People v. Stewart

• Decision Date: 20 May 1976
• Docket Number: No. 75--139,75--139
• Citation: 553 P.2d 74,38 Colo.App. 6
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cal Leonard STEWART, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 74

553 P.2d 74

38 Colo.App. 6

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cal Leonard STEWART, Defendant-Appellant.

No. 75--139.

Colorado Court of Appeals, Div. II.

May 20, 1976.

Rehearing Denied June 10, 1976.

Certiorari Granted Aug. 3, 1976.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Robert C. Lehnert, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, Dorian E. Welch, Deputy Public Defender, Denver, for defendant-appellant.

ENOCH, Judge.

Defendant Cal Leonard Stewart entered a plea of guilty to second degree forgery and was sentenced to an indeterminate term not to exceed ten years. Subsequent to this conviction, defendant filed a Pro se motion for credit for presentence jail time, and the People filed a motion entitled 'restitution.' The People's motion alleged that $1,172 seized from defendant at the time of his arrest had been obtained by his cashing forged checks, and it requested distribution of the money to persons damaged by defendant's illegal activity. The court denied defendant's motion, and granted the People's motion. Defendant appeals from both rulings, and we affirm.

Citing the general rule that a criminal court may only order restitution pursuant to a statutory provision, defendant alleges that the criminal court was without jurisdiction to entertain the motion labeled 'restitution.' Additionally he argues that even if jurisdiction existed, the court could only order restitution of $460, the amount of the checks which were at issue in the criminal case. We disagree with these propositions.

The funds here at issue were seized from defendant at the time of his arrest, and were in the possession of the arresting authorities at the conclusion of the criminal case. Therefore those funds were In custodia legis. People v. Superior Court, 28 Cal.App.3d 600, 104 Cal.Rptr. 876; See also Maley v. Heichemer, 81 Colo. 379, 256 P. 4. Hence, once the state had alleged that the property was the fruit of an illegal activity, the criminal court had jurisdiction to hold a hearing to determine whether the property should be returned to defendant, that power to hold such a hearing being within the scope of the inherent power of the court to control and prevent the abuse of its processes. People v. Superior Court, supra.

Under such circumstances, if the property seized from a defendant is proven to be the fruit of an illegal activity, the court cannot sanction the use of the legal system to return the property to the wrongdoer. As was stated in Carr v. Hoy, 2 N.Y.2d 185, 158 N.Y.S.2d 572, 139 N.E.2d 531:

'The money plaintiff sues for was the fruit of an admitted crime and 'no court should be required to serve as paymaster of the wages of crime.'"'

Where there is a dispute as to whether the money seized from a defendant is the fruit of an illegal activity, due process requires that the criminal court hold a hearing in which defendant is allowed to cross-examine witnesses and to present evidence. State v. Sherry, 46 N.J. 172, 215 A.2d 536. In the instant case, the district court held such a hearing and defendant was afforded full...