State of Louisiana VS Antonio Tyson
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0866 STATE OF LOUISIANA VERSUS ANTONIO TYSON Judgment rendered October 29 2010 Appealed from the 22nd Judicial District Court in and for the Parish of St Tammany Louisiana Trial Court No 203983 1 Honorable Raymond S Childress Judge HON WALTER P REED ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA COVINGTON LA AND KATHRYN W LANDRY BATON ROUGE LA ANTONIO TYSON D C O DEFENDANT APPELLANT ANGIE LA PRO SE BEFORE KUHN PETTIGREW 33 and KLINE 3 Pro Tem 1 Judge William F Kline Jr retired is serving as judge pro tempore pursuant to special appointment of the Louisiana Supreme Court PETTIGREW J Antonio Tyson an inmate at Rayburn Correctional Center in Angie Louisiana appeals the district court denial as untimely his motion seeking the return of certain s items of property seized by law enforcement following his arrest on December 7 1991 For the reasons that follow we hereby vacate the judgment and remand for further proceedings In December 1991 and January 1992 search warrants were issued and executed for the residence and person of Antonio Tyson defendant herein Pursuant to said warrants certain property was seized On January 22 1992 Mr Tyson was charged by grand jury indictment with one count of aggravated rape one count of armed robbery and one count of burglary Mr Tyson pled guilty on October 13 1993 to one count of forcible rape one count of armed robbery and one count of burglary and was sentenced to forty years imprisonment On September 22 2008 Mr Tyson appearing in proper person filed a pleading entitled Return of Seized Property wherein he sought the return of 1 dollars in 00 500 cash together with certain unspecified items of jewelry and other personal items and effects Mr Tyson claimed said items were seized from the residence of his mother where he was living at the time of his arrest Mr Tyson further alleged that more than 161 years had elapsed since his arrest and that no forfeiture hearing had ever been 2 held On September 30 2008 the trial court ex parte and without a hearing denied said motion on the grounds it was not timely filed Upon receiving notice of judgment Mr Tyson filed a Notice of Intent to Seek Writs on December 5 2008 This court on July 9 2009 granted Mr Tyson writ and remanded this matter to the trial court with s instructions that Mr Tyson be granted an appeal 2 The issue raised in connection with this appeal concerns the timeliness of Mr s Tyson claim for return of his property allegedly seized by law enforcement 2 See Antonio Tyson v State of Louisiana 2009 CW 0135 La App 1 Cir 7 2009 9 K In his pro se brief to this court Mr Tyson has put forth a supplemental argument asserting that his previous counsel filed a motion on November 22 1993 seeking the return of unspecified personal effects seized by law enforcement at the time of his arrest and that his present request is therefore timely The State alleges in response that the 1993 motion filed on behalf of Mr Tyson sought the return of personal effects seized by law enforcement was not the pro se motion at issue in this appeal wherein Mr Tyson seeks the return of seized property The State further states that in contravention of La S 41 R 15 the 1993 motion was never served upon the State and failed to request a contradictory hearing In conclusion the State contends that because the request at issue herein was not made within two years from the date of seizure the trial court properly concluded the request was untimely Louisiana Revised Statute 15 governs the disposition of property seized in B 41 connection with a criminal proceeding in cases where there is no specific statute concerning the disposal of property not to be used as evidence or no longer needed as evidence In 1991 the date of the seizure in this case La R 15 S 41 a 2 B provided that if the owner of noncontraband property did not claim it within two years after its seizure the court was required to order a sale of the property at a nonjudicial public sale or auction The proceeds of the sale were to be administered by the court and used exclusively for the maintenance renovation preservation or improvement of the court building facilities or records system Taiae v City of Baton Rouge 000915 p 5 La App 1 Cir 6 808 So 677 681 This statute must be construed in favor 01 22 2d of maintaining an owner property rights because of the explicit constitutional directive s that p effects shall never be taken La Const Art 1 ersonal 4 Because there is no express provision that an owner abandons all rights if no claim is made within two years the time limit of La R 15 must be interpreted as a minimum period before a S 41 2 B 3 In 1999 the legislature amended La R 15 to change the time period within which the court is S 42 2 6 precluded from taking action regarding seized noncontraband property from two years to six months 1999 La Acts No 1195 1 We apply the version of the statute in effect at the time of the seizure See State v Lamb 31 La App 2 Cir 5 732 So 1270 1274 919 99 7 2d 3 court may act to dispose of the seized property State v Baynes 960292 p 5 La App 4 Cir 7 678 So 959 961 962 underscoring supplied see also Taiae 96 31 2d 000915 at 5 808 So at 681 The statute does not set an outside time limit within 2d which an owner of noncontraband property must assert a claim for the property return s Taiae 000915 at 5 808 So at 681 2d In Taiae and Baynes and later in Owens v Book 01 1151 p 4 La App 3 Cir 02 6 3 809 So 1217 1219 the owners of property seized by law enforcement six 2d eight and eleven years earlier respectively which had neither been returned nor otherwise disposed of pursuant to a valid court order were allowed to assert claims for the return of their property We are further mindful of State v Foster 082545 La App 1 Cir 6 43 So 200 a case in which a panel of this court distinguished the 09 12 3d Taiae case from the facts presented in Foster In the instant matter the trial court signed an ex pane order dismissing Mr s Tyson motion seeking the return of items allegedly seized by law enforcement without a hearing due to untimeliness Neither the State nor Mr Tyson was given the opportunity to make a showing as required by La R 15 that the seized property was S 41 2 8 contraband or that the court entered an order disposing of the property after the 2year retention period had lapsed Under the facts of this case we are compelled to conclude the trial court dismissed Mr Tyson petition because the trial court was of the opinion s that Mr Tyson claim had prescribed s Louisiana Code of Civil Procedure article 927 provides in part B The court may not supply the objection of prescription which shall be specifically pleaded The trial court committed legal error by ex pane raising the issue of prescription on its own For this reason we must vacate the trial court order of s September 30 2008 and remand this matter to the trial court for further proceedings Having found that Mr Tyson has established his right to proceed by contradictory hearing for the return of his alleged property seized by law enforcement we note that he has not complied with the procedural requirements Louisiana Revised Statute 15 C 41 specifies that a motion for the return of property seized in connection with a criminal proceeding shall be heard contradictorily with the clerk of court The record before this E court does not indicate that the St Tammany Parish Clerk of Court was made a party to any hearing regarding the disposition of this property As Mr Tyson has alleged the Covington Police Department and in his earlier pleading the St Tammany Parish Sheriffs Office had custody of property belonging to him the City of Covington and possibly the St Tammany Parish Sheriff Office should also be made parties to this proceeding s CONCLUSION Accordingly the trial court September 30 2008 judgment denying Mr Tyson s s motion seeking the return of his property is hereby vacated This matter is remanded to the trial court for a contradictory hearing at which the St Tammany Parish Clerk of Court the City of Covington and possibly the St Tammany Parish Sheriffs Office shall be directed to show cause why the 1 dollars in cash together with certain 00 500 unspecified items of jewelry and other personal items and effects allegedly seized from Mr Tyson at the time of his arrest should not be returned to him Costs associated with this appeal in the amount of 826 shall be assessed against the State of Louisiana 50 JUDGMENT VACATED CASE REMANDED 5
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