# FILED
September 17, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT KNOXVILLE AU GUST 1997 SESSIO N

STA TE OF TENN ESSEE, ) ) C.C.A. N o. 03C01-9609-C R-00348 Appellee, ) ) Sulliv an County V. ) ) Honorab le R. Jerry Be ck, Judge ) TOMMY A . BACON, ) (Double Jeopardy - ) Forfeiture Proceedings) Appellant. )

FOR TH E APPEL LANT: FOR THE APPELLEE: Stephen M. W allace Charles W. Burson Distric t Public Defender Attorney General & Reporter Gale K. Flanary Peter M. Coug hlan Assistant Publ ic Defender Assistant Att orney Gener al P.O. Box 839 Criminal J ustice Div ision Blountvil le, TN 37617-0839 450 James Roberts on Parkway Nashvil le, TN 37243-0493 H. Greeley We lls, Jr. Distric t Attorney General Gregory A. Newman Assistant D istrict A

ttorney Gener

al P.O. Box 526 Blountvil le, TN 37617-0526

OPINION FILE D: ___________________
AF FIRMED
PAU L G. SUMM ERS, Judge-2- O P I N I O N The appellant, Tommy A . Bacon, was indicted for s elling over .5 ounces of marijuana, poss ession of over .5 ounces of marij uana with i ntent to sell, and poss essi on of drug p arap hern alia . Foll owing a summ ary ad mini stra tive forfeiture, the appell ant moved to di smiss his c riminal char ges. He argued that the dou ble jeop ardy claus e prohib ited crim inal pros ecutio n. The trial judge denied the app ellant' s motio n. He pled guilty to all t hree cha rges, app ealing a certified que stion of law regardingthe double jeopar dy issue t o this Court . Upon review , we affirm the j udgment of the tri al court.

FACTS
The appellant was arrested for selling marijuana. The ar resting officer confiscated $667.31 from t he appellant purs uant to Tenn. Code Ann. § 53-11- 451. T he app ellant was inform ed that he had a right to a h earing to challen ge the seizure. However, the appella nt never exercised thi s right. The $667.31 was, therefore, summarily forfeited to the Tennessee Department of Safety.

AN ALYSIS
The appellant concede s that he wa s provide d notice of the ri ght to challenge th e forfeiture. He, however , elected to nei ther file a cl aim nor enter an appearance to conte st the forfeiture. It is we ll settled t hat a party asserting double jeopardy

must have been a

party to a

prior proceeding. Unit ed St ates v. Schinnell , 80 F.3d 1064, 1068 (5th Cir. 1996); United States v . Torres , 28 F.3d 1463, 1465 (7th Ci r 1994). To attai n party st atus in a civ il forfeiture, onemust, at the very least, file a c laim in resp onse to the notice of seizure. See United States v. W alsh , 873 F. S upp. 33 4, 336- 37 (D. Ariz. 1 994) (cit ing Torres for the proposition t hat jeopardy did not attach t o a forfeiture w here defendant did not make any claim in civil forfeiture proceeding).1 This is not t o say that had the appe llant filed a proper claim, t he state would have been barred from bringing s ubseq uent crim inal prose cution. See U.S. v. Ursery , 64 U.S.L. W 4565 (1996) (holding in rem civil forfeit ures not puni shment for purposes of double j eopardy). W e merely hold t hat in the ab sence of standi ng, we do not reach the sub stanti ve issue.

-3- The appellant elect ed not to file a cl aim. Havi ng made this el ection, he was neither

a party to

nor was punished by t he nontrial forfeit ure. 1 Albeit a leg al fiction, uncl aimed property is technica lly abandoned or unowned. Forfeiture of unow ned or abandoned prope rty punis hes no one. Unit ed St ates v. Schinnell , 80 F.3d 1064, 1068 (5th Cir. 1996). Jeopardy cannot attach i n the absence of either a party or a punishment. The tr ial court' s denial of the appellant's moti on to dismiss the indictment i s affirmed.

______________________________ PAUL G. S UMMERS, Ju dge
CONCUR:-4- ___________________________ GARY R. W ADE, Jud ge

___________________________ WILLIAM M. BARKER, Judge