Opinion
No. 85-2059.
September 17, 1986. Rehearing Denied October 22, 1986.
Appeal from the Circuit Court for Broward County; W. Herbert Moriarty, Judge.
Ray Sandstrom of Sandstrom Haddad, Fort Lauderdale, for appellant Starla Rose.
Michael A. Palecki, Tallahassee, for appellees Bill Gunter, Ins. Com'r and Robert E. McKenna, Director, Div. of Ins. Fraud.
We affirm the judgment of forfeiture, which provided:
THIS CAUSE came on for trial on July 22, 1985, upon an Amended Petition for Rule to Show Cause, previously found by the Court to have stated a cause of action for forfeiture under Sections 932.701 — 932.704, Florida Statutes, and all parties having been present and represented by counsel at trial and the Court having heard and considered argument of all parties and the testimony of witnesses and the memorandum briefs filed subsequent to trial, and being fully advised finds as follows:
1. The petitioners have shown probable cause that the res subject to forfeiture was employed as an instrumentality in the commission of, or in aiding or abetting in the commission of a felony.
2. The respondent has not produced sufficient credible evidence to rebut the petitioner's showing.
3. The petitioner's evidence when fairly considered produces the stronger impression, has the greater weight, and is more credible and convincing as to its truth when weighed against the evidence in opposition thereto.
4. The petitioners have established by a preponderance of the evidence that the forfeiture statute was violated.
Accordingly, it is
ORDERED that one 1971 Mercedes Benz, VIN 11304410012261, is hereby forfeited to the use of or sale by the State Insurance Commissioner and State Division of Insurance Fraud in accordance with Sections 932.701 — 932.704, Florida Statutes.
GLICKSTEIN and STONE, JJ., concur.
ANSTEAD, J., dissents in part with opinion.
I concur in the majority's resolution of all the issues except that I do not believe the evidence was sufficient to support the appellee's claim that the appellant arranged for her car to be stolen so that she could file a fraudulent insurance claim. While the evidence, which established that appellant falsely claimed her car was stolen at a time after it had already been recovered by the police, may have proved that appellant was lying about the time the car was stolen and that "something was rotten in Denmark," it did not prove her involvement in a scheme to defraud.