State v. Woodley, 108,084.
| Decision Date | 30 August 2013 |
| Docket Number | No. 108,084.,108,084. |
| Citation | 308 P.3d 30 |
| Parties | STATE of Kansas, Appellee, v. Sarah N. WOODLEY, Appellee. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Sedgwick District Court; Phillip B. Journey, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Matt J, Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, S.J.
Sarah N. Woodley appeals from the district court's decision to issue a nunc pro tunc order amending its prior order that granted her motion for return of property following her conviction of three drug offenses. For the reasons stated below, we reverse and remand with directions to vacate the nunc pro tunc order.
Woodley entered a plea agreement wherein she agreed to plead guilty to one count each of possession with the intent to distribute a controlled substance, no tax stamp, and unlawful acts involving proceeds derived from violations of drug laws. On February 15, 2012, the district court sentenced Woodley to 18 months' probation, with underlying concurrent sentences totaling 16 months in prison.
Woodley's plea agreement contained the following provision:
“Defendant will forfeit the money confiscated by the police [at the time of her arrest] unless Defendant can prove that a portion of the money was from a tax return, then that portion of the money may be returned to Defendant after the costs and fees assessed by the court in this case are paid.”
At sentencing, the prosecutor stated that this provision in the plea agreement “may be problematic” and asked the district court to “not make any orders regarding the forfeiture which is discussed there.” The district court then questioned whether it would have jurisdiction over the money, suggesting that the matter would properly be resolved in a forfeiture action or civil suit. Defense counsel at first agreed that “forfeiture is not within the jurisdiction” of the district court. However, he then argued that because the State had not yet initiated forfeiture proceedings, the money was simply being held as evidence in the case; thus, the court did have jurisdiction to order the money be returned to Woodley. In the end, the district court declined to issue a ruling at sentencing regarding disposition of the money because the court did not believe the issue was properly before it. To that end, the court suggested Woodley could file a motion for release of evidence after sentencing if she so desired.
That same day, Woodley filed a motion for return of property in which she claimed she was entitled to possession of her vehicle and the $7,021 seized as evidence by the police at the time of her arrest. The motion noted that no civil forfeiture action had been filed as of the time of sentencing on February 15, 2012. On February 29, 2012, the district court granted the motion, ordering the Wichita Police Department to release the $7,021 to the clerk of the district court to satisfy any pending balance owed to the court, with the remaining amount to be distributed to Woodley. The court further ordered Woodley's vehicle to be returned to her “[s]ubject to any pending forfeiture action.”
On March 21, 2012, the State filed a motion requesting the court enter a nunc pro tunc order based on the State's recent discovery that in August 2011—long before Woodley filed her February 15, 2012, motion for return of property—a judgment of forfeiture against Woodley's property had been filed in a civil forfeiture proceeding previously initiated by the State. The forfeiture judgment ordered $9,060.69, Woodley's vehicle, and a quantity of marijuana be forfeited to the State. Because this judgment of forfeiture was in place several months before Woodley was convicted and sentenced, the State claimed the court should amend the language in its February 29, 2012, order granting Woodley's motion for return of property to read that the release of $7,021 was subject to any forfeiture action.
At the hearing on the State's motion, both the prosecutor and Woodley's counsel agreed with the district court that there was a mutual mistake of fact at the time of the plea agreement because both parties believed that no forfeiture proceeding had been initiated. The prosecutor explained that the State was requesting the district court to issue a nunc pro tunc order so the February 29 order would reflect that it was not overriding the forfeiture case. Woodley's counsel acknowledged that Woodley would have to go through a civil proceeding to retrieve her money because there was already a forfeiture order in place. Nonetheless, he argued that a nunc pro tunc order would be “an incorrect and improper order” because a civil forfeiture action was the proper forum for resolving the issue concerning the money. Defense counsel further argued that an order making the return of Woodley's property subject to the forfeiture action might supersede any future civil action wherein Woodley attempted to get her property back.
On April 3, 2012, the district court ultimately issued a nunc pro tunc order as requested by the State, which modified the February 29 order to order the return of both the money and the vehicle to Woodley subject to any pending forfeiture action.
Woodley claims the district court erred in issuing the nunc pro tunc order because it did not correct a clerical mistake or error in the record but instead substantively altered the district court's original judgment.
A court may, at any time, correct “[c]lerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission,” under K.S.A. 22–3504(2). This is known as a nunc pro tunc order. See State v. Beaman, 295 Kan. 853, 870, 286 P.3d 876 (2012). Our Supreme Court has stated: State v. Thomas, 239 Kan. 457, 460, 720 P.2d 1059 (1986). “A nunc pro tunc order is designed to make [a] court's records speak the truth and to record that which was actually done, but not recorded.” In re Estate of Mater, 27 Kan.App.2d 700, 703, 8 P.3d 1274,rev. denied 270 Kan. 898 (2000). “ ‘[I]t is not the function of an order nunc pro tunc to alter the judgment actually rendered.’ “ 27 Kan.App.2d at 704 (quoting Bush v. Bush, 158 Kan. 760, 763, 150 P.2d 168 [1944] ).
In this case, the district court did not correct a clerical error. Instead, it improperly used the nunc pro tunc order to change its original order granting Woodley's motion for return of property. As a result, we must vacate the nunc pro tunc order issued by the district court. But vacating the nunc pro tunc order provides Woodley with only part of the relief she requests on appeal. Specifically, Woodley seeks to reinstate the February 29, 2012, order that; required the Wichita Police Department to release the $7,021 to the clerk of the district court to satisfy any pending balance owed to the court with the remaining amount to be distributed to Woodley and to return Woodley's vehicle to her “[s]ubject to any pending forfeiture action.” In response, the State argues the February 29, 2012, order cannot be reinstated because the district court never had the requisite jurisdiction to enter the order in the first place.
“A judgment is void if the court that rendered it lacked subject matter jurisdiction, personal jurisdiction, or acted in a manner inconsistent with due process.” Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1024, 58 P.3d 1284 (2002). “A void judgment is a nullity and may be vacated at any time.” Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, 496, 781 P.2d 1077 (1989), cert. denied495 U.S. 932 (1990). Subject matter jurisdiction refers to the power of a court to hear and decide a particular type of action. Subject matter jurisdiction is vested by statute, and parties cannot confer such jurisdiction upon a court by consent, waiver, or estoppel. Miller, 293 Kan. at 669.
Property lawfully in the hands of law enforcement officials for potential use as evidence in a criminal proceeding is regarded as being in “ custodia legis ” (legal custody). In re One 1993 Chevrolet Corsica, 268 Kan. 759, 762, 999 P.2d 927 (2000). “Once the property is lawfully seized, the district court acquires in rem jurisdiction over such property and retains such jurisdiction to restore it to the rightful owner.” State v. Mendenhall, 18 Kan.App.2d 380, 383, 855 P.2d 975,rev. denied 253 Kan. 862 (1993); see K.S.A.2011 Supp. 22–2512. The general rule is that seized property, other than contraband, should be returned to its rightful owner once the criminal proceedings have terminated. A district court has both the jurisdiction and the duty to return the contested property once the State's need for it has ended. Nonetheless, the person seeking return of the property must show that he or she is lawfully entitled to possess it. State v. Markovich, No. 105, 100, 2011 WL 3795544, at *6 (Kan App.2011) (unpublished opinion).
“Property seized and held for use as evidence in a criminal proceeding is ‘subject to the court's order as to...
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