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State v. Harmon

April 14, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
ANTOINO HARMON, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-02194-4. Date filed: 01/09/96.

PER CURIAM. --Antonio Harmon appeals his conviction of possession of cocaine with intent to deliver. He contends that his conviction violated double jeopardy because he already had been punished by forfeiture of $804 and two pagers. Because Harmon defaulted in the forfeiture proceeding, he was not placed in jeopardy. Therefore, his subsequent criminal conviction did not place him twice in jeopardy. We affirm.

Harmon was arrested on February 3, 1994, after police searched his residence pursuant to a search warrant and found 24 rocks of cocaine. The search warrant was based on previous controlled buys out of Harmon's residence. The police found $844 in Harmon's pocket and two pagers.

Forty dollars of it was prerecorded money from one of the previous controlled buys. On the day of his arrest, Harmon was served with a notice of seizure and intended forfeiture for the $804 and the pagers. Harmon signed the notice, which informed him he had 45 days to make a claim to the seized property and request a hearing.

Detective John Mattson discussed with Harmon the possibility of working off the charge by cooperating with police. Harmon's arrangement to work as an informant was unsuccessful after ten months. Harmon never made a claim to his seized property and never requested a hearing, even after his involvement with the police dissolved. On March 24, 1994, the hearing examiner entered an order forfeiting the $804 and pagers under RCW 69.50.505.

Subsequently, Harmon was charged with possession of cocaine with intent to deliver. Prior to trial, Harmon moved to dismiss the charge on the ground that it violated double jeopardy. After hearing testimony and argument, the court made findings of fact and concluded that Harmon was not punished by the forfeiture proceeding because he was not a party to it and because it involved illegal drug proceeds. The court denied Harmon's motion to dismiss and then found him guilty on stipulated facts.

Harmon contends on appeal, as he did below, that his criminal conviction violated double jeopardy because he already had been punished by forfeiture of his personal property.

The state and federal double jeopardy clauses guarantee that a person shall not be twice put in jeopardy for the same offense. U.S. Const. amend V; Const. art. I, sec.9. Despite proper notice, Harmon never made a claim to the property or requested a hearing. Because he defaulted, he never became a party to the forfeiture proceeding and was not in jeopardy. As a result, his subsequent criminal conviction did not place him twice in jeopardy for the same offense. State v. Cole, 128 Wash. 2d 262, 282 n.15, 906 P.2d 925 (1995); State v. Anderson, 81 Wash. App. 636, 639-40, 915 P.2d 1138 (1996).

Harmon contends, however, that his absence from the forfeiture proceeding was not truly voluntary because he relied on an alleged assurance from Detective Mattson that he might get his property back if he cooperated with the police. Detective Mattson testified that he did not recall making such a promise. The trial court did not resolve the factual dispute, but found that Harmon's reason for his absence from the forfeiture proceeding was irrelevant to the double jeopardy issue. This Conclusion is consistent with Cole and Anderson. If Harmon was not a party to the forfeiture proceeding, his subsequent criminal conviction did not place him twice in jeopardy for the same offense.

Harmon also contends that the trial court erred in finding that the money and pagers were the proceeds of drug trafficking because the State did not prove that the seized property was traceable to illegal drug transactions. *fn1 Because Harmon never contested the forfeiture proceeding, he cannot now claim that his subsequent criminal prosecution is barred by double jeopardy. Cole, 128 Wash. 2d at 282 n.15.

The trial court did not err in concluding that Harmon was not placed twice in jeopardy and denying his motion to dismiss.

Affirme ...


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