Summary 2010 WY 60

Summary of Decision issued May 14, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: DeLoge v. State

Citation: 2010 WY 60

Docket Number: S-09-0117

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing DeLoge: Pro se.

Representing State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: DeLoge appealed from the district court’s order dismissing his motion for return of property. The court ruled that since DeLoge’s property was in the possession of officials in another state, it did not have the authority to order its return to him. It also denied his request for damages to compensate him for the loss.

W.R.Cr.P. 41(e): As a general rule, a court does not have jurisdiction to grant a Rule 41 motion for return of property when the evidence establishes that the governmental defendant no longer has possession of the property. Applying the rationale from Stevens and Wetherbee to the circumstances presented, the Court concluded that the district court properly denied DeLoge’s motion. The undisputed evidence established that DeLoge filed his motion or return of property after the State had already transferred the property to the State of Mississippi and the property was still in possession of those authorities.
DeLoge then asked for compensation for the loss of his property. The facts showed that the property was transferred from the Cheyenne Police Department to an FBI agent who then transferred it to Mississippi authorities. The State contacted Mississippi to request an itemized list of all property in their possession. The Mississippi authorities did not cooperate and the State filed its motion to close the case. There was no indication that the State acted to dispose of DeLoge’s property after he filed his motion for return of the property. The Court agreed with the Tenth Circuit’s decision in Clymore and concluded that the concept of sovereign immunity applied to the request for an award of damages.
Exculpatory evidence: The Supreme Court stated in Osborne that states have flexibility to determine what procedures are needed in the context of post-conviction relief. The provision to preserve biological evidence was not in existence when the evidence was seized and DeLoge was convicted of his crime. In fact, it was not passed until about four years after he filed his motion for return of property. Thus he cannot claim that the State violated a statute that did not exist at the time the property was transferred.
Filing fees/ in forma pauperis status: The Court declined to consider the merits of the issue because DeLoge did not file a formal motion with the Court seeking the right to file without payment of the docket fee.

Conclusion: The evidence established that the property was no longer in possession of Wyoming so the district court no longer had jurisdiction. The provision to preserve biological evidence was not in place when the evidence in the instant case was seized and DeLoge was convicted of his crime. The Court did not consider the request for in forma pauperis status because DeLoge did not file a formal motion with the Court.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/282sv72 .

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