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Tellevik v. Real Property Known

August 29, 1996

GEORGE B. TELLEVIK, CHIEF, WASHINGTON STATE PATROL, RESPONDENT,
v.
REAL PROPERTY KNOWN AS 6717 100TH STREET S.W., LOCATED IN PIERCE COUNTY, WASHINGTON AND ALL APPURTENANCES AND IMPROVEMENTS THEREON, DEFENDANT, JOHN JOSEPH CHAVEZ, APPELLANT.



Superior Court of Pierce County. Superior Court Docket No. 90-2-10574-7. Date Filed In Superior Court: March 31, 1994. Superior Court Judge Signing: Thomas Sauriol.

As Corrected September 5, 1996.

Written By: Morgan, J., Concurred IN By: Houghton, A.c.j., Turner, J.

The opinion of the court was delivered by: Morgan

MORGAN, J. -- John Joseph Chavez was convicted of manufacturing marijuana. Thereafter, the State forfeited his home. Chavez now argues that the forfeiture violated the double jeopardy clause, the excessive fines clause, and Washington's homestead exemption. Because the trial court did not determine whether the forfeiture is unconstitutionally excessive, we reverse and remand for further proceedings.

In September 1990, police officers discovered that Chavez was growing marijuana in his residence at 6717 100th Street S.W., Tacoma. On September 24, 1990, the State charged him with one count of manufacturing marijuana. On December 21, 1990, he was convicted.

Meanwhile, on November 13, 1990, the State filed a separate civil action in which it sought to forfeit Chavez' home. *fn1 It did not allege that the home had been acquired with the proceeds of criminal activity.

On December 1, 1993, the State moved for summary judgment in the forfeiture case. At a hearing held on February 25, 1994, Chavez argued that forfeiture would constitute double jeopardy within the meaning of the Fifth Amendment to the United States Constitution and Article I, § 9 of the Washington Constitution; an excessive fine within the meaning of the Eighth Amendment and Austin v. United States; *fn2 and a violation of his homestead rights under Washington Constitution Article XIX, § 1, and RCW 6.13.070(1). He asserted, in the course of arguing his excessive fines claim, that the trial court was required to conduct "a proportionality-type analysis." *fn3 Rejecting all his claims, the trial court granted an order of forfeiture without making a proportionality analysis. Chavez then filed this appeal.

I. DOUBLE JEOPARDY

Chavez argues that the order of forfeiture violates the federal and state double jeopardy clauses. The federal clause guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." *fn4 The state jeopardy clause guarantees that "no person shall be . . . twice put in jeopardy for the same offense." *fn5 We take the federal claim first.

A.

The United States Supreme Court recently discussed how the federal double jeopardy clause should be applied to the civil in rem forfeiture of a home used in the manufacture of a controlled substance. In United States v. Ursery, *fn6 a defendant was growing marijuana in his home. After he had been convicted criminally, the government obtained an order forfeiting the home. The defendant's appeal reached the United States Supreme Court, and that Court help that civil forfeiture is remedial for purposes of double jeopardy, except "where the 'clearest proof' indicates that an in rem civil forfeiture is 'so punitive either in purpose or effect' as to be equivalent to a criminal proceeding." *fn7 The Court concluded that the order forfeiting Ursery's home was not within the stated exception; that the order was remedial rather than punitive; and thus that the order did not constitute double jeopardy.

Ursery supersedes State v. Clark *fn8 on the question of when a forfeiture constitutes punishment for purposes of double jeopardy. The Clark court was construing the federal double jeopardy clause--it expressly said it was not reaching the defendant's state constitutional claim *fn9 --and it is axiomatic that the United States Supreme Court's construction of the federal clause is controlling.

Here, there is no evidence that would trigger Ursery's exception. Hence, Chavez lacks a claim cognizable under the federal double jeopardy clause.

B.

According to the Washington Supreme Court, the state double jeopardy clause offers no more protection than the federal one. *fn10 Chavez lacks a claim under the federal clause for the reasons just stated. ...


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