Ricky Summers v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JULY SESSION, 1997 January 28, 1998

Cecil W. Crowson RICKY SUMMERS, ) Appellate Court Clerk C.C.A. NO. 01C01-9608-CR-00332 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON . SETH N ORM AN STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Habeas Corpus)

FOR THE APPELLANT: FOR THE APPELLEE:

MARIAN C. FORDYCE JOHN KNOX WALKUP 129 Se cond A venue N orth Attorney General and Reporter Nashville, TN 37201 LISA A. NAYLOR Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243

VICTOR S. JOHNSON District Attorney General

JON SEABORG Assistant Attorney General 222 Se cond A venue N orth Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE

OPINION

On A ugus t 4, 199 4, a Da vidson Coun ty jury co nvicted Appe llant, Ricky Summers, of one count of possession of a schedule II drug for resale. He was sentenced to fifteen years in the Tennessee Department of Correction. On September 7, 1995 , Appella nt filed a pe tition for hab eas co rpus relief; th e State failed to file a reply.1 On Fe bruary 2, 1 996, the Honorable Seth No rman he ard appe llant’s petition. Appellant appeals from the trial court’s denial of his petition.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS

On May 19 , 1993, afte r Appe llant was a rrested a nd cha rged, the State brought a forfeiture action under T enn. C ode An n. § 53-1 1-201, et seq. As a result of this action, the petitioner was compelled to forfeit $12,255.00 to the State. Appellant was subsequently tried and c onvicted of posse ssion of a sche dule II drug for resale. In its denial of Appellant’s petition for writ of habeas corpus, the trial c ourt he ld that Appellant’s petition was not the proper metho d to attack his conviction, which the court considered to be only potentially voidable.

1 Tennessee Code Annotated Section 29-21-116(b) provides that the official upon whom a petition for w rit of h abe as c orpu s is se rved shall r esp ond to the petitio n. “T he pr ovisio ns of this subsection are m andatory.” Carroll v. Sta te, 713 S.W.2d 92, 93 (citing Ussery v. Avery, 222 Tenn. 50, 432 S.W.2d 656 (1968). Future noncompliance with this statute on the part of the State may result in a remand such as occurred in Car roll. How ever , in this cas e, un like in the s ituatio n in Car roll, we have a transc ript before us and are able to discern why the pe tition was m eritless.

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DOUBLE JEOPARDY

In his petition for a writ of habeas corpus, Appellant alleged that his conviction for posse ssion of c ocaine with intent to s ell is void bec ause th e State punished him through the civil forfeiture of $12,255.00. Petitioner claims that the prosecution was in violation of the double jeopardy clauses of the United States and Tennessee Constitutions. Appellant relies upon United States v. Ursery, 59 F.3d 568 (6th Cir. 1995). However, that decision was overturned by the United States Supreme Court which held that in rem civil forfeitures are neither “punish ment” nor criminal proceedings for the purposes of the Double Jeopardy Clause. See United States v. Ursery, 116 S.Ct. 2135, 2149, 135 L.Ed. 549 (1996). See also State v. Lee, C.C.A . No. 01C01-9603-CR-00081, Davidson Coun ty (Tenn. Crim. App., Nashville, May 7, 1996) and Crutch er v. State , C.C.A. No. 01C01-9604-CR-00130, Davidson County (Tenn. Crim. App., Nashville, March 20 , 1997), perm. to appeal denied (Tenn. 1997) (applying Ursery).

Further, as the Sta te sets out in its b rief, Ap pellan t’s crim inal co nviction did not punish h im for the “same offense” as the c ivil forfeiture. Under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), Appellant was not twice put into jeopardy for the same offense, because one of the essential eleme nts of the criminal offense charged in this case is that Appellant possessed a controlled substance, an element not required for civil forfeiture.

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According ly, the judgment of the trial court denying Appellant’s petition for a writ of habeas corpus is affirmed.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ WILLIAM M. BARKER, JUDGE

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