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Dorsey v. State8/21/2001
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Thus, the State of Missouri could not prosecute a defendant for the robbery of one of six victims in the same robbery after a jury in another case had determined that the defendant did not rob one of the other victims.
Dorsey urges us to apply collateral estoppel in this case even though the first action to resolve the motion to suppress was not the prosecution of a crime for which he could punished, but instead a civil forfeiture action. This we cannot do. A civil forfeiture proceeding is a civil action and does not seek to impose the punishment necessary to activate the protection against double jeopardy. Murphy v. State, 267 Ga. 120, 121 (475 SE2d 907) (1996); Rojas v. State, 226 Ga. App. 688, 689 (487 SE2d 455) (1997); Cuellar v. State, 230 Ga. App. 203 (496 SE2d 282) (1998). If double jeopardy does not arise from a civil forfeiture action in general, then resolution of an issue in the civil forfeiture action should not result in the application of double jeopardy through the collateral estoppel doctrine. See Robertson v. Texas, 2001 Tex. App. LEXIS 1650, Case No. 05-99-00138-CR, decided March 13, 2001 (collateral estoppel did not apply to motion to suppress filed in prosecution for DUI based on finding of no probable cause to arrest in driver's license suspension hearing). Simply put, double jeopardy does not apply because Dorsey was not subjected to multiple criminal prosecutions. The trial court properly denied Dorsey's plea of former jeopardy.
(b) Because this case involves a ruling on a motion to suppress in a civil forfeiture proceeding, as opposed to a probation revocation proceeding, we need not address any alleged inconsistencies in our decisions in Harvill v. State, 190 Ga. App. 353 (378 SE2d 917) (1989) and Talley v. State, 200 Ga. App. 442 (408 SE2d 463) (1996). See Quinn v. State, 221 Ga. App. 399, 400-401 (2) (471 SE2d 337) (1996).
2. During oral argument of this appeal, appellant asserted for the first time that this Court should apply the civil concept of collateral estoppel regardless of whether jeopardy attached in the civil forfeiture proceeding. Appellant did not raise this argument in the trial court or in its written submissions to this Court. "We do not consider issues raised for the first time on appeal, because the trial court has not had opportunity to consider them. [Cit.]" Padilla v. Melendez, 228 Ga. App. 460, 461 (1) (491 SE2d 905) (1997). Moreover, assertions of error not timely raised on appeal are generally waived. Hittson v. State, 264 Ga. 682, 690 (15) (449 SE2d 586) (1994), overruled on other grounds, Nance v. State, 272 Ga. 217, 220 (2) n.2 (526 SE2d 560) (2000). Finally,
the civil doctrines of "res judicata" and "collateral estoppel" have no real application to a criminal case. The proper, analogous bar in a criminal prosecution is under the principle of "double jeopardy," which is clearly not applicable under the facts of this case. Carter v. State, 231 Ga. App. 42, 43 n.2 (497 SE2d 812) (1998).
Judgment affirmed. Smith, P. J., and Phipps, J., concur.
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