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06/26/96 PEOPLE STATE ILLINOIS v. GILBERTO

June 26, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GILBERTO PORTUGUEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 94--CF--716. Honorable Amy Bertani, Judge Presiding.

Released for Publication August 1, 1996.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. Justice McCUSKEY delivered the opinion of the court: Holdridge, P.j., and Slater, J., concur.

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

The defendant, Gilberto Portuguez, was charged with unlawful possession of more than 900 grams of a substance containing cocaine with intent to deliver (720 ILCS 570/401(a)(2)(D) (West 1994)). He filed a motion to dismiss the charge based upon the forfeiture of a 1990 Ford Taurus and $1,072. The trial court denied the motion, and the defendant appeals.

Two issues are raised in this appeal: (1) whether this court has jurisdiction over the appeal; and (2) whether the defendant's motion to dismiss should have been granted based upon the double jeopardy clause of the United States and Illinois constitutions. U.S. Const., amend. V; Ill. Const. 1970, art. I, ยง 10.

Following our review of the record, we determine we have jurisdiction over this appeal because the notice of appeal was timely filed. Also, we find the trial court properly denied the defendant's motion to dismiss because the defendant failed to file a claim in the civil forfeiture proceedings. As a result, we affirm.

FACTS

The defendant was charged by indictment on March 2, 1994. On May 26, 1995, he filed a motion to dismiss the charge. The defendant stated that he received a notice the forfeiture had been completed. He claimed the forfeiture was punishment and the double jeopardy clause prohibited a second punishment for the same offense.

On June 21, 1995, the defendant filed a memorandum in support of his motion. The defendant acknowledged that he did not file a claim in the civil forfeiture proceeding. The defendant asserted that the car was titled in his name and filed an affidavit stating the money belonged to him. Following a hearing, the trial court denied the defendant's motion.

In an order dated July 21, 1995, the trial court found the defendant was in possession of the $1,072 at the time of his drug arrest. Also, the defendant arrived at the location of his arrest in a 1990 Ford Taurus which was titled in his name. The money and the car were seized by the police. Later, the property was administratively forfeited by the trial court. The court concluded that the double jeopardy clause did not apply in this case because the defendant failed to file a claim during the forfeiture proceedings.

The defendant filed a notice of appeal pursuant to Supreme Court Rule 604(f) (145 Ill. 2d R. 604(f)).

[The following material in nonpublishable under Supreme Court Rule 23].

[The preceding material is nonpublishable under Supreme ...


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