State v. Stubblefield, S-95-396

• Decision Date: 23 February 1996
• Docket Number: No. S-95-396,S-95-396
• Citation: 543 N.W.2d 743,249 Neb. 436
• Parties: STATE of Nebraska, Appellee, v. Mickey M. STUBBLEFIELD, Appellant.
• Court: Nebraska Supreme Court

Page 743

543 N.W.2d 743

249 Neb. 436

STATE of Nebraska, Appellee, v. Mickey M. STUBBLEFIELD, Appellant.

No. S-95-396.

Supreme Court of Nebraska.

Feb. 23, 1996.

Syllabus by the Court

1. Judgments: Appeal and Error. Regarding questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the trial court.

2. Double Jeopardy. The Double Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

3. Double Jeopardy: Statutes: Proof. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

4. Double Jeopardy: Statutes: Proof. In both the multiple punishment and multiple prosecution contexts, the double jeopardy bar applies if the two offenses for which a defendant is punished or tried cannot survive the Blockburger test.

5. Statutes: Controlled Substances: Intent: Proof. A violation of Neb.Rev.Stat. § 28-416 (Reissue 1989) requires proof of intent to manufacture, distribute, deliver, or dispense a controlled substance, but a violation of the marijuana and controlled substances tax statutes, Neb.Rev.Stat. §§ 77-4301 to 77-4316 (Reissue 1990 & Cum.Supp.1992), does not require proof of the same element.

6. Statutes: Controlled Substances: Taxes: Proof. A violation of the marijuana and controlled substances tax statutes, Neb.Rev.Stat. §§ 77-4301 to 77-4316 (Reissue 1990 & Cum.Supp.1992), requires proof that the excise tax has not been paid and that the dealer possessed at least 6 or more ounces of marijuana, but a violation of Neb.Rev.Stat. § 28-416 (Reissue 1989) does not require proof of the same element.

7. Double Jeopardy: Statutes: Controlled Substances: Proof. Neb.Rev.Stat. § 28-416 (Reissue 1989) and the marijuana and controlled substances tax statutes, Neb.Rev.Stat. §§ 77-4301 to 77-4316 (Reissue 1990 & Cum.Supp.1992), do not constitute the same offense, because each requires proof of an element the other does not, and thus, the Double Jeopardy Clause does not prohibit prosecution and/or punishment for each of the two offenses.

Appeal from the District Court for Lancaster County; Donald E. Endacott, Judge. Affirmed.

Dennis R. Keefe, Lancaster County Public Defender, and Scott P. Helvie, North Platte, for appellant.

Don Stenberg, Attorney General, and Joseph P. Loudon, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

CONNOLLY, Justice.

We have granted the State's petition to bypass the review of the Nebraska Court of Appeals pursuant to Neb.Rev.Stat. § 24-1106 (Cum.Supp.1994). We are asked to determine whether prosecuting Mickey M. Stubblefield for possession of marijuana with intent to deliver (Neb.Rev.Stat. § 28-416 (Reissue 1989)), after a tax for the same marijuana has been assessed against him pursuant to Nebraska's marijuana and controlled substances tax statutes, Neb.Rev.Stat. §§ 77-4301 to 77-4316 (Reissue 1990 & Cum.Supp.1992), violates the constitutional prohibition against double jeopardy.

Stubblefield appeals from an order of the district court for Lancaster County, overruling his plea in bar to criminal possession of marijuana with intent to deliver charges. The district court found that the Double Jeopardy Clauses of the U.S. and Nebraska Constitutions are not applicable because the drug tax assessed against Stubblefield pursuant to the drug tax statutes did not constitute punishment for purposes of double jeopardy.

We affirm the district court's finding that double jeopardy does not bar the criminal prosecution of Stubblefield for possession with intent to deliver, but we reach this conclusion on the basis of different reasoning.

We find that the criminal possession with intent to deliver charge does not constitute the same offense as the tax assessment under the drug tax statutes. Thus, we conclude that Stubblefield's plea in bar to the criminal prosecution on the grounds that it would constitute a second prosecution and/or multiple punishment for the same offense is without merit. We therefore affirm.

ASSIGNMENTS OF ERROR

Stubblefield alleges the district court erred in not finding that the criminal possession of marijuana with intent to deliver charge was barred by the Double Jeopardy Clauses of the U.S. and Nebraska Constitutions, because that charge, in addition to the tax assessment, subjects him to: (1) multiple punishment and/or (2) successive criminal prosecution for the same offense.

The State contends that Stubblefield's first assignment of error is premature because he has not paid any of the drug tax and, thus, has not been punished for purposes of double jeopardy. Since we are affirming the district court's judgment for other reasons, we need not consider whether Stubblefield's multiple punishment claim is ripe.

SCOPE OF REVIEW

Regarding questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the trial court. State v. Lynch, 248 Neb. 234, 533 N.W.2d 905 (1995).

BACKGROUND

On March 19, 1993, Stubblefield was stopped by officers from the Lincoln Police Department while operating a motor vehicle in Lincoln, Nebraska. The officers discovered a sealed package in Stubblefield's car which contained 320 ounces (20 pounds) of marijuana. As a result, Stubblefield was arrested for unlawful possession of marijuana with intent to deliver. No drug tax stamp was affixed to the marijuana.

Pursuant to the drug tax statutes, officers from the police department submitted to the Tax Commissioner a Nebraska drug tax assessment information sheet informing the commissioner of the seizure of 320 ounces of marijuana from Stubblefield's vehicle. The marijuana was taxed at a rate of $100 per ounce for a total tax of $32,000. In addition, the commissioner assessed a 100-percent penalty for nonpayment of the tax in the amount of $32,000, and interest in the amount of $257.75. The assessment of the tax, penalty, and interest created a tax lien in favor of the State against property in possession or owned by Stubblefield in the amount of $64,257.75. Neb.Rev.Stat. §§ 77-3901 to 77-3909 (Reissue 1990). The commissioner filed a notice of state tax lien with the Lancaster County register of deeds and a notice of levy in the district court for Lancaster County.

After the Tax Commissioner initiated tax collection efforts under the Uniform State Tax Lien Registration and Enforcement Act, the State, through the Lancaster County Attorney, initiated criminal prosecution against Stubblefield for the felony offense of possession of marijuana with intent to deliver. The marijuana, which is the subject matter of the current criminal prosecution against Stubblefield, was the same marijuana which was the subject matter of the tax assessment by the Tax Commissioner.

Stubblefield filed a plea in bar alleging that the possession with intent to deliver charge was barred by the Double Jeopardy Clauses of the U.S. and Nebraska Constitutions because he had already been prosecuted and punished for the same offense by having the tax, penalty, and interest assessed against him. The district court overruled Stubblefield's plea in bar, and he was found guilty by a jury.

OVERVIEW OF NEBRASKA'S MARIJUANA AND CONTROLLED SUBSTANCES TAX STATUTES

Preliminarily, we believe it helpful to give a description of Nebraska's marijuana and controlled substances tax statutes. The statutes Section 77-4302 prohibits a dealer from possessing marijuana unless the tax has been paid as evidenced by an official stamp or label affixed to the marijuana. Official stamps or labels are to be purchased from the Department of Revenue. § 77-4304(1). Each stamp is valid for 6 months after issuance. § 77-4304(2). In applying for a tax stamp, a dealer shall not be required to give his or her name, address, Social Security number, or other identifying information. § 77-4304. See, also, State v. Garza, 242 Neb. 573, 496 N.W.2d 448 (1993) (statutes as interpreted do not violate prohibition against self-incrimination).

were enacted as 1990 Neb. Laws, L.B. 260, and are now codified at §§ 77-4301 to 77-4316. They impose a tax on marijuana at a rate of $100 on each ounce or portion of an ounce in the dealer's possession. § 77-4303(1)(a). The tax imposed by § 77-4303 shall be due and payable immediately upon acquisition or possession of marijuana in this state by a dealer. § 77-4305. A "dealer" is defined in part as one who "acquires or possesses six or more ounces of marijuana." § 77-4301(2). Thus, one must possess at least 6 ounces of marijuana to be subject to the tax.

Based on personal knowledge or information available to the Tax Commissioner, the commissioner must assess the tax and penalty upon any dealer who has not paid the tax when due. § 77-4310. Any dealer violating the drug tax statutes is subject to a penalty of 100 percent of the tax in addition to the tax imposed by § 77-4303. § 77-4309 paragraph 1. The penalty shall be collected as part of the tax. Id. If the amount of the deficiency is not paid, the deficiency shall accrue interest for the period from the date the tax was due until the date such deficiency is paid. § 77-4312(8).

If payment is not immediately made after notifying the dealer of the tax, penalty, and interest due and demanding payment, the Tax Commissioner shall collect the tax and penalties by any method prescribed in the Uniform State Tax Lien Registration and Enforcement Act. § 77-4310(3). However, the dealer may petition for a hearing regarding the assessment pursuant to the Administrative...