People v. Hargrave , 2007 Colo. App. LEXIS 1749 ( 2007 )

Judge MÁRQUEZ

dissenting.

Defendant in this case was sentenced in April 2005 and did not file his motion for return of property until several months following sentencing. In my view, the trial court lost jurisdiction to rule on issues regarding the return of property upon imposition of a valid sentence. Therefore, I respectfully dissent.

The earliest case on the return of seized property appears to be People v. Angerstein, 194 Colo. 376, 572 P.2d 479 (1977). There, motions regarding the seized property were not filed until over a year following a plea of guilty. Whether the defendant had been sentenced before the motions were filed is not indicated in the opinion. The supreme court remanded the cause to the trial court with directions to hold an evidentiary hearing regarding the property.

In 1981, a division of this court decided People v. Buggs, 631 P.2d 1200 (Colo.App.1981), where the defendant filed a motion, after his conviction, seeking return of certain property. Although the division ordered return of the property, the opinion does not state whether the defendant’s motion was filed before or after sentencing. The following year, another division of this court decided People v. Rautenkranz, 641 P.2d 317, 318 (Colo.App.1982), in which the defendant pleaded guilty. The opinion states: “Thereafter, defendant filed a verified motion for return” of property. Citing Angerstein, Buggs, and United States v. Wilson, 540 F.2d 1100 (D.C.Cir.1976), the division remanded for a hearing to determine whether the items seized should be returned. When sentencing occurred is not mentioned.

Unlike in the foregoing eases, in People v. Ward, 685 P.2d 238 (Colo.App.1984), cited by the majority, the defendant filed a motion for return of property while his case was pending, and the prosecution filed a motion for forfeiture of the seized money. A hearing on the motions was held following the defendant’s plea of guilty. The issue on appeal was whether there was a sufficient nexus between the seized money and the defendant’s drug dealing activities.

However, since People v. Rautenkranz, supra, Colorado appellate courts have held that the trial court does not have jurisdiction after sentence is imposed. See People v. Campbell, 738 P.2d 1179 (Colo.1987); People v. Galves, 955 P.2d 582 (Colo.App.1997); People v. Wiedemer, 692 P.2d 327 (Colo.App.1984).

In Wiedemer, supra, the defendant was sentenced after a jury trial, the conviction was affirmed on appeal, and the mandate issued before the defendant filed a motion for return of property. When the trial court denied his motion, defendant filed a Crim. P. 35 motion and a second motion for return of property. Both were denied, and the trial court’s orders were affirmed on appeal. The division held that a “trial court loses jurisdiction upon imposition of a valid sentence except under the circumstances specified in Crim. P. 35.” People v. Wiedemer, supra, 692 P.2d at 329.

In Campbell, supra, 738 P.2d at 1180, the supreme court quoted the language from Wiedemer set forth above and held that the “trial court ... lost jurisdiction to reconsider its denial of a motion for new trial when it imposed a valid sentence upon the defendant.”

After Campbell was announced, the division in Galves addressed whether the trial court erred in refusing to consider the defendant’s motion for return of personal property seized as a result of his arrest. Although the defendant was found not guilty by reason of insanity, the division held that in a criminal case, the trial court loses jurisdiction of the matter upon the entry of final judgment, which includes, among other things, entry of a judgment of conviction and imposition of sentence. Citing Campbell, supra, the Galves division also held that following the entry of a final judgment, the court retains subject matter jurisdiction only over matters that may be raised pursuant to Crim. P. 35. People v. Galves, supra, 955 P.2d at 583.

While the majority here faults the division’s observation in People v. Wiedemer that in prior cases “it appeared” the motion for return of seized property was filed prior to imposition of sentence, the majority acknowledges that at a minimum the earlier cases did not make clear whether the decision to address the return of property was made before or after sentencing. I also note that the earlier cases do not address the issue of jurisdiction or even indicate whether the issue was raised.

Crim. P. 41(e) provides that a person aggrieved by an unlawful search and seizure may move for the “return of the property and to suppress for use as evidence anything so obtained” on certain grounds. The rule, however, does not state when the motion should be filed. Because return of property is included with suppression issues, the implication is that such motions will be filed before or during trial.

As for the one federal court decision cited by Colorado appellate courts on this issue, United States v. Wilson, supra, the defendant there pleaded not guilty and four days later filed his motion for return of seized property. Thus, the motion was filed well before sentencing. Moreover, in the federal courts, postconviction filings for the return of property, if made after the termination of criminal proceedings, are treated as civil equitable actions. Thompson v. Covington, 47 F.3d 974, 975 (8th Cir.1995); Rufu v. United States, 20 F.3d 63, 65 (2d Cir.1994).

Thus, whatever the merits of the position of the federal courts, in my view, the trial court does not have jurisdiction to address the return of seized property if the motion for return is filed after sentence has been imposed. The defendant is not left without a remedy because the option of filing a civil suit is available. See People v. Rautenkranz, supra, 641 P.2d at 318 (civil action may be proper remedy for seeking return of property).