Section 973.076. Forfeiture proceedings.

 

(1)   Civil forfeitures.

(a) Type of action; where brought. In an action brought to cause the forfeiture of any property specified in s. 342.30 (4) (a) or s. 973.075 (1) , the court may render a judgment in rem or against a party personally, or both. The circuit court for the county in which the property was seized shall have jurisdiction over any proceedings regarding the property when the action is commenced in state court. Any property seized may be the subject of a federal forfeiture action.

(b) Commencement.

1. The district attorney of the county within which the property was seized or in which the defendant is convicted shall commence the forfeiture action within 30 days after the seizure of the property or the date of conviction, whichever is earlier, except that the defendant may request that the forfeiture proceedings be adjourned until after adjudication of any charge concerning a crime which was the basis for the seizure of the property. The request shall be granted. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the clerk of circuit court, provided service of authenticated copies of those papers is made in accordance with ch. 801 within 90 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property.

2. Upon service of an answer, the action shall be set for hearing within 60 days of the service of the answer but may be continued for cause or upon stipulation of the parties.

3. In counties having a population of 500,000 or more, the district attorney or the corporation counsel may proceed under subd. 1.

4. If no answer is served or no issue of law or fact has been joined and the time for that service or joining issue has expired, or if any defendant fails to appear at trial after answering or joining issue, the court may render a default judgment as provided in s. 806.02 .

(2m)   Criminal forfeitures.

(a) In addition to any penalties under this chapter, the court shall, with due provision for the rights of innocent persons, order forfeiture of any property specified in s. 973.075 (1) in accordance with pars. (b) , (c) , and (d) .

(b) A criminal complaint must allege the extent of property subject to forfeiture under this subsection. At trial, the court or the jury shall return a special verdict determining the extent of property, if any, that is subject to forfeiture under this subsection. When a special verdict contains a finding of property subject to a forfeiture under this subsection, a judgment of criminal forfeiture shall be entered along with the judgment of conviction under s. 972.13 .

(c) An injured person has a right or claim to forfeited property or the proceeds derived from forfeited property under this subsection that is superior to any right or claim the state has in the property or proceeds. This paragraph does not grant the injured person priority over state claims or rights by reason of a tax lien or other basis not covered by this section or by s. 973.075 or 973.077 . All rights, titles, and interest in property specified in s. 973.075 (1) vest in the state upon the commission of the act giving rise to forfeiture under this subsection.

(d) An injured or innocent person may petition the court for relief from the judgment of criminal forfeiture entered under par. (b) within 30 days after it is entered. The person filing the petition has the burden of satisfying or convincing to a reasonable certainty by the greater weight of the evidence that the person has a bona fide perfected security interest in the property subject to forfeiture in s. 973.075 (1) or any other property subject to forfeiture in sub. (4) . The court may order that a person with a bona fide perfected security interest be paid from the proceeds of the forfeiture or any other equitable relief necessary so as to do substantial justice to the person.

(3)   Burden of proof. The state shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the property is subject to forfeiture under s. 973.075 to 973.077 .

(4)   Action against other property of the person. The court may order the forfeiture of any other property of a defendant up to the value of property found by the court to be subject to forfeiture under s. 973.075 if the property subject to forfeiture meets any of the following conditions:

(a) Cannot be located.

(b) Has been transferred or conveyed to, sold to or deposited with a 3rd party.

(c) Is beyond the jurisdiction of the court.

(d) Has been substantially diminished in value while not in the actual physical custody of the law enforcement agency.

(e) Has been commingled with other property that cannot be divided without difficulty.

1981 c. 267 ; Sup. Ct. Order, 120 Wis. 2d xiii (1984); 1985 a. 245 ; 1989 a. 121 ; 1993 a. 92 , 321 , 491 ; 1997 a. 187 ; 2013 a. 362 . Judicial Council Note, 1984: Sub. (2) (a) has been amended by allowing 60 days after the action is commenced for service of the summons, complaint and affidavit on the defendants. The prior statute, requiring service within 30 days after seizure of the property, was an exception to the general rule of s. 801.02 (2), stats. [Re Order effective Jan. 1, 1985] Section 801.15 (2) governs extensions of time after the time for setting a hearing has expired. State v. Elliot, 203 Wis. 2d 95 , 551 N.W.2d 850 (Ct. App. 1996), 96-0012 . Under sub. (2) (a), 2001 stats., "adjudication" occurs at the moment of a finding of guilt or innocence by a circuit court and does not embrace an appeal of a conviction. Sub. (2) (a), 2001 stats., does not contemplate adjournment of forfeiture proceedings pending an appeal of the underlying criminal conviction. State v. One 1997 Ford F-150, 2003 WI App 128 , 265 Wis. 2d 264 , 665 N.W.2d 411 , 02-2685 .