State v. Andre L. Jones, 2023AP1535-CR, 2023AP1536-CR, 2023AP1537-CR and 2023AP1538-CR, 5/16/24, District IV(not recommended for publication); case activity
In a rare appeal of an order denying a motion for return of property, COA rejects a novel statutory construction argument by adhering to what it views as binding precedent.
Return of Property
Jones sought return of property seized from a safe in connection with a drug case. (¶20). However, he failed to file the motion within 120 days of the initial appearance, so the circuit court found the motion untimely under § 968.20(1), which states that the petition “shall be filed” within that window of time. (Id.). In order to get around that deadline, Jones argues that the legislature’s modification to other statutes governing forfeiture of property establish that “property ‘seized by not forfeited'” must be returned to its rightful owner. (¶36). Given the legislature’s sweeping changes to rules regarding forfeiture of property, he views “§ 968.20(1) as setting forth a limited procedure by which the owner of the seized property can obtain its return on a conditional basis during the pendency of the criminal investigation and any criminal and forfeiture proceedings. Jones further argues that, although he did not take advantage of the pretrial return procedure in § 968.20(1), he did not forever lose the right to seek the return of the property once the investigation and proceedings were over.” (¶34).
While COA observes that Jones’s interpretation is “reasonable,” it holds that it is foreclosed from agreeing with him given SCOW’s decision in State v. Leonard Jones. (¶39). Under that decision, if the State does not initiate a formal forfeiture proceeding, “then owners of seized property could only recover their property pursuant to the return procedure in Wis. Stat. § 968.20.” (¶43). Accordingly, he must comply with the rules of that statutory scheme, including its 120 day deadline.
Imposition of Fine
Jones also argues that the circuit court erroneously exercised its discretion when it imposed a $2,000 fine based in large part on the fact that there was cash bail to apply to that fine. (¶14). COA holds that it was not improper for the court to consider the existing cash bail in ordering a fine, however, and otherwise holds that the circuit court adequately explained its reasoning for imposing the fine. (¶¶16-17).
