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State v. Fleming6/11/1998
DATE OF JUDGMENT: 03/06/96
TRIAL JUDGE: HON. JOHN WHITFIELD
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION REVERSED AND REMANDED - 6/11/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
. Here, the State appeals a lower court's dismissal of a criminal indictment charging the appellee with possession of cocaine with intent to transfer or distribute on grounds that the prior forfeiture of the appellee's motor home and $3,300 constituted punishment for purposes of the Double Jeopardy Clause and therefore barred the criminal prosecution of the appellee. We conclude the forfeiture was not punishment for purposes of the Double Jeopardy Clause and that the trial court therefore erred in dismissing the indictment. We reverse accordingly.
I.
. On September 01, 1994, Edward Fleming was stopped by local law enforcement for driving his motor home in a careless manner. A subsequent search of the vehicle produced $3,300 and 220 pounds of cocaine, which was promptly seized. The State initiated a civil forfeiture proceeding against the cash and the motor home pursuant to Miss. Code Ann. § 41-29-153. Fleming did not contest the forfeiture of these items.
. Following the forfeiture, Fleming was indicted for possession of cocaine with intent to transfer or distribute. He filed a motion to dismiss on the ground that the criminal prosecution was barred by double jeopardy as enumerated in the Fifth Amendment of the federal constitution and Article 3, § 22 of the Mississippi Constitution. The circuit court agreed and granted Fleming's motion to dismiss. Aggrieved, the State appeals this decision.
II.
. The State argues that the forfeiture of Fleming's property was not "jeopardy" within the meaning of the Double Jeopardy Clause and that the subsequent criminal prosecution was therefore not barred. The State relies upon United States v. Ursery, 518 U.S. 267 (1996) in which the United States Supreme Court held that most civil in rem forfeitures do not constitute punishment for purposes of the Double Jeopardy Clause. Additionally, the State argues that, as in Ursery, the civil in rem forfeiture here did not constitute punishment. Still further, the State contends that the forfeiture, if determined by this Court to be punishment, did not result from the same crime for which Fleming was indicted and therefore does not give rise to multiple prosecutions for the same crime.
. Fleming, on the other hand, asserts the trial court's dismissal of the indictment was not error. He argues that any forfeiture that does not serve a purely remedial purpose is punishment against the property owner and provokes the Double Jeopardy Clause. He also notes the United States Supreme Court recognized that a civil forfeiture is "punishment" for purposes of the Excessive Fines Clause of the Eighth Amendment of the federal constitution in Austin v. United States, 509 U.S. 602 (1993). Thus, he argues it logically follows that a forfeiture should be considered punishment under the Double Jeopardy Clause as well.
. In dismissing the indictment against Fleming, the record reveals the trial court relied exclusively upon United States v. Perez, 70 F.3d 345 (5th Cir. 1995). There, the Fifth Circuit concluded that a civil forfeiture of an automobile seized after drugs were found inside the vehicle barred a later prosecution of the owner for possession of the same drugs. The Supreme Court, however, squarely overruled Perez in Ursery. See United States v. Perez, 110 F.3d 265 (5th Cir. 1997) (vaca
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