determines that any claimant has established by a preponderance of the evidence that the claimant is an owner of or interest holder in the property if either of the following applies: (a) The state has failed to establish by a preponderance of the evidence that the interest is subject to forfeiture under section 13-4304. (b) The claimant has established by a preponderance of the evidence that the interest is exempt from forfeiture under section 13-4304. I. In order to facilitate the identification or location of property declared forfeited and to facilitate the disposition of filed or subsequent claims pursuant to subsection H, paragraph 2 of this section, the court, on application of the state, may order that the testimony of any witness relating to the property forfeited or alleged to be subject to forfeiture be taken by deposition and that any designated book, paper, document, record, recording, electronic or otherwise, or other material which is not privileged be produced at the same time and place and in the same manner as that provided for the taking of depositions under the rules of civil procedure. |