FILED

January 28, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1997

RICKY SUMMERS, ) C.C.A. NO. 01C01-9608-CR-00332

)

Appellant, )

)

) DAVIDSON COUNTY

VS. )

) HON. SETH NORMAN

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Habeas Corpus)

FOR THE APPELLANT: FOR THE APPELLEE:

MARIAN C. FORDYCE JOHN KNOX WALKUP

129 Second Avenue North 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 Second Avenue North

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
1

Tennessee Code Annotated Section 29-21-116(b) provides that the official upon whom a petition

for writ of habeas corpu s is se rved shall r espond to the petitio n. “The 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 Carroll. How ever, in this case, unlike in the s ituatio n in

Carroll, we have a transc ript before us and are able to discern why the pe tition was m eritless. 

-2-

OPINION

 On August 4, 1994, a Davidson County jury convicted Appellant, 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, Appellant filed a petition for habeas corpus relief; the State

failed to file a reply.1 On February 2, 1996, the Honorable Seth Norman heard

appellant’s petition. Appellant appeals from the trial court’s denial of his petition.

After a review of the record, we affirm the judgment of the trial court.

FACTS

On May 19, 1993, after Appellant was arrested and charged, the State

brought a forfeiture action under Tenn. Code Ann. § 53-11-201, 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 convicted of possession of a

schedule II drug for resale. In its denial of Appellant’s petition for writ of habeas

corpus, the trial court held that Appellant’s petition was not the proper method to

attack his conviction, which the court considered to be only potentially voidable.
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DOUBLE JEOPARDY

In his petition for a writ of habeas corpus, Appellant alleged that his

conviction for possession of cocaine with intent to sell is void because the 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

“punishment” 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

County (Tenn. Crim. App., Nashville, May 7, 1996) and Crutcher 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 State sets out in its brief, Appellant’s criminal conviction did

not punish him for the “same offense” as the civil 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

elements of the criminal offense charged in this case is that Appellant possessed

a controlled substance, an element not required for civil forfeiture.
-4-

Accordingly, 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