Sections 932.701-704 of the Florida Statutes are used by law enforcement to seize property that is connected to almost any criminal activity. A prosecuting authority in the State of Florida can make a claim on property by establishing that the property is contraband, was obtained with the proceeds of crime, or is an instrumentality of a crime. For property to be considered an instrumentality, it must have been intended to be used as the means of committing a criminal offense. For example, a car used during the shooting into an occupied dwelling can be forfeited under the statute. Often the State has seized property owned by individuals or entities who were not even charged with a crime. The State does not need to file criminal charges in order to institute forfeiture proceedings. It is important to note that forfeiture proceedings are civil proceedings where the only matter in jeopardy is money.

How can an attorney help someone whose property is the subject of a Forfeiture action? An experienced attorney like Brad Sherman is familiar with the nuances of Florida’s forfeiture laws, therefore he can insure the State will not be allowed to take any shortcuts in the forfeiture proceedings. The State must prove the subject property is contraband, was obtained with the proceeds of crime, or is an instrumentality of a crime. Mr. Sherman can also challenge the application of the statute. Because people subject to forfeitures are afforded constitutional protections, the law is strictly construed whenever there is a question as to their meaning or application. If your home is at risk of forfeiture, there are additional protections under Article X, Section 4 of the Florida Constitution protecting homesteads.

The determination of whether property is subject to forfeiture can turn on one fact. Cases with similarly situated defendants often have different results. An experienced civil forfeiture attorney can make the difference between losing your property and keeping it. Bradley Sherman has defended many civil forfeiture cases in Florida for both owners and lien holders.

The Government must prove by clear and convincing evidence that the seized property was used in the commission of a crime. Owners of property used in the commission of a crime can recover their property proving that they neither knew, nor should have known after a reasonable inquiry, that the property was being used or was likely to be used to commit an enumerated crime. Id. Sec. 932.703(2).

Sureties, Guarantors and Lienholders who establish their perfected interests also may raise a defense only after seizure, and they bear the same burden as property owners plus an additional burden of proving that they did not consent to having the property used to commit a crime.