# FILED January 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1997 RICKY SUMMERS, ) 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 Generaland Reporter Nashvill e, TN 37201 LISA A. NAY LOR Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243 VICTOR S . JOHN SON Distri ct Attorney General JON SEABORG Assistant Attorney General 222 Se cond A venue N orth Nashvill e, TN 37201-1649 OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE1 Tennessee Code Annotated Section 29-21-116(b) provides that the official upon whom a petiti on 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 ( citi ng Ussery v. Avery , 222 Tenn. 50, 432 S.W.2d 656 (1968). Future noncompliance with this statute on the part of the Stat e may result i n 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- 

## OPINION

On A ugus t 4, 199 4, a Da vidson Coun ty jury co nvicted Appe lla nt, Ricky Summers, of one count of possession of a sch edule II d rug for resale. He was sentenced to f iftee n yea rs i n th e Tenn esse e Depa rtme nt of Cor recti on. On September 7, 1995 , Appella nt filed a pe tition for hab eas co rpus relief; th e State failedto file a reply. 1 On Fe bruary 2, 1 996, t he Honorabl e Seth No rman he ard appe llant’s petiti on. Appellant appeals fr

om the trialcourt’s denial of his peti tion.

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 broughta forfei ture acti on under T enn. C ode An n. § 53-1 1-201, et seq. As a result of this

action, the petit ioner was compell ed to f orfeit $12,255.00 to

the State. Appellant was subsequent ly trie d and c onvicted of posse ssion of a sche dule II drug f

or resale. In its denial of Appellant’ s petiti on for wri t of habeas corpus, the trial c ourt he ld that Appell ant’s pet ition was not the proper

metho d to attackhis convi ction, which thecourt consi dered to be onl y potenti ally voidable.-3- DOUBLE JEOPARDY

In his petiti on for a wri t of habeas corpus, Appellan t allege d that hi s convicti on for posse ssion of c ocaine with intent to s ell is void bec ause th e State punished him through the civilforfei ture of $12, 255.00. Peti tioner cl aims that t he prosecutionwas in viol ation of the double jeopar dy clauses of

the United States and Tennessee Constitut ions. Appell ant reli es upon United States v. Ursery , 59 F.3d 568 ( 6th Cir. 19 95). However, that deci sion was overt urned by the Uni ted States Supreme Court whi ch held that in r em civil forfei tures are neither “punish ment” nor criminalproceedingsforthe purposes of the Double Jeopardy C lause. S ee United States v. Ursery , 116 S.Ct. 2 135, 2149, 135 L. Ed. 549 (1996). See also State v. Lee , C.C.A
. No. 01C01-9603-CR-00081, Davi dson Coun ty (Tenn. Crim. App. , Nashvil le, May 7, 1996) and Crutch er v. State , C.C. A. No. 01C01-9604-CR-00130, Davi dson County (Tenn. Cri m. App., Nashvil le, 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 fo r 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 j eopardy for the same offense, because on e of the essent ial eleme nts of the cri minal offense charged in t his case is that Appell ant possessed a controll ed substance, an el ement not requir ed for civil for

feitur e.-4- According ly, the judgment of t he trialcourt denyi ng Appellant’ s petiti on for a writ of habeas corpus is affirmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ WILLI AM M. B ARKER, JUDGE