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State v. Fleming

June 11, 1998

STATE OF MISSISSIPPI
v.
EDWARD H. FLEMING A/K/A EDWARD HARRY FLEMING



The opinion of the court was delivered by: Banks, Justice

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.

¶1. 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.

¶2. 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.

¶3. 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.

¶4. 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 ...


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