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...
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2374, 1989 Fla. App. LEXIS 5578, 1989 WL 118952
...ved. Based on stipulations of fact made by the parties, *1131 the trial judge further found the boat owner lacked the statutorily required fraudulent intent in registering the boat necessary to warrant forfeiture. In this appeal, the DNR argues that section 328.05(3)(c) does not require a showing of a collateral crime as a prerequisite to forfeiture. The department contends that all that is required is proof of title fraud. We agree that section 328.05(3)(c) does not require proof of a collateral crime in order to mandate forfeiture. Nothing in its wording indicates such intent. 1 We reject appellee’s claim to the contrary. Proof of an intentional failure to truthfully register title is necessary under the statute, however. This is because section 328.05(3)(c) must be construed in pari materia with the general forfeiture statute, sections 932.-701-932.704, Florida Statutes (1987), under which an “innocent” mistake in registering a vessel is not grounds for forfeiture....
...Neither can this episode be termed an innocent mistake simply because after allowing the title to be incorrectly recorded for some months, upon the vessel’s seizure, Gonzalez quickly reincorporated his company. 2 *1132 In sum, to hold that these intentionally false statements in registering the boat did not contravene section 328.05(3)(c) and its forfeiture requirement would be in direct disregard of the clear intent of the law....
...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 bill of sale or sworn statement of ownership or otherwise commit a fraud in any application. § 328.05(3)(c), Fla.Stat....
