MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary B

By: Representatives Blackmon, Smith (39th), Reynolds, Read, Wells-Smith, Smith (27th), Bailey, Perkins, Johnson, Moore, Franks, Fredericks

House Bill 631

(As Sent to Governor)

AN ACT TO AMEND SECTIONS 97-17-1 AND 97-17-3, MISSISSIPPI CODE OF 1972, TO REVISE PENALTIES FOR ARSON IN THE FIRST DEGREE; TO PROVIDE THAT THE BURNING OF A CHURCH, TEMPLE, SYNAGOGUE OR OTHER PLACE OF WORSHIP SHALL BE ARSON IN THE FIRST DEGREE; TO CREATE A NEW SECTION TO BE CODIFIED AS SECTION 97-17-4, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE FORFEITURE OF PROPERTY USED IN THE COMMISSION OF THE OFFENSE OF ARSON IN THE FIRST DEGREE; TO AMEND SECTION 97-17-33, MISSISSIPPI CODE OF 1972, TO PROVIDE ENHANCED PENALTIES FOR BURGLARY OF A CHURCH, SYNAGOGUE, TEMPLE OR OTHER ESTABLISHED PLACE OF WORSHIP; TO AMEND SECTIONS 97-17-41 AND 97-17-43, MISSISSIPPI CODE OF 1972, TO PROVIDE ENHANCED PENALTIES FOR LARCENY OF A CHURCH, SYNAGOGUE, TEMPLE OR OTHER ESTABLISHED PLACE OF WORSHIP; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 97-17-1, Mississippi Code of 1972, is amended as follows:

97-17-1. (1) Any person who willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, or any state-supported school building in this state whether the property of himself or of another, shall be guilty of arson in the first degree, and upon conviction thereof, be sentenced to the penitentiary for not less than five (5) nor more than twenty (20) years and shall pay restitution for any damage caused.

(2) Any person convicted under this section shall be subject to treble damages for any damage caused by such person.

(3) Any property used in the commission of the offense of arson in the first degree shall be subject to forfeiture as provided in Section 97-17-4.

SECTION 2. Section 97-17-3, Mississippi Code of 1972, is amended as follows:

97-17-3. (1) Any person who willfully and maliciously sets fire to, or burns, or causes to be burned, or who is a party to destruction by explosion from combustible material, who aids, counsels, or procures the burning or destruction of any church, temple, synagogue or other established place of worship, whether in use or vacant, shall be guilty of arson in the first degree and, upon conviction therefor, shall be sentenced to the penitentiary for not less than five (5) nor more than thirty (30) years and shall pay restitution for any damage caused.

(2) Any person observing or witnessing the destruction by fire of any state-supported school building or any church, temple, synagogue or other established place of worship, whether occupied or vacant, which fire was the result of his or her act of an accidental nature, and who willfully fails to sound the general alarm or report such fire to the local fire department or other local authorities, shall be guilty of a felony and, upon conviction therefor, shall be sentenced to the penitentiary for not less than two (2) nor more than ten (10) years and shall pay restitution for any damage caused.

(3) Any person, who by reason of his age comes under the jurisdiction of juvenile authorities and who is found guilty under subsection (1) of this section, shall not be eligible for probation unless and until at least six (6) months' confinement has been served in a state reform school.

(4) Any person convicted under this section shall be subject to treble damages for any damage caused by such person.

(5) Any property used in the commission of arson in the first degree shall be subject to forfeiture as provided in Section 97-17-4.

SECTION 3. The following shall be codified as Section 97-17-4, Mississippi Code of 1972:

97-17-4. (1) All property, real or personal, including money, used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of a provision of Section 97-17-1 or 97-17-3 is subject to civil forfeiture to the state pursuant to the provisions of this section; provided, however, that a forfeiture of personal property encumbered by a bona fide security interest or real property encumbered by a bona fide mortgage, deed of trust, lien or encumbrance of record shall be subject to the interest of the secured party or subject to the interest of the holder of the mortgage deed of trust, lien of encumbrance of record if such secured party or holder neither had knowledge of or consented to the act or omission.

(2) Property subject to forfeiture may be seized by law enforcement officers upon process issued by any appropriate court having jurisdiction over the property. Seizure without process may be made if:

(a) The seizure is incident to an arrest or a search under a search warrant or an inspection under a lawful administrative inspection;

(b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this section.

(3) When any property is seized pursuant to this section, proceedings under this section shall be instituted promptly.

(4) (a) A petition for forfeiture shall be filed promptly in the name of the State of Mississippi with the clerk of the circuit court of the county in which the seizure is made. A copy of such petition shall be served upon the following persons by service of process in the same manner as in civil cases:

(i) The owner of the property, if address is known;

(ii) Any secured party who has registered his lien or filed a financing statement as provided by law, if the identity of such secured party can be ascertained by the state by making a good faith effort to ascertain the identity of such secured party as described in paragraphs (b), (c), (d), (e) and (f) of this subsection;

(iii) Any other bona fide lienholder or secured party or other person holding an interest in the property in the nature of a security interest of whom the state has actual knowledge;

(iv) A holder of a mortgage, deed of trust, lien or encumbrance of record, if the property is real estate by making a good faith inquiry as described in paragraph (g) of this section; and

(v) Any person in possession of property subject to forfeiture at the time that it was seized.

(b) If the property is a motor vehicle susceptible of titling under the Mississippi Motor Vehicle Title Law and if there is any reasonable cause to believe that the vehicle has been titled, the state shall make inquiry of the State Tax Commission as to what the records of the State Tax Commission show as to who is the record owner of the vehicle and who, if anyone, holds any lien or security interest which affects the vehicle.

(c) If the property is a motor vehicle and is not titled in the State of Mississippi, then the state shall attempt to ascertain the name and address of the person in whose name the vehicle is licensed, and if the vehicle is licensed in a state which has in effect a certificate of title law, the state shall make inquiry of the appropriate agency of that state as to what the records of the agency show as to who is the record owner of the vehicle and who, if anyone, holds any lien, security interest, or other instrument in the nature of a security device which affects the vehicle.

(d) If the property is of a nature that a financing statement is required by the laws of this state to be filed to perfect a security interest affecting the property and if there is any reasonable cause to believe that a financing statement covering the security interest has been filed under the laws of this state, the state shall make inquiry of the appropriate office designated in Section 75-9-401 as to what the records show as to who is the record owner of the property and who, if anyone, has filed a financing statement affecting the property.

(e) If the property is an aircraft or part thereof and if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, then the state shall make inquiry of the administrator of the Federal Aviation Administration as to what the records of the administrator show as to who is the record owner of the property and who, if anyone, holds an instrument in the nature of a security device which affects the property.

(f) In the case of all other personal property subject to forfeiture, if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, then the state shall make a good faith inquiry to identify the holder of any such instrument.

(g) If the property is real estate, the state shall make inquiry at the appropriate places to determine who is the owner of record and who, if anyone is a holder of a bona fide mortgage, deed of trust, lien or encumbrance.

(h) In the event the answer to an inquiry states that the record owner of the property is any person other than the person who was in possession of it when it was seized, or states that any person holds any lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage or deed of trust which affects the property, the state shall cause any record owner and also any lienholder, secured party, other person who holds an interest in the property in the nature of a security interest, or holder of an encumbrance, mortgage or deed of trust which affects the property to be named in the petition of forfeiture and to be served with process in the same manner as in civil cases.

(i) If the owner of the property cannot be found and served with a copy of the petition of forfeiture, or if no person was in possession of the property subject to forfeiture at the time that it was seized and the owner of the property is unknown, the state shall file with the clerk of the court in which the proceeding is pending an affidavit to such effect, whereupon the clerk of the court shall publish notice of the hearing addressed to "the Unknown Owner of . . .", filling in the blank space with a reasonably detailed description of the property subject to forfeiture. Service by publication shall contain the other requisites prescribed in Section 11-33-41, and shall be served as provided in Section 11-33-37 for publication of notice for attachments at law.

(j) No proceedings instituted pursuant to the provisions of this article shall proceed to hearing unless the judge conducting the hearing is satisfied that this section has been complied with. Any answer received from an inquiry required by paragraphs (b) through (g) of this section shall be introduced into evidence at the hearing.

(5) (a) An owner of property that has been seized shall file a verified answer within twenty (20) days after the completion of service of process. If no answer is filed, the court shall hear evidence that the property is subject to forfeiture and forfeit the property to the state. If an answer is filed, a time for hearing on forfeiture shall be set within thirty (30) days of filing the answer or at the succeeding term of court if court would not be in progress within thirty (30) days after filing the answer. Provided, however, that upon request by the state or the owner of the property, the court may postpone said forfeiture hearing to a date past the time any criminal action is pending against said owner.

(b) If the owner of the property has filed a verified answer denying that the property is subject to forfeiture, then the burden is on the state to prove that the property is subject to forfeiture. The burden of proof placed upon the state shall be clear and convincing proof. However, if no answer has been filed by the owner of the property, the petition for forfeiture may be introduced into evidence and is prima facie evidence that the property is subject to forfeiture.

(c) At the hearing any claimant of any right, title, or interest in the property may prove his lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage or deed of trust to be bona fide and created without knowledge or consent that the property was to be used so as to cause the property to be subject to forfeiture.

(d) If it is found that the property is subject to forfeiture, then the judge shall forfeit the property to the state. However, if proof at the hearing discloses that the interest of any bona fide lienholder, secured party, other person holding an interest in the property in the nature of a security interest or any holder of a bona fide encumbrance, mortgage or deed of trust is greater than or equal to the present value of the property, the court shall order the property released to him. If such interest is less than the present value of the property and if the proof shows that the property is subject to forfeiture, the court shall order the property forfeited to the state.

(6) (a) All personal property, including money, which is forfeited to the state and is not capable of being sold at public auction shall be liquidated and the proceeds, after deduction of all storage and court costs, shall be forwarded to the State Treasurer and deposited in the General Fund of the state.

(b) All real estate which is forfeited to the state shall be sold to the highest bidder at a public auction to be conducted by the state at such place, on such notice and in accordance with the same procedure, as far as practicable, as is required in the case of sales of land under execution of law. The proceeds of such sale shall first be applied to the cost and expense in administering and conducting such sale, then to the satisfaction of all mortgages, deeds of trusts, liens and encumbrances of record on such property. All proceeds in excess of the amount necessary for the cost of the sale of such land and the satisfaction of any liens thereon shall be deposited in the General Fund of the State Treasury.

(c) All other property that has been seized by the state and that has been forfeited shall, except as otherwise provided, be sold at a public auction for cash by the state to the highest and best bidder after advertising the sale for at least once each week for three (3) consecutive weeks, the last notice to appear not more than ten (10) days nor less than five (5) days prior to such sale, in a newspaper having a general circulation throughout the State of Mississippi. Such notices shall contain a description of the property to be sold and a statement of the time and place of sale. It shall not be necessary to the validity of such sale either to have the property present at the place of sale or to have the name of the owner thereof stated in such notice. The proceeds of the sale shall be delivered to the circuit clerk and shall be disposed of as follows:

(i) To any bona fide lienholder, secured party, or other party holding an interest in the property in the nature of a security interest, to the extent of his interest; and

(ii) The balance, if any, after deduction of all storage and court costs, shall be forwarded to the State Treasurer and deposited with and used as general funds of the state.

(d) The State Tax Commission shall issue a certificate of title to any person who purchases property under the provisions of this section when a certificate of title is required under the laws of this state.

SECTION 4. Section 97-17-33, Mississippi Code of 1972, is amended as follows:

97-17-33. (1) Every person who shall be convicted of breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building or private room or office therein, water vessel, commercial or pleasure craft, ship, steamboat, flatboat, railroad car, automobile, truck or trailer in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony, or who shall be convicted of breaking and entering in the day or night time, any building within the curtilage of a dwelling house, not joined to, immediately connected with or forming a part thereof, shall be guilty of burglary, and imprisoned in the penitentiary not more than seven (7) years.

(2) Any person who shall be convicted of breaking and entering a church, synagogue, temple or other established place of worship with intent to commit some crime therein shall be punished by imprisonment in the penitentiary not more than fourteen (14) years.

SECTION 5. Section 97-17-41, Mississippi Code of 1972, is amended as follows:

97-17-41. (1) (a) Every person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the value of Two Hundred Fifty Dollars ($250.00) or more, shall be guilty of grand larceny, and shall be imprisoned in the penitentiary for a term not exceeding five (5) years; or shall be fined not more than One Thousand Dollars ($1,000.00), or both.

(b) Every person who shall be convicted of taking and carrying away, feloniously, the property of a church, synagogue, temple or other established place of worship, of the value of Two Hundred Fifty Dollars ($250.00) or more, shall be guilty of grand larceny, and shall be imprisoned in the penitentiary for a term not exceeding ten (10) years, or shall be fined not more than Two Thousand Dollars ($2,000.00), or both.

(2) Every person who shall be convicted for a second or subsequent offense of taking and carrying away, feloniously, a motor vehicle which is the personal property of another, of any value, shall be guilty of grand larceny, and shall be imprisoned in the penitentiary for a term not exceeding ten (10) years or shall be fined not more than Two Thousand Dollars ($2,000.00), or both.

(3) The court shall order any person convicted under this section who causes damage to any motor vehicle to pay restitution to the owner or owners of any such motor vehicle.

SECTION 6. Section 97-17-43, Mississippi Code of 1972, is amended as follows:

97-17-43. (1) If any person shall feloniously take, steal and carry away any personal property of another under the value of Two Hundred Fifty Dollars ($250.00), he shall be guilty of petit larceny and upon conviction, shall be punished by imprisonment in the county jail not exceeding six (6) months or by fine not exceeding One Thousand Dollars ($1,000.00), or both.

(2) If any person shall feloniously take, steal and carry away any property of a church, synagogue, temple or other established place of worship under the value of Two Hundred Fifty Dollars ($250.00), he shall be guilty of petit larceny and, upon conviction, shall be punished by imprisonment in the county jail not exceeding one (1) year or by fine not exceeding Two Thousand Dollars ($2,000.00), or both.

SECTION 7. This act shall take effect and be in force from and after its passage.