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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