State v. Esparza

• Decision Date: 20 February 2003
• Docket Number: No. 118, No. 744, No. 23, No. 582., No. 22
• Citation: 133 N.M. 772,70 P.3d 762,2003 NMCA 75
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Erasmo ESPARZA, Defendant-Appellant. State of New Mexico, Plaintiff-Appellee, v. Darren Booth, Defendant-Appellant. State of New Mexico, Plaintiff-Appellant, v. Evan L. Reed, Defendant-Appellee. State of New Mexico, ex rel. The Department of Public Safety, State Police Division, Plaintiff-Appellant, v. One 1978 Lincoln Continental Blue Bearing NM License CTJ353, VIN: 8689S907703, and $2,955.94 U.S. Currency, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

70 P.3d 762

133 N.M. 772

2003 NMCA 75

STATE of New Mexico, Plaintiff-Appellee, v. Erasmo ESPARZA, Defendant-Appellant.

State of New Mexico, Plaintiff-Appellee, v. Darren Booth, Defendant-Appellant.

State of New Mexico, Plaintiff-Appellant, v. Evan L. Reed, Defendant-Appellee.

State of New Mexico, ex rel. The Department of Public Safety, State Police Division, Plaintiff-Appellant, v. One 1978 Lincoln Continental Blue Bearing NM License CTJ353, VIN: 8689S907703, and $2,955.94 U.S. Currency, Defendant-Appellee.

Nos. 22,744, 23,118, 22,582.

Court of Appeals of New Mexico.

February 20, 2003.

Certiorari Denied May 20, , 2003.

Patricia A. Madrid, Attorney General, Jacqueline R. Medina, Assistant Attorney General, Santa Fe, NM, for Appellee in No. 22,744.

C. Barry Crutchfield, Templeman and Crutchfield, Lovington, NM, for Appellant in No. 22,744.

Patricia A. Madrid, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee in No. 23,118.

John B. Bigelow, Chief Public Defender, Theresa M. Duncan, Assistant Appellate Defender, Santa Fe, NM, for Appellant in No. 23,118.

Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellant in No. 22,582.

Jesse R. Cosby, P.C., Roswell, N.M., for Appellee in No. 22,582.

Certiorari Denied, No. 27,985, May 20, 2003 and No. 28,001, June 4, 2003.

OPINION

WECHSLER, Chief Judge.

{1} Defendants Esparza, Booth, and Reed were charged with violations of the Controlled Substances Act (the Act), NMSA 1978, §§ 30-31-1 to -41 (1972, as amended through 2002). Pursuant to Section 30-31-34 of the Act, the State elected to pursue both criminal charges and civil forfeiture against each Defendant. We consolidated these cases on appeal because they require us to analyze our Supreme Court's decision in State v. Nunez, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264, in order to determine the circumstances under which the double jeopardy clause of the New Mexico Constitution, N.M. Const. art. II, § 15, prohibits the State from assessing both civil and criminal penalties against a defendant for violations of the Act.

{2} Based upon our conclusion that the State complied with the requirement that the penalties be sought in a single, bifurcated proceeding, we affirm the forfeiture of Defendant Esparza's $33,123.00 and the criminal conviction of Defendant Booth. See Nunez, 2000-NMSC-013, ¶ 104,

129 N.M. 63,

2 P.3d 264. We remand to the district court for trial of the complaint for forfeiture of Defendant Reed's 1978 Lincoln Continental and $2955.94.

Background

State v. Esparza

{3} While executing a search warrant in September 2000, officers from the Hobbs Police Department seized $33,123.00, along with approximately 230 grams of cocaine from Defendant Esparza's property. In October 2000, the State filed a criminal information, charging Defendant Esparza with trafficking in a controlled substance and receiving stolen property. The information also contained a complaint for forfeiture of the currency that was seized during the search. An amended criminal information setting forth the same criminal charges and complaint for forfeiture was filed in March 2001.

{4} In June 2001, Defendant Esparza entered a plea of no contest to the charge of attempt to commit trafficking in a controlled substance. The plea agreement expressly stated: "[t]his agreement does not affect the forfeiture proceeding." (Emphasis in original). After accepting the plea, the district court indicated its intent to proceed with the forfeiture portion of the hearing. Defense counsel objected and moved to dismiss the complaint, arguing that principles of double jeopardy precluded the State from seeking forfeiture of the currency once the plea had been accepted. The district court denied the motion, then granted a continuance of the forfeiture hearing, which was ultimately held in July and August of 2001. In September 2001, the district court entered an order concluding that the forfeiture action had been brought in a "single bifurcated proceeding" as required by Nunez, 2000-NMSC-013, ¶ 104, 129 N.M. 63, 2 P.3d 264. In accordance with this conclusion, Defendant Esparza was ordered to forfeit the currency that was seized during the search.

{5} Defendant Esparza appeals from the forfeiture order, arguing that jeopardy attached upon acceptance of his plea and that the State was thereafter prohibited from pursuing forfeiture of the currency.

State v. Booth

{6} Defendant Booth was indicted for possession of marijuana with intent to distribute in March 2000. Three days after the indictment was filed, the State filed a motion to forfeit Defendant Booth's vehicle, a 1988 GMC pickup truck, under the same cause number as the criminal indictment. Accordingly, the forfeiture motion was directed to the same district judge who was assigned to the criminal prosecution. In April 2000, Defendant Booth appeared for arraignment on the criminal charges and entered a plea of not guilty. After posting bond and receiving permission to travel to Utah, Defendant Booth absconded.

{7} In August 2000, the State obtained a criminal summons, directing Defendant Booth to file a response to the motion to forfeit. However, the summons could not be served because the State was unable to locate Defendant Booth at his last known address in Utah. In January 2001, the State filed an affidavit for service by publication of the forfeiture motion. Publication was completed in New Mexico in February 2001. Defendant Booth was arrested on a bench warrant in May 2001, but never responded to the motion to forfeit. Following the arrest, the State filed and the district court granted a motion for default judgment on the forfeiture. Judgment was entered in June 2001.

{8} In September 2001, Defendant Booth filed a motion to dismiss with prejudice the criminal charges against him, arguing that the entry of default judgment in the forfeiture action precluded the State from thereafter proceeding with the criminal prosecution. At the hearing on the motion, the district court judge encouraged Defendant Booth to move to set aside the default judgment. Defendant Booth refused, electing to seek dismissal of the criminal charges on double jeopardy grounds. The district court, however, denied Defendant Booth's motion, stating that the requirement of a single, bifurcated proceeding was satisfied because the State had sought the penalties "together in one proceeding, close in time, and not in separate lawsuits or actions." In November 2001, Defendant Booth pleaded guilty to the charge of possession of marijuana with intent to distribute, but expressly reserved the right to appeal the district court's denial of his motion to dismiss. The judgment and sentence was entered in March 2002, more than nine months after entry of the default judgment.

{9} Defendant Booth appeals his criminal conviction on double jeopardy grounds, arguing that the district court's entry of default judgment on the forfeiture matter prohibited the State from thereafter pursuing his criminal prosecution. Specifically, he maintains that the procedures used by the State failed to satisfy the requirement of a single, bifurcated proceeding and therefore violated his double jeopardy rights.

DPS v. One 1978 Lincoln

{10} In October 2000, Defendant Reed was arrested in Chaves County and charged with possession of more than eight ounces of marijuana or, in the alternative, possession with intent to distribute. In November 2000, Albert Fugere, a special assistant attorney general acting as deputy chief counsel for DPS, filed a complaint for forfeiture of Defendant Reed's 1978 Lincoln Continental and $2955.94 in the district court for Santa Fe County. Later that month, the district attorney's office filed a criminal information setting forth the criminal charges against Defendant Reed in Chaves County. On January 2, 2001, Mr. Fugere filed a motion to consolidate the criminal prosecution and the forfeiture proceeding in order to insure compliance with the double jeopardy requirements set forth in Nunez. After determining that consolidation was "required to avoid double jeopardy issues," the district court in Santa Fe County issued an order granting the motion. The consolidation order was subsequently filed with the district court in Chaves County.

{11} Following several continuances, granted at the request of both defense counsel and the deputy district attorney, trial was set for July 17, 2001. Mr. Fugere never received notice of the trial setting and thus was not present on the day of the trial. Immediately before jury selection was to begin, Defendant Reed reached a plea agreement with the deputy district attorney. Defense counsel subsequently informed the district court of Mr. Fugere's absence and stated that Defendant Reed would be willing to plead guilty, contingent upon the district court's ruling that the civil case be dismissed due to DPS's inability to go forward with trial. The deputy district attorney, who was assigned to try only the criminal portion of the case, attempted to object to the dismissal of the forfeiture complaint on Mr. Fugere's behalf. However, the district court refused to hear the objection and granted the motion to dismiss based upon DPS's failure to prosecute. It then accepted Defendant Reed's plea to the criminal charge. The order of dismissal was filed on July 25, 2001, and DPS filed its notice of appeal on August 24, 2001. The judgment and sentence on the criminal charge was not filed until September 10, 2001.

{12} DPS appeals the district court's order dismissing the forfeiture complaint for failure to prosecute, arguing that DPS did not receive notice and an opportunity to be heard prior to the dismissal of its complaint. In addition, DPS argues that principles of double jeopardy, as interpreted by our Supreme Court in Nunez, did not require the dismissal of the forfeiture action following the...