      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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