State v. Bacon

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST 1997 SESSION
September 17, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9609-CR-00348
Appellee, )
) Sullivan County
V. )
) Honorable R. Jerry Beck, Judge
)
TOMMY A. BACON, ) (Double Jeopardy -
) Forfeiture Proceedings)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Stephen M. Wallace Charles W. Burson
District Public Defender Attorney General & Reporter
Gale K. Flanary Peter M. Coughlan
Assistant Public Defender Assistant Attorney General
P.O. Box 839 Criminal Justice Division
Blountville, TN 37617-0839 450 James Robertson Parkway
Nashville, TN 37243-0493
H. Greeley Wells, Jr.
District Attorney General
Gregory A. Newman
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Tommy A. Bacon, was indicted for selling over .5 ounces of
marijuana, possession of over .5 ounces of marijuana with intent to sell, and
possession of drug paraphernalia. Following a summary administrative
forfeiture, the appellant moved to dismiss his criminal charges. He argued that
the double jeopardy clause prohibited criminal prosecution. The trial judge
denied the appellant's motion. He pled guilty to all three charges, appealing a
certified question of law regarding the double jeopardy issue to this Court. Upon
review, we affirm the judgment of the trial court.
FACTS
The appellant was arrested for selling marijuana. The arresting officer
confiscated $667.31 from the appellant pursuant to Tenn. Code Ann. § 53-11-
451. The appellant was informed that he had a right to a hearing to challenge
the seizure. However, the appellant never exercised this right. The $667.31
was, therefore, summarily forfeited to the Tennessee Department of Safety.
ANALYSIS
The appellant concedes that he was provided notice of the right to
challenge the forfeiture. He, however, elected to neither file a claim nor enter an
appearance to contest the forfeiture. It is well settled that a party asserting
double jeopardy must have been a party to a prior proceeding. United States v.
Schinnell, 80 F.3d 1064, 1068 (5th Cir. 1996); United States v. Torres, 28 F.3d
1463, 1465 (7th Cir 1994). To attain party status in a civil forfeiture, one must, at
the very least, file a claim in response to the notice of seizure. See United
States v. Walsh, 873 F. Supp. 334, 336-37 (D. Ariz. 1994) (citing Torres for the
proposition that jeopardy did not attach to a forfeiture where defendant did not
make any claim in civil forfeiture proceeding).
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The appellant elected not to file a claim. Having made this election, he
was neither a party to nor was punished by the nontrial forfeiture.1
Albeit a legal fiction, unclaimed property is technically abandoned or unowned.
Forfeiture of unowned or abandoned property punishes no one. United States v.
Schinnell, 80 F.3d 1064, 1068 (5th Cir. 1996). Jeopardy cannot attach in the
absence of either a party or a punishment. The trial court's denial of the
appellant's motion to dismiss the indictment is affirmed.
______________________________
PAUL G. SUMMERS, Judge
CONCUR:
1
This is not to say that had the appellant filed a proper claim, the state would have been
barred from bringing subsequent crim inal prosecution. See U.S. v. Ursery, 64 U.S.L.W 4565 (1996)
(holding in rem civil forfeitures not punishment for purposes of double jeopardy). We merely hold that
in the absence of standing, we do not reach the substantive issue.
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___________________________
GARY R. WADE, Judge
___________________________
WILLIAM M. BARKER, Judge
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