CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2000 WL 1251309
...David Nick (California), for appellee. Before LEVY, and GODERICH, JJ., and NESBITT, Senior Judge. GODERICH, Judge. The claimant, Allan Zabielinski, pled guilty to applying for title to a vessel using a false and fictitious name and a false and fictitious address in violation of section 328.05(3)(c), Florida Statutes (1995)....
...[1] *519 Thereafter, the Department of Environmental Protection [DEP] brought a civil in rem forfeiture action seeking the forfeiture of the claimant's $60,000 vessel pursuant to section
932.701, Florida Statutes (1995), "The Florida Contraband Forfeiture Act," and section
328.05(3)(c), Florida Statutes (1995)....
...the fine of forfeiture was grossly disproportionate to the gravity of the offense, title fraud. The DEP's appeal followed. The issue presented in this appeal is whether the forfeiture of the vessel, valued at approximately $60,000, for violation of section 328.05(3)(c), Florida Statutes (1995), would violate the Excessive Fines Clause of the Eighth Amendment to the United States Constitution....
...2801); see also, In re 1990 Chevrolet Blazer,
684 So.2d 197 (Fla. 2d DCA 1996)(applying the Excessive Fines Clause to civil forfeiture under the Florida Contraband Forfeiture Act), review denied,
695 So.2d 699 (Fla.1997). *520 The DEP argues on appeal, as it did below, that section
328.05(3)(c) is wholly remedial in nature because the purpose is to assure that vessel registration records in the State of Florida are complete and accurate, and therefore, the Excessive Fines Clause is not implicated. Although the legislative history provides little guidance as to the legislature's intent, after reviewing section
328.05(3), we find that it is partly punitive in nature. First, section
328.05(3)(c) provides that the forfeiture is pursuant to sections
932.701-932.704, Florida Statutes (1995), the "Florida Contraband Forfeiture Act." Therefore, section
328.05(3)(c) must be construed in pari materia with sections
932.701-932.704....
...There is no doubt that the State of Florida can accomplish its goal by temporarily seizing the vessel until the owner can establish that the vessel has been properly registered. Thus, this leads us to the conclusion that the forfeiture provision of section 328.05(3)(c) was enacted to either deter title fraud or to punish the vessel owner for the title fraud. As such, we find that section 328.05(3)(c) is not wholly remedial, but rather partly punitive and partly remedial in nature....
...2028,
141 L.Ed.2d 314 (1998), the Supreme Court held that a fine is considered excessive "if it is grossly disproportional to the gravity of a defendant's offense." In the instant case, the fine involved is the forfeiture of a $60,000 vessel for violating section
328.05(3)(c). Violating section
328.05(3)(c) is a third degree felony, punishable by a term of imprisonment not exceeding five years, §
775.082(3)(d), Fla....
...Moreover, the vessel is valued $60,000 which is more than eleven times the amount of the fine that could have been imposed. Under the circumstances of this case, we find that the fine is excessive. The trial court's order granting the claimant's motion for summary judgment is Affirmed. NOTES [1] Section 328.05(3)(c) provides in part: (3) It is unlawful: (c) To use a false or fictitious name, give a false or fictitious address, or make any false statement in any application or affidavit required under the provisions of this chapter or in a bi...
