Rojas v. State , 226 Ga. App. 688 ( 1997 )

487 S.E.2d 455 (1997) 226 Ga. App. 688

ROJAS
v.
The STATE.

No. A97A0694.

Court of Appeals of Georgia.

June 4, 1997.

Stephen T. Maples. Kathy S. Yang, Decatur, for appellant.

J. Tom Morgan, District Attorney, Anne Long, Carol M. Kayser, Stephen D. Sencer, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

Rojas was indicted on three counts of selling cocaine, OCGA § 16-13-30(b), and one count of possessing cocaine and having it under his control, OCGA § 16-13-30(a). This direct appeal is from the court's denial of his plea of former jeopardy. See Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982).

At the time of arrest and afterwards, the State seized a variety of personal property and filed a complaint to forfeit that property under OCGA § 16-13-49(o). Both Rojas and Universe Wrecker Service, Inc., on whose premises the drug sales took place, filed answers as claimants to the property. The court ruled the answers defective and granted the State's motion for judgment of forfeiture. Rojas' motion to dismiss the criminal prosecution against him was denied.

Rojas contends the criminal prosecution following the civil forfeiture subjected him to multiple punishment for the same offense contrary to the protection against double jeopardy afforded by the state and federal constitutions. He cites the state constitutional provision that "[n]o person shall be put in jeopardy of life or liberty more than once for the same offense ...," Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII, but makes no independent argument concerning the state provision and the court below ruled only on the federal grounds. Our analysis is therefore confined to the protection found in the Fifth Amendment to the United States Constitution. See Thomas v. State, 203 Ga. App. 529, 530-531(1), 417 S.E.2d 353 (1992).

Forfeiture under OCGA § 16-13-49 does not constitute criminal punishment in that context. "It is plain that a forfeiture proceeding under OCGA § 16-13-49 is intended to be a civil action. [Cits.] ... The forfeiture proceeding under the statute is legitimately a civil action and does not constitute punishment for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution." Murphy v. State, 267 Ga. 120, 121, 475 S.E.2d 907 (1996). See also Battista v. State, 223 Ga.App. 369, 370(1), 477 S.E.2d 665 (1996).

Rojas argues the forfeiture proceeding nonetheless constituted a criminal punishment because it was in personam rather than in rem. In support of this argument he cites United States v. Ursery, 518 U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). First, Ursery was decided in the context of the federal forfeiture statute, not the Georgia statute construed in Murphy, supra. Under our statute the forfeiture is not considered a criminal punishment. This applies to in personam proceedings as the Code subsection providing for such, OCGA § 16-13-49(p), was specifically cited by Murphy. Murphy, supra at 121, 475 S.E.2d 907.

Second, while Ursery, 516 U.S. at ___, 116 S.Ct. at 2142-2147, 135 L.Ed.2d at 562-568 recognizes that in personam forfeitures can constitute criminal punishment, the proceeding here was clearly in rem. The complaint specifically names the property as defendants and there is nothing in it or the order granting forfeiture that suggests Rojas would have any personal liability as a result of the forfeiture. See Williamson v. Williamson, 247 Ga. 260, 262(2), 275 S.E.2d 42 (1981); Farley v. State, 180 Ga.App. 694, 695(1), 350 S.E.2d 263 (1986). "[A]ny ``punishment' in a forfeiture proceeding is against the property, not the owner as a criminal defendant.... [It] in no way equates to a criminal prosecution or to punishment for a criminal offense by the defendant or owner of the property forfeited, and the fact that the defendant feels he is being punished by a civil forfeiture does not render the civil forfeiture a proceeding putting him in jeopardy." Murphy v. State, 219 Ga.App. 474, 475, 465 S.E.2d 497 (1995), aff'd, 267 Ga. 120, 475 S.E.2d 907 (1996). Rojas has not been subjected to multiple punishments for the same offense. The court correctly denied his motion to dismiss the indictment on the ground of former jeopardy.

Judgment affirmed.

McMURRAY, P.J., and HAROLD R. BANKE, Senior Appellate Judge, concur.