State v. McKinney

244 S.E.2d 455 (1978)

STATE of North Carolina
v.
Alfonzo McKINNEY.

No. 7718SC966.

Court of Appeals of North Carolina.

June 6, 1978.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles J. Murray, Raleigh, for the State.

Smith, Patterson, Follin, Curtis, James & Harkavy by Norman B. Smith, Greensboro, for defendant-appellant.

MITCHELL, Judge.

This appeal raises the single issue of the proper disposition of $6,950 seized pursuant to a search of a residence at 806-A Granite Street, Greensboro, North Carolina, and introduced in evidence at trial. The defendant contends that the judgment entered after his first trial was vacated in its entirety by our action in ordering a new trial. The defendant further contends that the trial court is now required to rule upon his motion concerning the disposition of this United States currency. These contentions have merit.

The judgment entered after the first trial of the defendant is composed of two parts. One is entitled "Judgment and Commitment." The other is entitled "Judgment and Other Disposition." Both were parts of the same judgment and were vacated by our action in ordering a new trial. Therefore, the trial court was not precluded from conducting a hearing to determine the proper disposition of the currency. Simpson v. Plyler, 258 N.C. 390, 398, 128 S.E.2d 843, 849 (1963).

Additionally, the original judgment of 1 July 1976, which ordered the $6,950 in United States currency confiscated and forfeited to the school fund, apparently was based solely upon the finding that the currency was found in "close proximity" to the controlled substance. The provisions of G.S. 90-112(a) set forth all of the items subject to forfeiture in cases arising under the North Carolina Controlled Substances Act, G.S. 90-86 through 90-113.8. We need not decide here whether currency may ever be properly subject to forfeiture under the terms of G.S. 90-112. We do find, however, that the currency in question was not subject to forfeiture under G.S. 90-112 solely by virtue of being found in "close proximity" to the controlled substance which the defendant was convicted of possessing.

The trial court was required, upon the defendant's motion in open court after the new trial, to hear the motion and consider evidence tendered with regard to the proper disposition of the currency and to rule upon that motion. The original order having been vacated by us, a ruling by the trial court on the motion would not violate the general rule precluding one judge of the Superior Court Division from reviewing the decisions of another. Simpson v. Plyler, 258 N.C. 390, 398, 128 S.E.2d 843, 849 (1963); Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377, reh. den. 232 N.C. 744, 59 S.E.2d 429 (1950); 3 Strong, N. C. Index 3d, Courts, § 9.5, p. 592.

We must remand this case in order that the trial court may consider the defendant's motion and hear such evidence concerning the motion as may be offered by the defendant and other parties. We note that the jury's determination of the defendant's guilt of possession of heroin is not the equivalent of a judicial determination that he was the owner of that heroin or, by implication, of currency found in close proximity to the heroin. Possession is not the equivalent of title. On remand the trial court will be required to enter an order providing for the disposition of the currency as provided by law.

For reasons previously stated, this case must be remanded for further proceedings consistent with law and this opinion, and is hereby so

Remanded.

BROCK, C. J., and HEDRICK, J., concur.