            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE             FILED
                              DECEMBER 1996 SESSION
                                                              May 7, 1997

                                                         Cecil W. Crowson
STATE OF TENNESSEE,                    )   NO. 01-C-01-9603-CR-00081 Clerk
                                                       Appellate Court
                                       )
      Appellant,                       )   DAVIDSON COUNTY
                                       )
V.                                     )   HON. SETH W. NORMAN, JUDGE
                                       )
JUDONE A. LEE                          )   (Possession of Cocaine and
                                       )   Forfeiture)
                                       )
      &                                )
                                       )
WILLIAM C. WATERS,                     )
                                       )
      Appellees.                       )


FOR THE APPELLEES                          FOR THE APPELLANT

Glenn R. Funk                              John Knox Walkup
222 Second Avenue, North, Ste. 340-M       Attorney General and Reporter
Nashville, Tennessee 37201                 450 James Robertson Parkway
                                           Nashville, Tennessee 37243-0493
      for Judone A. Lee
                                           William David Bridgers
Virginia Lee Story                         Assistant Attorney General
P.O. Box 1608                              450 James Robertson Parkway
Franklin, Tennessee 37065-1608             Nashville, Tennessee 37243-0493

      for William C. Waters                Victor S. Johnson, III
                                           District Attorney General
                                           Washington Square, Ste 500
                                           222 Second Avenue, South
                                           Nashville, Tennessee 37201

                                           John Zimmerman
                                           Assistant District Attorney General
                                           Washington Square, Ste 500
                                           222 Second Avenue, South
                                           Nashville, Tennessee 37201


OPINION FILED:______


REVERSED


William M. Barker, Judge
                                                Opinion

        The State of Tennessee appeals as of right the Davidson County Criminal

Court’s dismissal of the Appellees’ indictments for possession of cocaine with intent to

sell or deliver. The trial court found that the Appellees’ protection against former

jeopardy had been violated in that the Appellees had already been punished for their

crimes by the State’s seizure of two vehicles used in the drug sale. The State argues

on appeal that the civil forfeiture of the Appellees’ vehicles does not amount to

punishment pursuant to the double jeopardy clauses of the United States and the

Tennessee Constitutions. We agree and reverse the trial court.

        On May 23, 1994, undercover officers bought $ 9,000.00 worth of cocaine from

the Appellees and one other person. It is undisputed that the Appellees used one

1978 Cadillac belonging to Appellee Waters and one 1984 Ford Probe belonging to

Appellee Lee to facilitate the drug sale. The following day the State filed a notice of

seizure for the two vehicles with the Tennessee Department of Safety, pursuant to

Tennessee Code Annotated, section 53-11-201. Tenn. Code Ann. § 53-11-201

(Supp. 1996).

        On May 16, 1995, the Appellees were indicted for possession of cocaine with

intent to sell or deliver. In June and July the Appellees filed motions to dismiss the

indictments on double jeopardy grounds alleging that criminal prosecution would

amount to double jeopardy since they had already been punished by the civil

forfeiture.1 After a hearing, the Davidson County Criminal Court granted both motions

and dismissed the indictments. The State now appeals.

        The State argues that civil forfeiture followed by criminal prosecution in

connection with the same criminal activity does not place the Appellees in double



        1
          The Department of Safety later returned Appellee Lee’s car in return for a $100 donation to the
Metropolitan Nashville Police Department Drug Enforcement Fund. Appellee Lee now contends that the
fact that he was forced to make the donation amounts to punishment in violation of the protection
against d ouble jeo pardy. App ellee Lee’s donation has no effect on the outco me o f this opinion .

                                                    2
jeopardy. The State is correct.

       The double jeopardy provisions of the Constitutions of the United States and

Tennessee were designed to make sure that no person would be prosecuted twice or

receive multiple punishment for the same offense. See United States v. Dixon, 509

U.S. 688, 696, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993); State v. Harris, 919

S.W.2d 323, 327 (Tenn. 1996). Since the trial court’s dismissal of the indictments at

issue, the United States Supreme Court has held that a civil forfeiture in connection

with a criminal indictment does not amount to double jeopardy under the United States

Constitution. United States V. Ursery, __ U.S.__, 116 S.Ct. 2135, 135 L.Ed.2d 549

(1996). This Court has applied the results of the Ursery decision to the double

jeopardy provision of the Tennessee Constitution and held that a civil forfeiture

pursuant to Tennessee Code Annotated, section 53-11-201, does not prohibit the

State from bringing criminal charges against drug offenders whose property has been

forfeited to the State. See State of Tennessee v. James C. Bradely and Mickey Eller,

C.C.A. No. 03C01-9510-CC-00318 (Tenn. Crim. App., Knoxville, Sept 4, 1996); State

of Tennessee v. Charles David Wagner, C.C.A. No. 03C01-9511-CC-00346 (Tenn.

Crim. App., Knoxville, Sept. 18, 1996); State of Tennessee v. Grapel Simpson and

Linda Sue Simpson Horton, C.C.A. No. 02C01-9508-CC-00240 (Tenn. Crim. App.,

Jackson, Sept. 30, 1996). Pursuant to these decisions we conclude that criminal

prosecutions for possession of cocaine in addition to the civil forfeiture of the

Appellees’ vehicles do not place the Appellees at risk of double jeopardy.

Accordingly, the trial court’s dismissal of the indictments is reversed and this case is

remanded to the trial court for further proceedings consistent with this opinion.




                                             3
                                 __________________________
                                 WILLIAM M. BARKER, JUDGE


CONCUR:



__________________________
PAUL G. SUMMERS, JUDGE



__________________________
JOE G. RILEY, JUDGE




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