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§ RULE 71.3 FORFEITURES PURSUANT TO 16 DEL.C., Sec. 4784

Codes > Delaware Superior Court Rules of Civil Procedure > VIII. Provisional > RULE 71.3

RULE 71.3 FORFEITURES PURSUANT TO 16 DEL.C., § 4784

(a) Notification of Seizure. Notification of seizure pursuant to 16 Del.C., § 4784(j) shall be made within 60 days of the date of seizure. In addition to the notification of seizure required by 16 Del.C., § 4784(j), should any known party having a possessory interest in the seized property be incarcerated, the State shall send notification of seizure by first class mail sent to the correctional facility in which said party is confined. In all such cases, the notification shall consist of:

(1) A description of the seized property,

(2) The person or persons seized from,

(3) The seizing agency,

(4) The time and place where the seizure took place, and,

(5) A statement that persons claiming an interest in said property may seek to have it returned pursuant to Superior Court Civil Rule 71.3(c) by filing a petition with the Superior Court in the County in which the property was seized no later than 45 days after the date of the notice, to establish: (1) that they have a lawful possessory interest in the seized property; and (2) the property was unlawfully seized or not subject to forfeiture under 16 Del.C., § 4784.

(b) Application for Forfeiture. At any time after the expiration of 45 days from the date of the last notice required by 16 Del.C., § 4784(j) and paragraph (a) of this Rule, the State may obtain an order from the Superior Court forfeiting property seized pursuant to 16 Del.C., § 4784 by filing, costs prepaid, an application in rem with the Superior Court sitting in the County in which the property was seized. Such application, which shall be under oath, shall set forth the following:

(1) A description of the property to be forfeited;

(2) The date of the seizure of such property;

(3) Proof of the mailing and publication of the notice required by 16 Del.C., § 4784(j) and an affidavit of mailing the notification required by paragraph (a) of this Rule; and

(4) A statement that no petition for the return of such property has been filed.

Applications for forfeiture may be consolidated under one application provided that each separate article can be identified.

(c) Petition for the Return of Property. An owner or interest holder may seek the return of property seized by the State pursuant to 16 Del.C., § 4784 by filing, costs prepaid, a civil petition, with the Superior Court sitting in the County in which the property was seized no later than 45 days after the date of the notice required by 16 Del.C., § 4784(j) measured from the date of mailing or the date of publication whichever shall be later. Such petition which must be signed by the owner or interest holder, under oath, and which must be served on the Attorney General, shall set forth the following:

(1) The name and address of the claimant;

(2) A description of the property sought to be returned;

(3) The nature and extent of the claimant's possessory interest in the property;

(4) The date, identity of the transferor, and circumstances of the claimant's acquisition of the interest in the property;

(5) The specific provisions of 16 Del.C., § 4784 relied on in asserting that it is not subject to forfeiture; and

(6) All essential facts supporting each assertion.

If the petition is not timely filed, the State may proceed as provided in paragraph (b) above.

(d) Trial.

(1) Except where a jury trial is demanded pursuant to Rule 38(b), unless otherwise ordered, no later than 90 days following the filing of the petition, the Court shall hold a non-jury trial at which the claimant shall have the burden of proving, by a preponderance of the evidence, a lawful possessory interest in the seized property and that the property was unlawfully seized or is not subject to forfeiture under 16 Del.C., § 4784.

(2) If the Court determines that the property is subject to forfeiture, it shall also determine whether any lawful lienholder who has filed a timely petition had knowledge, or reasonably should have had knowledge, of such intended unlawful use. If the Court shall find such knowledge, then the lienholder's rights, title and interest to the property shall likewise be deemed forfeited. If the Court does not find such knowledge and the property is otherwise subject to forfeiture, it shall be forfeited and the person into whose custody the property is given shall either pay the outstanding indebtedness secured by such lawful lien and keep the property or deliver the property to the said lienholder.

(3) If a trial by jury is demanded, the Case Scheduling Office shall set a trial date as may be available. At such a trial, the jury shall make those determinations required by the Court under subparagraphs (1) and (2) above, based upon a preponderance of the evidence.

(e) Ex Parte Orders. The Court may issue at the request of the State ex parte any preliminary order or process as is necessary to seize or secure the property for which forfeiture is sought. Process for seizure of said property shall issue only upon a showing of probable cause, and the application therefore and the issuance, execution, and return thereof shall be subject to the provisions of 16 Del.C., § 4784.

(f) Effect of Conviction, Acquittal or Dismissal.

(1) A defendant convicted in any criminal proceeding is precluded from later denying the essential allegations of the criminal offense of which the defendant was convicted in any proceeding brought pursuant to this Rule, regardless of the pendency of an appeal from that conviction.

(2) An acquittal or dismissal in a criminal proceeding does not preclude civil proceedings under this Rule.

(g) Interests of Third Parties. If the property is declared forfeited in accordance with subdivisions (b) or (d) of this Rule, the Court shall require public notice of the forfeiture for a period of not less than thirty (30) days, with direct notice to such parties as the Court deems appropriate. Any person, other than those who received notification of seizure pursuant to paragraph (a) of this Rule, who claims an interest in said property may appear and assert such interest in a manner and within such time as the Court may direct in said notice. If the Court is satisfied that said party has asserted a legitimate interest in said property and that said party had no knowledge or reasonably should not have had such knowledge of the intended unlawful use to which the property had been put, the Court shall protect said interest in any final disposition of the property on such terms and conditions as the Court deems just.