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State v. Allen

March 24, 1997

STATE OF WASHINGTON, APPELLANT,
v.
DARRYL ANTHONY ALLEN, RESPONDENT



Appeal from Superior Court of King County. Docket No: 94-1-06200-6. Date filed: 03/10/95. Judge signing: Hon. Deborah D. Fleck.

PER CURIAM. The State of Washington appeals the trial court's dismissal of Darryl Allen's jury conviction of delivery of cocaine in a school zone. Following conviction, but prior to sentencing, the court found that Allen's conviction, which followed the civil forfeiture by default of $193 found in Allen's pocket incident to his arrest, constituted a second punishment in violation of the double jeopardy prohibition. We hold that because Allen never became a party to the civil forfeiture proceeding and, therefore, was not placed in jeopardy by it, he cannot claim to have been subjected to double jeopardy. Accordingly, we reverse, reinstate the conviction, and remand for sentencing.

FACTS

Darryl Allen was arrested in September 1994, for selling cocaine in a school zone to an undercover police officer during a "buy-bust" operation in Seattle. During a search incident to the arrest, police recovered $193 from Allen's pocket. He was charged with one count of delivery of cocaine in a school zone.

Police timely served Allen with a notice of seizure and intended forfeiture of the $193. The notice advised Allen that he had 45 days in which to claim the money. He did not respond. On November 10, 1994, based Allen's failure to timely claim the $193, an order of forfeiture by default was entered.

Two weeks after the forfeiture hearing, Allen's trial began. A jury found him guilty as charged.

Before sentencing, Allen moved to vacate the conviction and for dismissal of the charge, arguing that his criminal prosecution was barred by the double jeopardy clauses of the Fifth Amendment to the United States Constitution and Art. 1 sec. 9 of the Washington Constitution, as a second punishment for the same underlying offense. The court agreed, and dismissed the conviction.

DECISION

The only issue on appeal is whether the trial court erred in granting Allen's double jeopardy motion to dismiss. We find that it did.

This case is controlled by State v. Anderson, 81 Wash. App. 636, 639-40, 915 P.2d 1138 (1996) which holds that a party who defaults in a civil forfeiture proceeding does not become a party to that proceeding and, therefore, is not placed in jeopardy by it. In Anderson, the defendant was timely served with notice of intended forfeiture but never made a claim to the property. Anderson, 81 Wash. App. at 638. The Anderson court, relying on United States v. Torres, 28 F.3d 1463, 1465, cert. denied, 130 L. Ed. 2d 603, 115 S. Ct. 669 (1994) and on language approving Torres in the Washington Supreme Court's decision in State v. Cole, 128 Wash. 2d 262, 282 n. 15, 906 P.2d 925 (1995) held that because the defendant did not become a party to the forfeiture proceeding, he was not placed in jeopardy and, therefore, was barred from claiming that a subsequent criminal prosecution was barred by double jeopardy. *fn1 Anderson, 81 Wash. App. at 639-40. See also, State v. Lyons, Wash. App., P.2d, 1997 WL 94150 (1997) in which the court, citing Anderson, held that the appellant had no double jeopardy claim in that the record did not disclose that he was a party to the civil forfeiture action.

Here, as in Anderson, Allen was served with a notice of forfeiture but never responded. Because he was not a party to the forfeiture proceeding, he was not placed in jeopardy by it. Accordingly, his claim of double jeopardy must fail.

We reverse the order of dismissal, reinstate Allen's conviction, and ...


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