Opinion
No. 108,084.
2013-08-30
STATE of Kansas, Appellee, v. Sarah N. WOODLEY, Appellee.
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.
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.
MEMORANDUM OPINION
PER CURIAM.
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.
Facts
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.
Analysis
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: “Clerical mistakes within the record include typographical errors, incorrect statute numbers, failure to include the statute number, failure to state additional true matter, formal or clerical errors and entries concerning matters of procedure. Such omissions or errors are correctable by nunc pro tunc orders.” 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 disposition thereof in the same proceeding, rather than in a separate action.’ “ Mendenhall, 18 Kan.App.2d at 383 (quoting State v. Gunzelman, 200 Kan. 12, 14, 434 P.2d 543 [1967] ). The statute governing the disposition of evidence seized specifically provides that the district court may transfer the property to the jurisdiction of any other court where the property is required as evidence in a prosecution in such court. K.S.A.2011 Supp. 22–2512(1). The statute further provides that “[w]hen property seized is no longer required as evidence, it shall be disposed of as follows: ... controlled substances forfeited for violations of K . S.A.2011 Supp. 21–5701 through 21–5717, and amendments thereto, shall be dealt with as provided under K.S.A. 60–4101 through 60–4126, and amendments thereto.” K.S.A.2011 Supp. 22–2512(3)(f).
This last provision cross-references the Kansas Standard Asset Seizure and Forfeiture Act (Forfeiture Act), which provides the mechanism by which the State may gain title to property seized in relation to certain criminal offenses. K.S.A. 60–4101; K.S.A.2011 Supp. 60–4104. The Act provides that the district court in forfeiture proceedings has jurisdiction over:
“(1) All interests in property if the property for which forfeiture is sought is within this state at the time the action is filed; or
“(2) the interest of an owner or interest holder in the property if the owner or interest holder is subject to personal jurisdiction in this state.” K.S.A. 60–4103.
Offenses giving rise to forfeiture under the Forfeiture Act include violations involving controlled substances, as described in K.S.A.2011 Supp. 21–5701 through K.S.A.2011 Supp. 21–5717. K.S.A.2011 Supp. 60–4104(b). Controlled substances are “any drug, substance or immediate precursor included in any of the schedules designated in K.S.A. 65–4105, 65–4107, 65–4109, 65–4111 and 65–4113, and amendments thereto.” K.S.A.2011 Supp. 21–5701(a). Woodley was charged with offenses under K.S.A.2010 Supp. 65–4105, K.S.A. 65–4107, and K.S.A. 65–4109, so, under the Forfeiture Act, her offenses gave rise to forfeiture of her property seized. The property subject to forfeiture is listed in K.S.A.2010 Supp. 60–4105(b)(2) and includes “all property of every kind, including, but not limited to, cash and negotiable instruments .... used or intended to be used in any manner to facilitate conduct giving rise to forfeiture.” Therefore, the money and vehicle seized from Woodley in connection with her arrest for drug offenses were subject to forfeiture. To that end, the State brought forfeiture proceedings for this property on August 1, 2011, and received a judgment of forfeiture on August 12, 2011, which ordered that $9,060 .69, Woodley's vehicle, and a quantity of marijuana be forfeited to the State.
The reference in K.S.A.2011 Supp. 22–2512(3)(f) to the Forfeiture Act indicates that disposing of property seized as evidence in a criminal proceeding is a completely separate process from a forfeiture proceeding. Although the district court in a criminal proceeding has in rem jurisdiction over the defendant's property seized as evidence and may return it to that defendant, K.S .A.2011 Supp. 22–2512(3)(f) as well as all the above provisions of the Forfeiture Act make clear that the court in which any forfeiture proceedings are brought has jurisdiction to dispose of the seized property once it is no longer needed for evidence in the criminal case. In addition, K.S.A.2011 Supp. 60–4104 provides that property is subject to forfeiture even if there is not a prosecution or conviction for the underlying offense giving rise to the forfeiture. Similarly, K.S.A.2011 Supp. 60–4112(o) states: “An acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this act, nor give rise to any presumption adverse or contrary to any fact alleged by the seizing agency.” Thus, a criminal court has no authority to make orders regarding the forfeiture of seized property because it is the district court hearing the forfeiture proceeding that has jurisdiction to dispose of property subject to forfeiture.
Furthermore, the judgment of forfeiture entered months before Woodley's guilty plea and sentencing was a final judgment and thus res judicata. Therefore, even if the criminal district court below had the authority to do so, it could not dispose of property already disposed of in the forfeiture proceedings. “Where the same facts, same parties, and same issues have previously been litigated before a court of competent jurisdiction, the doctrine of res judicata prevents a second assertion of the same claim.” Steele v. Guardianship & Conservatorship of Crist, 251 Kan. 712, 720, 840 P.2d 1107 (1992). Res judicata requires a prior final judgment on the merits. Venters v. Sellers, 293 Kan. 87, 98, 261 P.3d 538 (2011). In the Forfeiture Act, K.S.A.2011 Supp. 60–4116 provides that after final disposition or final judgment, the court shall enter an order transferring clear title to the forfeited property. Here, the court in the forfeiture proceeding issued a judgment of forfeiture ordering that the Wichita Police Department had clear title to Woodley's seized property, which indicates that there was a final judgment under K.S.A.2011 Supp. 60–4116. Thus, the forfeiture judgment was a final judgment for purposes of res judicata, so the district court below did not have authority to enter any judgment regarding the property disposed of in the forfeiture proceedings.
In sum, the district court in Woodley's criminal case overstepped its bounds when it attempted to dispose of the property seized in both the original order and the nunc pro tunc order because the property was subject to forfeiture and already disposed of by the district court with jurisdiction over the forfeiture proceedings. The appellate courts always have the authority to vacate an order “to assure that it is just, legal, and free from abuse.” State v. Vanwey, 262 Kan. 524, 527–28, 941 P.2d 365 (1997). The Kansas Supreme Court has held: “If the trial court lacked jurisdiction to grant a nunc pro tunc order, we may vacate that order....” 262 Kan. at 528. Moreover, a judgment is void if the court that rendered it lacked jurisdiction, and a void judgment may be vacated at any time. Miller, 293 Kan. at 672;Allen, 274 Kan. at 1024;Bazine State Bank, 245 Kan. at 496. Therefore, we vacate both the March 21, 2012, nunc pro tunc order and the original February 29, 2012, order releasing $7,021 and the vehicle to Woodley.
Reversed and remanded with directions to vacate the March 21, 2012, nunc pro tunc order and the February 29, 2012, order granting Woodley's motion for return of property.