2006 Ohio Revised Code - 2923.35. Disposition of forfeited property, fine or civil penalty.

§ 2923.35. Disposition of forfeited property, fine or civil penalty.
 

(A) (1)  With respect to property ordered forfeited under section 2923.32 of the Revised Code, with respect to any fine or civil penalty imposed in any criminal or civil proceeding under section 2923.32 or 2923.34 of the Revised Code, and with respect to any fine imposed for a violation of section 2923.01 of the Revised Code for conspiracy to violate section 2923.32 of the Revised Code, the court, upon petition of the prosecuting attorney, may do any of the following: 

(a) Authorize the prosecuting attorney to settle claims; 

(b) Award compensation to persons who provide information that results in a forfeiture, fine, or civil penalty under section 2923.32 or 2923.34 of the Revised Code; 

(c) Grant petitions for mitigation or remission of forfeiture, fines, or civil penalties, or restore forfeited property, imposed fines, or imposed civil penalties to persons injured by the violation; 

(d) Take any other action to protect the rights of innocent persons that is in the interest of justice and that is consistent with the purposes of sections 2923.31 to 2923.36 of the Revised Code. 

(2) The court shall maintain an accurate record of the actions it takes under division (A)(1) of this section with respect to the property ordered forfeited or the fine or civil penalty. The record is a public record open for inspection under section 149.43 of the Revised Code. 

(B) (1)  After the application of division (A) of this section, any person who prevails in a civil action pursuant to section 2923.34 of the Revised Code has a right to any property, or the proceeds of any property, criminally forfeited to the state pursuant to section 2923.32 of the Revised Code or against which any fine under that section or civil penalty under division (I) of section 2923.34 of the Revised Code may be imposed. 

The right of any person who prevails in a civil action pursuant to section 2923.34 of the Revised Code, other than a prosecuting attorney performing official duties under that section, to forfeited property, property against which fines and civil penalties may be imposed, and the proceeds of that property is superior to any right of the state, a municipal corporation, or a county to the property or the proceeds of the property, if the civil action is brought within one hundred eighty days after the entry of a sentence of forfeiture or a fine pursuant to section 2923.32 of the Revised Code or the entry of a civil penalty pursuant to division (I) of section 2923.34 of the Revised Code. 

The right is limited to the total value of the treble damages, civil penalties, attorney's fees, and costs awarded to the prevailing party in an action pursuant to section 2923.34 of the Revised Code, less any restitution received by the person. 

(2) If the aggregate amount of claims of persons who have prevailed in a civil action pursuant to section 2923.34 of the Revised Code against any one defendant is greater than the total value of the treble fines, civil penalties, and forfeited property paid by the person against whom the actions were brought, all of the persons who brought their actions within one hundred eighty days after the entry of a sentence or disposition of forfeiture or a fine pursuant to section 2923.32 of the Revised Code or the entry of a civil penalty pursuant to division (I) of section 2923.34 of the Revised Code, first shall receive a pro rata share of the total amount of the fines, civil penalties, and forfeited property. After the persons who brought their actions within the specified one-hundred-eighty-day period have satisfied their claims out of the fines, civil penalties, and forfeited property, all other persons who prevailed in civil actions pursuant to section 2923.34 of the Revised Code shall receive a pro rata share of the total amount of the fines, civil penalties, and forfeited property that remains in the custody of the law enforcement agency or in the corrupt activity investigation and prosecution fund. 

(C) (1)  Subject to divisions (A) and (B) of this section and notwithstanding any contrary provision of section 2933.41 of the Revised Code, the prosecuting attorney shall order the disposal of property ordered forfeited in any proceeding under sections 2923.32 and 2923.34 of the Revised Code as soon as feasible, making due provisions for the rights of innocent persons, by any of the following methods: 

(a) Transfer to any person who prevails in a civil action pursuant to section 2923.34 of the Revised Code, subject to the limit set forth in division (B)(1) of this section; 

(b) Public sale; 

(c) Transfer to a state governmental agency for official use; 

(d) Sale or transfer to an innocent person; 

(e) If the property is contraband and is not needed for evidence in any pending criminal or civil proceeding, pursuant to section 2933.41 or any other applicable section of the Revised Code. 

(2) Any interest in personal or real property not disposed of pursuant to this division and not exercisable by, or transferable for value to, the state shall expire and shall not revert to the person found guilty of or adjudicated a delinquent child for a violation of section 2923.32 of the Revised Code. No person found guilty of or adjudicated a delinquent child for a violation of that section and no person acting in concert with a person found guilty of or adjudicated a delinquent child for a violation of that section is eligible to purchase forfeited property from the state. 

(3) Upon application of a person, other than the defendant, the adjudicated delinquent child, or a person acting in concert with or on behalf of either the defendant or the adjudicated delinquent child, the court may restrain or stay the disposal of the property pursuant to this division pending the conclusion of any appeal of the criminal case or delinquency case giving rise to the forfeiture or pending the determination of the validity of a claim to or interest in the property pursuant to division (E) of section 2923.32 of the Revised Code, if the applicant demonstrates that proceeding with the disposal of the property will result in irreparable injury, harm, or loss to the applicant. 

(4) The prosecuting attorney shall maintain an accurate record of each item of property disposed of pursuant to this division, which record shall include the date on which each item came into the prosecuting attorney's custody, the manner and date of disposition, and, if applicable, the name of the person who received the item. The record shall not identify or enable the identification of the individual officer who seized the property, and the record is a public record open for inspection under section 149.43 of the Revised Code. 

Each prosecuting attorney who disposes in any calendar year of any item of property pursuant to this division shall prepare a report covering the calendar year that cumulates all of the information contained in all of the records kept by the prosecuting attorney pursuant to this division for that calendar year and shall send the cumulative report, no later than the first day of March in the calendar year following the calendar year covered by the report, to the attorney general. Each report received by the attorney general is a public record open for inspection under section 149.43 of the Revised Code. Not later than the fifteenth day of April in the calendar year following the calendar year covered by the reports, the attorney general shall send to the president of the senate and the speaker of the house of representatives a written notification that does all of the following: 

(a) Indicates that the attorney general has received from prosecuting attorneys reports of the type described in this division that cover the previous calendar year and indicates that the reports were received under this division; 

(b) Indicates that the reports are open for inspection under section 149.43 of the Revised Code; 

(c) Indicates that the attorney general will provide a copy of any or all of the reports to the president of the senate or the speaker of the house of representatives upon request. 

(D) (1) (a)  Ten per cent of the proceeds of all property ordered forfeited by a juvenile court pursuant to section 2923.32 of the Revised Code shall be applied to one or more alcohol and drug addiction treatment programs that are certified by the department of alcohol and drug addiction services under section 3793.06 of the Revised Code and that are specified in the order of forfeiture. A juvenile court shall not specify an alcohol or drug addiction treatment program in the order of forfeiture unless the program is a certified alcohol and drug addiction treatment program and, except as provided in division (D)(1)(a) of this section, unless the program is located in the county in which the court that orders the forfeiture is located or in a contiguous county. If no certified alcohol and drug addiction treatment program is located in any of those counties, the juvenile court may specify in the order a certified alcohol and drug addiction treatment program located anywhere within this state. The remaining ninety per cent of the proceeds shall be disposed of as provided in divisions (D)(1)(b) and (D)(2) of this section. 

All of the proceeds of all property ordered forfeited by a court other than a juvenile court pursuant to section 2923.32 of the Revised Code shall be disposed of as provided in divisions (D)(1)(b) and (D)(2) of this section. 

(b) The remaining proceeds of all property ordered forfeited pursuant to section 2923.32 of the Revised Code, after compliance with division (D)(1)(a) of this section when that division is applicable, and all fines and civil penalties imposed pursuant to sections 2923.32 and 2923.34 of the Revised Code shall be deposited into the state treasury and credited to the corrupt activity investigation and prosecution fund, which is hereby created. 

(2) The proceeds, fines, and penalties credited to the corrupt activity investigation and prosecution fund pursuant to division (D)(1) of this section shall be disposed of in the following order: 

(a) To a civil plaintiff in an action brought within the one-hundred-eighty-day time period specified in division (B)(1) of this section, subject to the limit set forth in that division; 

(b) To the payment of the fees and costs of the forfeiture and sale, including expenses of seizure, maintenance, and custody of the property pending its disposition, advertising, and court costs; 

(c) Except as otherwise provided in division (D)(2)(c) of this section, the remainder shall be paid to the law enforcement trust fund of the prosecuting attorney that is established pursuant to division (D)(1)(c) of section 2933.43 of the Revised Code and to the law enforcement trust fund of the county sheriff that is established pursuant to that division if the county sheriff substantially conducted the investigation, to the law enforcement trust fund of a municipal corporation that is established pursuant to that division if its police department substantially conducted the investigation, to the law enforcement trust fund of a township that is established pursuant to that division if the investigation was substantially conducted by a township police department, township police district police force, or office of a township constable, or to the law enforcement trust fund of a park district created pursuant to section 511.18 or 1545.01 of the Revised Code that is established pursuant to that division if the investigation was substantially conducted by its park district police force or law enforcement department. The prosecuting attorney may decline to accept any of the remaining proceeds, fines, and penalties, and, if the prosecuting attorney so declines, they shall be applied to the fund described in division (D)(2)(c) of this section that relates to the appropriate law enforcement agency that substantially conducted the investigation.

If the state highway patrol substantially conducted the investigation, the director of budget and management shall transfer the remaining proceeds, fines, and penalties to the state highway patrol for deposit into the highway patrol state contraband, forfeiture, and other fund that is created by division (D)(1)(c) of section 2933.43 of the Revised Code. If the department of taxation substantially conducted the investigation, the director, shall transfer the remaining proceeds, fines, and penalties to the department for deposit into the department of taxation enforcement fund. If the state board of pharmacy substantially conducted the investigation, the director shall transfer the remaining proceeds, fines, and penalties to the board for deposit into the board of pharmacy drug law enforcement fund that is created by division (B)(1) of section 4729.65 of the Revised Code. If a state law enforcement agency, other than the state highway patrol, the department of taxation, or the state board of pharmacy, substantially conducted the investigation, the director shall transfer the remaining proceeds, fines, and penalties to the treasurer of state for deposit into the peace officer training commission fund. 

The remaining proceeds, fines, and penalties that are paid to a law enforcement trust fund or that are deposited into the highway patrol state contraband, forfeiture, and other fund, the department of taxation enforcement fund, the board of pharmacy drug law enforcement fund, or the peace officer training commission fund pursuant to division (D)(2)(c) of this section shall be allocated, used, and expended only in accordance with division (D)(1)(c) of section 2933.43 of the Revised Code, only in accordance with a written internal control policy adopted under division (D)(3) of that section, and, if applicable, only in accordance with division (B) of section 4729.65 of the Revised Code. The annual reports that pertain to the funds and that are required by divisions (D)(1)(c) and (3)(b) of section 2933.43 of the Revised Code also shall address the remaining proceeds, fines, and penalties that are paid or deposited into the funds pursuant to division (D)(2)(c) of this section. 

(3) If more than one law enforcement agency substantially conducted the investigation, the court ordering the forfeiture shall equitably divide the remaining proceeds, fines, and penalties among the law enforcement agencies that substantially conducted the investigation, in the manner described in division (D)(2) of section 2933.43 of the Revised Code for the equitable division of contraband proceeds and forfeited moneys. The equitable shares of the proceeds, fines, and penalties so determined by the court shall be paid or deposited into the appropriate funds specified in division (D)(2)(c) of this section. 

(E)  As used in this section, "law enforcement agency" includes, but is not limited to, the state board of pharmacy and the department of taxation. 
 

HISTORY: 141 v H 5 (Eff 1-1-86); 141 v S 74 (Eff 9-3-86); 143 v H 215 (Eff 4-11-90); 143 v H 261 (Eff 7-18-90); 143 v H 266 (Eff 9-6-90); 143 v S 258 (Eff 11-20-90); 144 v S 174 (Eff 7-31-92); 145 v H 152 (Eff 7-1-93); 146 v H 1 (Eff 1-1-96); 146 v H 670 (Eff 12-2-96); 147 v S 164. Eff 1-15-98; 150 v H 95, § 1, eff. 6-26-03; 151 v H 66, § 101.01, eff. 9-29-05.
 

The effective date is set by § 612.03 of 151 v H 66. 

The effective date is set by section 183 of H.B. 95 (150 v  - ). 

Not analogous to former RC § 2923.35 (99 v 253, §§ 1, 3; GC § 12906; Bureau of Code Revision, 10-1-53), repealed 134 v H 511, § 2, eff 1-1-74.

 

Effect of Amendments

151 v H 66, effective September 29, 2005, corrected internal references. 

H.B. 95, Acts 2003, effective June 26, 2003, in the second paragraph of (D)(2), inserted "If the department of taxation .. taxation enforcement fund" and "the department of taxation, or the state board of pharmacy" and deleted "that is created by division (D)(1)(c) of section 2933.43 of the Revised Code" following "peace officer training commission fund"; inserted "the department of taxation enforcement fund" in the final paragraph of (D)(2); and inserted "and the department of taxation" in (E).