      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




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        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




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