State of Tennessee v. Graple Simpson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1996 SESSION FILED
August 2, 1996
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9601-CC-00016
Appellant, )
) McNairy County
V. )
) Honorable Joseph H. Walker, III, Judge
)
GRAPLE SIMPSON, ) (State Appeal - Dismissal of Indictment)
)
Appellee. )
FOR THE APPELLEE: FOR THE APPELLANT:
Lloyd R. Tatum Charles W. Burson
Attorney at Law Attorney General & Reporter
124 East Main Street
P.O. Box 293 William David Bridgers
Henderson, TN 38340 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Elizabeth T. Rice
District Attorney General
Ed Neal McDaniel
Asst. Dist. Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED: ___________________
REVERSED AND REMANDED; INDICTMENT REINSTATED
PAUL G. SUMMERS,
Judge
OPINION
The appellee, Graple Simpson, was indicted for possession of a schedule
II narcotic with the intent to sell. Following a summary administrative forfeiture,
the appellee moved the trial court to dismiss the criminal charge. She argued
that the double jeopardy clause prohibited further criminal prosecution. The trial
judge granted the appellee's motion and the state appealed. We reverse and
remand.
FACTS
The appellee's home was searched pursuant to a warrant. The police
confiscated ten Dilaudid pills and $ 124.50. The seized money was stored in a
jar and consisted mainly of coins. The appellee was served with a notice of
seizure on April 3, 1995. The notice advised that she had 30 days within which
to file a claim if she intended to contest forfeiture of the money. The appellee,
however, chose not to file a claim. The property was subjected to administrative
forfeiture by the state on July 12, 1995.
On May 15, 1995, the grand jury returned a true bill of indictment against
the appellee for possession of Dilaudid with intent to deliver. The appellee
moved to dismiss the criminal indictment arguing that further criminal prosecution
would violate the principles of double jeopardy. The trial court found that the
appellee had previously been punished by the forfeiture. The court dismissed
the indictment as constituting multiple punishments for the same offense.
ANALYSIS AND HOLDING
-2-
The appellee concedes that she was provided notice of the forfeiture
proceedings. She, however, elected to neither file a claim nor enter an
appearance to contest the forfeiture. Accordingly, we must decide whether a
non-trial administrative forfeiture constitutes punishment which would operate to
bar subsequent criminal sanctions.
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 proposition that jeopardy did not attach to forfeiture
proceeding where defendant did not make any claim in civil forfeiture
proceeding).
The appellee elected not to file a claim. Having made this election, she
was neither a party to nor was punished by the non-trial 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 order dismissing the
appellant's case is, therefore, reversed. The indictment is reinstated and the
case will be set on the active docket for disposition.
__________________________________
1
This is not to say that had the appellee filed a proper claim, the state would have been
barred from bringing subsequent criminal prosecution. See United States v. Ursery, 64 U.S.L.W .
4565 (1996) (holding in rem civil forfeitures not punishment for purposes of double jeopardy). W e
merely hold that in the absence of standing, we do not reach the substantive issue.
-3-
PAUL G. SUMMERS, Judge
CONCUR:
_____________________________
DAVID G. HAYES, Judge
_____________________________
PAUL R. SUMMERS, Special Judge
-4-