2006 Ohio Revised Code - 2933.73. Civil hearing; forfeiture order; petition by innocent person claiming interest in property.

§ 2933.73. Civil hearing; forfeiture order; petition by innocent person claiming interest in property.
 

(A)  In addition to any other penalty or disposition authorized or required by law, if a person is convicted of or pleads guilty to any medicaid fraud offense, the trial court shall conduct a civil forfeiture hearing to determine whether any property identified in division (B) of this section should be forfeited to the state in relation to the offense. At the hearing, the offender who was convicted of or pleaded guilty to the medicaid fraud offense has the burden of proving, by a preponderance of the evidence, that the property in question is not forfeitable property in relation to the offense. If the offender does not prove by a preponderance of the evidence that the property in question is not forfeitable property in relation to the offense, the court shall issue an order specifying that the forfeitable property is forfeited to the state. If the offender proves by a preponderance of the evidence that the property in question is not forfeitable property in relation to the offense, the court shall not issue an order specifying that the forfeitable property is forfeited to the state and, if the property has been seized, shall order that it be returned to the offender. 

(B)  A court shall not issue an order under division (A) of this section specifying that forfeitable property is forfeited to the state unless one of the following applies: 

(1) The indictment, count in the indictment, or information charging the medicaid fraud offense specifically identified the property as forfeitable property; 

(2) The property was not reasonably foreseen to be forfeitable property at the time of the indictment, count in the indictment, or information charging the offense, provided that the prosecuting attorney or attorney general who prosecuted the offense gave prompt notice to the defendant of such property not reasonably foreseen to be forfeitable property when it is discovered to be forfeitable property. 

(C)  If any forfeitable property included in a forfeiture order issued under division (A) of this section cannot be located, has been sold to a bona fide purchaser for value, placed beyond the jurisdiction of the court, substantially diminished in value by the conduct of the defendant, or commingled with other property that cannot be divided without difficulty or undue injury to innocent persons, or otherwise is unreachable without undue injury to innocent persons, the court shall order forfeiture of any other reachable property of the defendant up to the value of the property that is unreachable. 

(D)  All property ordered forfeited pursuant to this section shall be held by the law enforcement agency that seized it for distribution or disposal pursuant to section 2933.74 of the Revised Code. The agency shall maintain an accurate record of each item of property so seized and held, which record shall include the date on which each item was seized, the manner and date of disposition by the agency, and if applicable, the name of the person who received the item; however, the record shall not identify or enable the identification of the individual officer who seized the property. The record is a public record open for inspection under section 149.43 of the Revised Code. Each law enforcement agency that seizes and holds in any calendar year any item of property that is ordered forfeited pursuant to this section shall prepare a report covering the calendar year that cumulates all of the information contained in all of the records kept by the agency 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 such report so received by the attorney general is a public record open for inspection under section 149.43 of the Revised Code. The attorney general shall make copies of each such report so received, and, no later than the fifteenth day of April in the calendar year in which the reports were received, shall send a copy of each such report to the office of the president of the senate and the office of the speaker of the house of representatives. 

(E)  Notwithstanding the notice and procedure prescribed by division (F) of this section, an order of forfeiture entered under division (A) of this section shall authorize an appropriate law enforcement agency to seize the forfeitable property declared forfeited under this section upon the terms and conditions, relating to the time and manner of seizure, that the court determines proper. 

(F) (1)  Upon the entry of a forfeiture order under division (A) of this section, the court shall cause notice of the issuance of the order to be sent by certified mail, return receipt requested, to all persons known to have, or appearing to have, an interest in the property that was acquired prior to the filing of a medicaid fraud lien notice as authorized by section 2933.75 of the Revised Code. If the notices cannot be given to those persons in that manner, the court shall cause publication of the notice of the forfeiture order pursuant to the Rules of Civil Procedure. 

(2) Within thirty days after receipt of a notice or after the date of publication of a notice under division (F)(1) of this section, any person, other than the offender who was convicted of or pleaded guilty to the medicaid fraud offense, who claims an interest in the forfeitable property that is subject to forfeiture may petition the court for a hearing to determine the validity of the claim. The petition shall be signed and sworn to by the petitioner and shall set forth the nature and extent of the petitioner's interest in the property, the date and circumstances of the petitioner's acquisition of the interest, any additional allegations supporting the claim, and the relief sought. The petitioner shall furnish a copy of the petition to the prosecuting attorney or attorney general who prosecuted the offense in relation to which the forfeiture order was issued. 

(3) The court, to the extent practicable and consistent with the interests of justice, shall hold the hearing described under division (F)(2) of this section within thirty days from the filing of the petition. The court may consolidate the hearings on all petitions filed by third party claimants under this section. At the hearing, the petitioner may testify and present evidence on his own behalf and cross-examine witnesses. The prosecuting attorney or attorney general who prosecuted the offense may present evidence and witnesses in rebuttal and in defense of the claim of the state to the property and cross-examine witnesses. The court, in making its determination, shall consider the testimony and evidence presented at the hearing and the relevant portions of the record of the criminal proceeding that resulted in the forfeiture order. 

(4) If at a hearing held under division (F)(3) of this section, the court, by a preponderance of the evidence, determines either that the petitioner has a legal right, title, or interest in the property that, at the time of the commission of the acts giving rise to the forfeiture of the property, was vested in the petitioner and not in the offender or was superior to the right, title, or interest of the offender, or that the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of the purchase reasonably without cause to believe that the property was subject to forfeiture under this section, it shall amend, in accordance with its determination, the order of forfeiture to protect the rights of innocent persons. 

(G)  Except as provided in division (F) of this section, no person claiming an interest in forfeitable property that is subject to forfeiture under this section shall do either of the following: 

(1) Intervene in a trial or appeal of a criminal case that involves the forfeiture of the property; 

(2) File an action against the state concerning the validity of his alleged interest in the property subsequent to the filing of the indictment, count in the indictment, or information, that alleges that the property is subject to forfeiture under this section. 

(H)  As used in this section, "law enforcement agency" includes the state board of pharmacy. 
 

HISTORY: 145 v H 152 (Eff 7-1-93); 145 v H 715. Eff 7-22-94.