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CUELLAR v. STATE

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Court of Appeals of Georgia.

CUELLAR v. The STATE.

No. A97A2186.

Decided: January 15, 1998

Stephen T. Maples, Decatur, J. Ralph McClelland III, Marietta, for appellant. J. Tom Morgan, District Attorney, Keith E. Adams, Priscilla N. Carroll, Assistant District Attorneys, for appellee.

Martin Cuellar was indicted for possession of cocaine with intent to distribute after police discovered drugs and $101,440 in cash in his residence.   The state also initiated an in rem forfeiture proceeding against the currency.   By consent order, Cuellar forfeited the currency to the state.   Cuellar then filed a plea of former jeopardy and motion to dismiss the indictment, contending that the judgment of forfeiture constituted punishment and invoked state and federal bars against multiple prosecutions.   He appeals from the denial of his plea in bar based upon double jeopardy.

Cuellar's argument that the forfeiture proceeding constituted a criminal punishment is without merit.   A forfeiture proceeding under OCGA § 16-13-49 is a civil sanction and does not constitute punishment for the purpose of double jeopardy analysis under the United States Constitution.  Murphy v. State, 267 Ga. 120, 475 S.E.2d 907 (1996).   Nor does such a proceeding give rise to a valid double jeopardy defense under state constitutional law.   See Manley v. State, 224 Ga.App. 661, 662(1), 482 S.E.2d 416 (1997).

In addition, Cuellar's argument that the forfeiture proceeding constituted punishment because it was in personam rather than in rem is without merit.   First, the proceeding here was clearly in rem.   The complaint was styled, “STATE OF GEORGIA, Plaintiff, v. ONE HUNDRED ONE THOUSAND[,] FOUR HUNDRED FORTY DOLLARS ($101,440.00) IN U.S. CURRENCY;  Defendant, in rem.”   The action was not brought against Cuellar personally.   Second, an action brought under Georgia's forfeiture statute, even an in personam proceeding, is not considered a criminal punishment.  Rojas v. State, 226 Ga.App. 688, 689, 487 S.E.2d 455 (1997).   Inasmuch as Cuellar has not been subjected to multiple punishments for the same offense, the trial court correctly denied his plea of former jeopardy.   See Lundy v. State of Ga., 226 Ga.App. 197(2), 482 S.E.2d 516 (1997).

Judgment affirmed.

JOHNSON, Judge.

POPE, P.J., and BLACKBURN, J., concur.

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