State v. Rice

STATE of Arkansas v. Leon Jackson RICE

CR 97-301                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 23, 1997


1.   Appeal & error -- State allowed to appeal -- when supreme court accepts
     State appeals. -- Arkansas Rule of Appellate Procedure--Criminal
     3(b) allows the State to appeal following a felony or
     misdemeanor prosecution; additionally, under Ark. R. App. P.--
     Crim. 3(c), the attorney general must inspect the record and
     be satisfied that error has prejudiced the State and that the
     correct and uniform administration of the criminal law
     requires appellate review; pursuant to the rule, the supreme
     court accepts appeals by the State when a holding will set a
     precedent that would be important to the correct and uniform
     administration of justice.

2.   Appeal & error -- State's appeal from dismissal of revocation petition
     dismissed. -- The State may not appeal from the dismissal of a
     petition to revoke a felon's probation under Ark. R. App. P.--
     Crim 3; the supreme court dismissed the State's appeal from
     the dismissal of the revocation petition.

3.   Appeal & error -- State's appeal from dismissal of felony charge implicated
     correct and uniform administration of criminal law -- review required. --
     The supreme court has accepted State's appeals generally
     involving double jeopardy issues; the court determined that
     the State's appeal from the dismissal of appellee's felony
     charge implicated and fostered the correct and uniform
     administration of the criminal law by proceeding with a double
     jeopardy analysis of the application of the controlled-
     substances forfeiture statute, Ark. Code Ann.  5-64-505
     (Repl. 1993), in this case.

4.   Constitutional law -- Double Jeopardy Clause -- forfeiture action was civil
     in nature and did not constitute punishment -- trial court erred in
     finding that forfeiture barred subsequent prosecution on possession charge.
     -- The supreme court concluded that there was little evidence
     suggesting that the forfeiture proceeding against appellee's
     vehicle was so punitive in form and effect so as to render the
     proceeding criminal; moreover, Ark. Code Ann.  5-64-505, as
     applied, was not used as a criminal penalty; the State brought
     the action under the in rem portion of the statute, and the
     action was brought against appellee's vehicle; in sum, the
     forfeiture action was civil in nature and did not constitute
     "punishment" for purposes of double jeopardy; the supreme
     court held that the trial court erred in finding that the
     forfeiture barred appellee's subsequent prosecution on a
     possession charge.

5.   Constitutional law -- Double Jeopardy Clause -- trial court's dismissal on
     double jeopardy grounds was not acquittal -- order dismissing possession
     charge reversed and remanded. -- Because the supreme court
     concluded that the trial court erred in dismissing the felony
     charge, it addressed appellee's contention that the Double
     Jeopardy Clause barred a remand of the case; the trial court's
     dismissal of the charge on double jeopardy grounds was not an
     acquittal on that charge; the supreme court has previously
     reversed and remanded where the trial court erroneously
     dismissed charges on double jeopardy grounds; accordingly, it
     reversed the trial court's order dismissing the charge of
     possession of a controlled substance with intent to distribute
     and remanded for further proceedings.


     Appeal from Pulaski Circuit Court, First Division; Marion
Humphrey, Judge; dismissed in part; reversed and remanded in part.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellant.
     William R. Simpson, Jr., Public Defender, by:  Deborah R.
Sallings, Deputy Public Defender, for appellee.

     Annabelle Clinton Imber, Justice.
     The State has appealed the trial court's dismissal, on double
jeopardy grounds, of a felony charge and a revocation petition.  We
dismiss the appeal involving the revocation petition, and reverse
and remand finding that the trial court erroneously dismissed the
felony charge.  
     On July 16, 1995, Leon Jackson Rice was pulled over during a
traffic stop.  The investigating officer arrested Rice for
possession of a controlled substance.  On August 31, 1995, the
State filed a civil in rem forfeiture action against Rice's seized
vehicle pursuant to Ark. Code Ann.  5-64-505(a)(6) (Repl. 1993). 
The case was filed in Pulaski County circuit court and styled
"State of Arkansas, Petitioner, vs. One 1985 Chevrolet Caprice VIN
#IN69JAJ111615, Defendant, Leon Rice, Potential Claimant."  On
January 26, 1996, the State obtained a default judgment in the
forfeiture action.
     On September 26, 1995, the State filed an information against
Rice charging him with possession of a controlled substance with
intent to deliver.  On November 28, 1995, the State filed an
amended petition for revocation alleging that Rice violated the
terms of his prior probationary sentence due to his drug
possession.
     Rice filed a motion to dismiss the charge and the revocation
petition on double jeopardy grounds, arguing that the civil
forfeiture of his vehicle was punishment barring further criminal
prosecution.  The trial court granted the motion to dismiss, and
the State now appeals the order, arguing that the trial court
erroneously determined that double jeopardy barred the prosecution
and revocation.

1.  Appellate Jurisdiction -- Appeal from Dismissal of Petition 
for Revocation.

     Rice essentially concedes the merits of the case, but instead
argues that this court lacks jurisdiction to entertain the State's
appeal.  Arkansas Rule of Appellate Procedure--Criminal 3(b)
(formerly codified as Ark. R. Crim. P. 36.10(b)) allows the State
to appeal following a felony or misdemeanor prosecution. 
Additionally, the attorney general must inspect the record and be
satisfied that error has prejudiced the State, and that the correct
and uniform administration of the criminal law requires our review. 
Ark. R. App. P.--Crim. 3(c).  Pursuant to the rule, this court
accepts appeals by the State "when our holding will set a precedent
that would be important to the correct and uniform administration
of justice."  State v. Townsend, 314 Ark. 427, 863 S.W.2d 288
(1993).
     Rice independently asserts that even if the State may appeal
from the dismissal of the felony charge, it may not appeal the
dismissal of the revocation petition given that it is not an appeal
"following either a misdemeanor or felony prosecution" as required
by Ark. R. App. P.--Crim. 3(b).  Rice cites to State v. Hurst, 296
Ark. 132, 752 S.W.2d 749 (1988), where this court plainly held that
the State may not appeal from the dismissal of a petition to revoke
a felon's probation under Rule 36.10.   We agree that Hurst is
controlling and dismiss the State's appeal from the dismissal of
the revocation petition.
  2.  Appellate Jurisdiction -- Appeal from Dismissal of Possession
of Controlled Substance Charge.
     We have accepted State's appeals generally involving double
jeopardy issues.  See, e.g., State v. Thornton, 306 Ark. 402, 815 S.W.2d 386 (1991); State v. McMullen, 302 Ark. 252, 789 S.W.2d 715
(1990); compare with State v. Banks, 322 Ark. 344, 909 S.W.2d 634
(1995) (dismissing State's appeal where federal statute at issue
declared unconstitutional).  We find that the State's appeal
involving the dismissal of the felony charge implicates the correct
and uniform administration of the criminal law and requires our
review.  It is true that subsequent to the trial court's ruling
from the bench (but before the entry of the actual order of
dismissal nunc pro tunc), United States v. Ursery, 116 S. Ct. 2135
(1996) and Sims v. State, 326 Ark. 296, 930 S.W.2d 381 (1996) were
handed down and definitively resolved whether a civil in rem
forfeiture constitutes punishment for purposes of double jeopardy. 
However, despite the fact that we have established a precedent,
reaching the merits of this case will result in a uniform
application of the criminal law.  See State v. Dennis, 318 Ark. 80,
883 S.W.2d 811 (1994) (acceptance of State's appeal despite
existing precedent in order to establish uniform application of
sentencing law).  Moreover, in Sims v. State, 326 Ark. 296, 930 S.W.2d 381 (1996), we could not say that the General Assembly
clearly indicated that forfeiture under Ark. Code Ann.  5-64-505
was always civil in nature.  Because of this, the Sims court had to
"examine the manner in which the statute was applied" to the facts
of the particular case.  Id.  Therefore, while Sims is authority
for finding that civil forfeiture under Ark. Code Ann.  5-64-505
is not punishment for double jeopardy purposes, the analysis also
hinges on how the statute was applied in the particular case. 
Thus, acceptance of this appeal fosters the correct and uniform
application of the law by proceeding with an analysis of Ark. Code
Ann.  5-64-505 as applied in this case.   
           3.  Section 5-64-505 Forfeiture Action -- 
Double Jeopardy Analysis.

     In Sims v. State, 326 Ark. 296, 930 S.W.2d 381 (1996), we
considered whether the appellant's prior conviction for possession
of controlled substances with intent to deliver barred a subsequent
 5-64-505 forfeiture action brought against the $8,603.19 in the
possession of the appellant at the time of his arrest.  Relying on
a two-part analytical framework reaffirmed by the United States
Supreme Court in United States v. Ursery, 116 S. Ct. 2135 (1996),
the Sims court determined that the forfeiture action was not
"punishment" under the Double Jeopardy Clause.
     We first examined whether the General Assembly intended for
proceedings under Ark. Code Ann.  5-64-505 to be criminal or
civil.  While the statute was generally remedial, some subsections
had the "markings" of a criminal sanction.  Thus, "we [could] not
say that the General Assembly has clearly indicated that all parts
of the statute provide civil, and not criminal, sanctions."  Sims
v. State, supra.  (emphasis in original).  As a result of this
finding, the Sims court had to examine how the statute was applied
in the particular case.  The lawsuit was filed under the in rem
provisions of the statute, and was filed against the appellant's
money.  Additionally, the rules of civil procedure governed the
burden of proof, which was on the claimant.  The statute as applied
thus had "none of the ma[r]kings of punishment" and was applied as
a civil sanction.
     Next, the Sims court examined whether there was the "clearest
proof" required to show that the forfeiture proceedings under Ark.
Code Ann.  5-64-505 were so punitive in form and effect so as to
render them criminal.  The court found no such evidence:
Forfeiture proceedings against property used to commit
drug violations encourages owners to take care of
property and ensures that it is not used in the drug
trade.  Forfeiture of property prevents illegal uses by
imposing an economic penalty, thereby rendering illegal
behavior unprofitable.  Finally, to the extent that the
statute applies to the proceeds of illegal drug activity,
it serves the additional nonpunitive goal of ensuring
that persons do not profit from their illegal acts.  See
United States v. Ursery, 116 S. Ct.  at 2149.
Sims v. State, supra.  The Sims court concluded its analysis and
held that the in rem civil forfeiture was not punishment for
purposes of the Double Jeopardy Clause.
     In the present case, as in Sims, there is little evidence
suggesting that the forfeiture proceeding against Rice's vehicle
was so punitive in form and effect so as to render the proceeding
criminal.  Moreover, the statute, as applied, was not used as a
criminal penalty.  The State brought the action under the in rem
portion of the statute, and the action was brought against Rice's
vehicle.  In sum, the forfeiture action was civil in nature and did
not constitute "punishment" for purposes of double jeopardy. 
Therefore, the trial court erred in concluding that the forfeiture
barred Rice's subsequent prosecution on the possession charge.
     Because we conclude that the trial court erred in dismissing
the felony charge, we address Rice's contention that the Double
Jeopardy Clause bars a remand of the case.  Clearly, the trial
court's dismissal of the charge on double jeopardy grounds was not
an acquittal on that charge.  See United States v. Scott, 437 U.S. 82 (1978).  Moreover, this court has previously reversed and
remanded where the trial court erroneously dismissed charges on
double jeopardy grounds.  See State v. McMullen, supra. 
Accordingly, we reverse the trial court's order dismissing the
charge of possession of a controlled substance with intent to
distribute and remand for further proceedings consistent with this
opinion.
     Dismissed in part; reversed and remanded in part.