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State v. Cuevas-Fonseca

December 30, 1996

STATE OF WASHINGTON, APPELLANT,
v.
VINCENTE CUEVAS-FONSECA, RESPONDENT.



Appeal from Superior Court of Skagit County. Docket No: 95-1-00007-9. Date filed: 07/20/95. Judge signing: Hon. George E. McIntosh.

PER CURIAM. The trial court dismissed the VUSCA charge against Vincente Cuevas-Fonseca on the grounds the charge was barred by double jeopardy protections. The State argues that the trial court's double jeopardy analysis has since been rejected by the Washington State Supreme Court in State v. Cole, infra. We agree and reverse the order of dismissal.

DECISION

Vincente Cuevas-Fonseca sold cocaine to an undercover officer and was paid $1,000 in recorded buy-money. The police recovered the money later that same day.

The police served Cuevas-Fonseca with a "Notice of Seizure and Intended Forfeiture" when they seized the cash. At the forfeiture hearing, the examiner held there was probable cause to believe the $1,000 constituted proceeds of a drug transaction and that the money should be forfeited.

The State charged Cuevas-Fonseca with delivery of cocaine based on the same transaction. The defense moved to dismiss the charge, arguing that jeopardy attached when the forfeiture order was entered. Accordingly, the defense argued that the criminal prosecution constituted multiple punishment that was barred under the double jeopardy prohibition. The superior court Judge agreed and dismissed the charge. The State appealed.

The appeal was stayed pending the State Supreme Court's decision in State v. Cole, 128 Wash. 2d 262, 906 P.2d 925 (1995). There, the Court held that forfeiture of proceeds directly traceable to a criminal violation does not constitute punishment for purposes of double jeopardy.

Relying on Cole, the State argues that the buy money constituted proceeds of the illegal drug transaction. Thus, the forfeiture of the money does not implicate double jeopardy protections and the superior court Judge erred by dismissing the criminal charge.

The defense implicitly agrees. By letter dated November 15, 1996, counsel for Cuevas-Fonseca advised the court as follows:

I have spoken with my client and explained to him that in light of State v. Cole 128 Wash. 2d 262, 906 P.2d 925 (1995) and United States v. Usery 1996 WL 340815 (US) the issues to be decided by the Court have been resolved. It is therefore our intention not to file a responsive brief in this matter.

Under Cole, the trial court erred by dismissing the criminal prosecution. We reverse and remand for reinstatement of the charge.

19961230 ...


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