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10/13/95 PEOPLE STATE ILLINOIS v. CHRISTOPHER D.

October 13, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CHRISTOPHER D. SMITH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 92-CF-1234. Honorable Melvin E. Dunn, Judge, Presiding.

Rehearing Denied November 22, 1995. Released for Publication November 16, 1995.

The Honorable Justice Hutchinson delivered the opinion of the court: Doyle and Rathje, JJ., concur.

The opinion of the court was delivered by: Hutchinson

JUSTICE HUTCHINSON delivered the opinion of the court:

Defendant, Christopher Smith, was charged with three drug offenses in July 1992. A nonjudicial forfeiture proceeding was also instituted by the State's Attorney against $106 in United States currency allegedly seized from defendant in connection with the charged offenses. The State's Attorney declared the funds forfeited on September 28, 1992. Defendant appeals from the trial court's denial of his motion to dismiss the criminal proceeding against him on the basis of former jeopardy (see 145 Ill. 2d R. 604(f)). We affirm and remand.

Defendant argues on appeal that the trial court violated the constitutional prohibition against double jeopardy when it denied his motion to dismiss and permitted the State to proceed with the criminal prosecution of defendant. In claiming there was a former jeopardy, defendant asserts that the State had already "punished" him by declaring his property forfeited pursuant to the nonjudicial forfeiture provisions of section 6 of the Drug Asset Forfeiture Procedure Act (Forfeiture Act) (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1676 (now 725 ILCS 150/6 (West 1994))) notwithstanding the State's rescission of its declaration of forfeiture for failure to notify defendant properly of the forfeiture proceeding. It is undisputed that defendant did not receive the statutory notice of the nonjudicial forfeiture proceeding.

The trial court concluded that the earlier forfeiture was void ab initio for lack of notice, and the court denied defendant's motion to dismiss the criminal prosecution. Under the facts presented, we similarly conclude that the purported "forfeiture" was void for lack of due process notice to defendant. We also conclude that there was no "punishment" upon which jeopardy could attach so as to prohibit the criminal prosecution of defendant.

Defendant was arrested on July 17, 1992, near 675 Wellington, Elgin, Illinois, for the alleged delivery of less than one gram of cocaine. He was indicted in July 1992 for unlawful delivery of a controlled substance (cocaine) (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(d) (now 720 ILCS 570/401(d) (West 1994))), unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(c) (now 720 ILCS 570/402(c)(West 1994))), and unlawful possession of cannabis (Ill. Rev. Stat. 1991, ch. 56 1/2 par. 704(b) (now 720 ILCS 550/4(b) (West 1994))).

According to the allegations of defendant's motion to dismiss thecriminal charges, the sum of $106 was seized from defendant at the time of arrest, along with a small amount of a substance alleged to be cannabis. The appended exhibits show that, on August 12, 1992, the Kane County State's Attorney issued a "Notice of Pending Forfeiture" of $106 to Christopher D. Smith, whose address was listed as 373 Jay Street, Elgin, Illinois. The notice contained a summary of the procedural right to file, within 45 days, a claim for the return of the property and a required bond or affidavit of indigence. The notice stated that the failure to file a claim would result in the forfeiture of any interest in the property to the State. However, at the time, defendant was incarcerated in the county jail, did not receive the notice, and failed to file a claim for the property.

According to defendant's motion and exhibits, on September 28, 1992, the State's Attorney issued a "Declaration of Forfeiture" of the funds stating that the 45-day statutory claim period had run, and since no verified claim had been filed with the State's Attorney's office, the $106 was declared forfeited. The appended proof of service listed defendant's address as 373 Jay Street, Elgin. The exhibits indicate that the funds were then distributed to various law enforcement agencies.

At the hearing on the motion to dismiss, the State stipulated to defendant's exhibits, and the parties agreed that defendant did not receive the notice of the pending forfeiture because he was confined to the county jail. Relying on recent developments in the law of double jeopardy, defendant argued that the declaration of civil forfeiture, even if rescinded, was nevertheless a penalty or punishment precluding further prosecution. (See, e.g., United States v. McCaslin (W.D. Wash. 1994), 863 F. Supp. 1299, 1306 (regardless of the order of the civil and the criminal proceedings, double jeopardy clause will bar second sanction if both first and second sanctions are deemed punishment).) The State maintained, among other things, that since there had been no adjudication that the property, in fact, belonged to defendant and since no claim was filed, defendant could argue neither that he was punished nor that he even had standing to make a claim of double jeopardy.

The trial court found that the forfeiture was void ab initio for lack of notice. The assistant State's Attorney represented that a rescission of the forfeiture would be entered. (A copy of the notice of rescission of forfeiture, dated December 6, 1994, has been supplied with the defendant's brief. Although not officially of record, the parties have partially relied on it in stating the facts of the case.)

The double jeopardy clauses of the United States and the Illinois Constitutions protect "against three distinct abuses: (1) a secondprosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense when sought in separate proceedings." (U.S. Const., amend. V; Ill. Const. 1970, art. I, ยง 10; People v. Towns (1995), 269 Ill. App. 3d 907, 910, 207 Ill. Dec. 279, 646 N.E.2d 1366, citing United States v. Halper (1989), 490 U.S. 435, 440, 104 L. Ed. 2d 487, 496, 109 S. Ct. 1892, 1897.) "The fundamental purpose of the double jeopardy clause is to protect an accused from being forced to defend against repeated attempts to exact one or more punishments for the same offense and applies with equal force whether the first prosecution results in a conviction or an acquittal." Towns, 269 Ill. App. 3d at 911, citing Abbate v. United States (1959), 359 U.S. 187, 198-99, 3 L. Ed. 2d 729, 736, 79 S. Ct. 666, 672-73.

The parties agree, at least in principle, that a civil forfeiture of a defendant's property, if deemed legally to be a punishment for the same conduct or offense which is also the subject of a separate criminal prosecution, precludes further punishment under the law of double jeopardy as it currently exists. See Towns, 269 Ill. App. 3d 907, 207 Ill. Dec. 279, 646 N.E.2d 1366 (completed civil forfeiture proceeding against property of defendant, who appeared in forfeiture proceeding as a claimant, constituted punishment for double jeopardy purposes and barred further criminal prosecution of defendant), relying on Department of Revenue v. Kurth Ranch (1994), 511 U.S. , 128 L. Ed. 2d 767, 114 S. Ct. 1937 (financial exaction in form of tax imposed only on persons arrested for drug offenses constituted separate punishment for double jeopardy purposes) and Austin v. United States (1993), 509 U.S. , 125 L. Ed. ...


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