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Inexperienced is therefore entitled to the refund of fines and surfines totaling $5,000. e. Forfeiture. Eco-friendly also seeks a refund of $one,411.63, the amount of cash seized from her residence in the execution with the research warrant and ordered forfeited at her plea hearing. Despite the fact that forfeiture wasn't at difficulty in Nelson and wasn't talked about in the belief, Green promises that she's entitled to your refund of the forfeited cash underneath the thanks approach concepts recognized in Nelson. We conclude that Environmentally friendly will not be entitled to return with the forfeited funds due to the fact forfeiture, even exactly where purchased in a plea hearing, "is outdoors the scope with the prison matter and constitutes a civil proceeding." Commonwealth v. Brown, 426 Mass. 475, 480 (1998). The forfeiture of assets is authorized by G. L. c. 94C, § 47, which sets forth two solutions by which forfeiture proceedings can be initiated by the Commonwealth: either by petition in the nature of a continuing in rem filed from the Top-quality Courtroom underneath § 47 (d), or by movement filed in a very connected prison proceeding beneath § 47 (b). See Brown, supra. Despite which type of continuing is chosen from the Commonwealth, the burden of evidence remains the same: "the [C]ommonwealth shall have the load Webpage 791
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an affidavit in the shape of a sworn or attested assertion, letter, or application. This confirmed motion or accompanying affidavit must Plainly state (1) that the defendant's conviction is now not legitimate and isn't subject to retrial; (two) that the asked for refund is made of fines, service fees, charges, or restitution assessed exclusively because of the invalidated conviction; (3) the level of the requested refund; and (4) the defendant has paid out the asked for volume. [Notice 13] The sworn or attested application by yourself is sufficient jos 77 to satisfy the defendant's load of output. But, if at all possible, the defendant should establish any docket entries reflecting her or his payment of monies, and nutritional supplement his or her software with any other current evidence (e.g., receipts or payment documents) which the defendant moderately can Find that usually guidance the refund assert. After the defendant has satisfied his / her load of generation, the burden of evidence shifts into the Commonwealth. At this stage, the Commonwealth may perhaps rebut the defendant's statements by creating evidence which the defendant isn't entitled to some refund or is entitled to a refund in an volume that differs from what he / she requested.
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Id. Regarding the main Consider the balancing exam, the Court docket mentioned that there was an "obvious fascination" in a very refund of money paid out like a consequence of convictions that were now not legitimate. Id. An overturned conviction restores the presumption of innocence, the Court docket claimed, erasing any State declare to money compensated in the form of expenditures, fees, or restitution. Id. at 1255-fifty six. Concerning the 2nd aspect, the Court declared the act's need that defendants demonstrate their innocence by obvious and convincing evidence made a danger of erroneous deprivation on the defendants' desire in the refund in their funds. Id. at 1256. When the presumption of innocence is restored, "defendants really should not be saddled with any evidence load." Id. As on the 3rd issue, the Court docket mentioned that Colorado had "zero assert of ideal" to income paid out solely like a consequence of subsequently invalidated convictions. Id. at 1257. Underneath the Courtroom's holding in Nelson, id. at 1252, the Condition is obligated underneath the owing procedure clause of your Fourteenth Modification to refund monies where a few aspects are satisfied: (one) the monies have been "exacted in the defendant" on conviction and as a consequence with the conviction; (2) the amounts "exacted" were being essentially compensated by the defendant; and (three) the conviction has Web site 785
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