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State v. Boyd8/23/2000
jury suffered by the Government." Id.
. In the simplest terms, the Bajakajian Court applied the proportionality test by considering these factors: the nature of the offense, the purpose for enacting the statute, the fine commonly imposed upon similarly situated offenders and the harm resulting from the defendant's conduct. These factors are strikingly similar, but yet not identical, to those in the Seraphine standard.
. We will now apply Bajakajian's proportionality test to the present case. Boyd's conduct does constitute a serious offense. With great fortune, the harm from his conduct was minimal; nevertheless, we do not overlook the recklessness and the potential for severe injuries that could have resulted from it. Even so, we are troubled by the disparity in this case between the forfeiture amount, $28,000, and the maximum fine for the crime, $10,000.
. The State suggests that when a case concerns a civil forfeiture, the amount of the monetary fine that could be imposed should not be considered. It argues:
With in rem vehicle forfeitures, however, it is the Defendant, and only the Defendant, who decides the value of the vehicle to be forfeited by choosing that vehicle to use in the commission of a felony.
Although we agree that an offender puts his or her property at risk by using it to commit a felony, many cases, in addition to Bajakajian, have emphasized that where the value of the forfeited property has greatly exceeded the underlying crime's potential fine, the forfeiture was excessive. See, e.g., United States v. 18755 N. Bay Rd., 13 F.3d 1493, 1498-99 (11th Cir. 1994) (holding that forfeiture of property valued at $150,000 was excessive where the maximum statutory fine was $20,000). Moreover, whether a forfeiture would be far in excess of the maximum fine is a factor appropriately considered under the Bajakajian test. See Bajakajian, 524 U.S. at 331-32. Even if a forfeiture is greater than the maximum fine, the forfeiture is not automatically deemed excessive. See id. at 331 n.11. Instead, this circumstance is a factor to be weighed against the others and will only be found to be excessive if the balancing reveals that the forfeiture is "grossly disproportionate to the gravity of the defendant's offense." Id. at 331.
. Although we acknowledge that Boyd's conduct was a serious offense, we nonetheless conclude that imposing the full forfeiture would be an excessive fine. The harm that Boyd caused was minimal and will be sufficiently satisfied from the reduced forfeiture amount of $10,000. As the State points out, Boyd's conduct was highly unusual "because not many people in Sheboygan County fire shots into police stations." The purpose of the forfeiture statute-to deter offenders from using their vehicles to commit a felony-is not significantly impacted as this is a situation not likely to recur. The full forfeiture amount is also significantly greater than the crime's maximum fine. Weighing all these factors, we hold that a full forfeiture would be grossly disproportionate to the gravity of the offense and affirm the circuit court's reduction of the forfeiture amount.
Cross-Appeal
. In his cross-appeal, Boyd asserts that the circuit court should have dismissed the forfeiture complaint against him because the State's proof of service was an affidavit utilizing hearsay information. He also initiates a claim that the affidavit cannot be based on a person's information and belief. The State counters that Boyd has waived these arguments by not specifically raising them before the court reached the merits of the case.
. Boyd claims that his argument is properly before the court because: (
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