        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.

                                                    -2-
                                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.




                                           -3-
      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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