1. CRIMINAL LAW — Funds — Fruit of Illegal Activity — In Custodia Legis — Within Court's Jurisdiction. Where funds were in custodia legis and state had alleged that funds were fruit of illegal activity, criminal court had jurisdiction to hold hearing to determine whether funds should be returned to defendant, such power being within the scope of the inherent power of the court to control and prevent the abuse of its process.
Opinion by JUDGE ENOCH.
Defendant Cal Leonard Stewart entered a plea of guilty to second degree forgery and was sentenced to an indeterminate term not to exceed ten years. Subsequent to this conviction, defendant filed a pro se motion for credit for presentence jail time, and the People filed a motion entitled "restitution." The People's motion alleged that $1,172 seized from defendant at the time of his arrest had been obtained by his cashing forged checks, and it requested distribution of the money to persons damaged by defendant's illegal activity. The court denied defendant's motion, and granted the People's motion. Defendant appeals from both rulings, and we affirm.
Citing the general rule that a criminal court may only order restitution pursuant to a statutory provision, defendant alleges that the criminal court was without jurisdiction to entertain the motion labeled "restitution." Additionally he argues that even if jurisdiction existed, the court could only order restitution of $460, the amount of the checks which were at issue in the criminal case. We disagree with these propositions.
[1] The funds here at issue were seized from defendant at the time of his arrest, and were in the possession of the arresting authorities at the conclusion of the criminal case. Therefore those funds were in custodia legis. People v. Superior Court, 28 Cal. App. 3d 600, 104 Cal. Rptr. 876; see also Maley v. Heichemer, 81 Colo. 379, 256 P. 4. Hence, once the state had alleged that the property was the fruit of an illegal activity, the criminal court had jurisdiction to hold a hearing to determine whether the property should be returned to defendant, that power to hold such a hearing being within the scope of the inherent power of the court to control and prevent the abuse of its processes. People v. Superior Court, supra. [2] Under such circumstances, if the property seized from a defendant is proven to be the fruit of an illegal activity, the court cannot sanction the use of the legal system to return the property to the wrongdoer. As was stated in Carr v. Hoy, 2 N.Y.2d 185, 158 N.Y.S.2d 572, 139 N.E.2d 531:
"The money plaintiff sues for was the fruit of an admitted crime and 'no court should be required to serve as paymaster of the wages of crime.' "
[3] Where there is a dispute as to whether the money seized from a defendant is the fruit of an illegal activity, due process requires that the criminal court hold a hearing in which defendant is allowed to cross-examine witnesses and to present evidence. State v. Sherry, 46 N.J. 172, 215 A.2d 536. In the instant case, the district court held such a hearing and defendant was afforded full due process rights.
[4] Defendant alleges that only the $460 which was the amount of the checks which were the subject of his conviction was the fruit of an illegal activity; however, the arresting officers testified that defendant told them at the time of the arrest that the money in his possession had come from cashing checks. Since defendant pled guilty to cashing forged checks, the trial court could logically infer from that testimony that defendant had admitted that the money in his possession was a result of cashing forged checks. There were, in fact, other checks in the possession of the prosecutor which were allegedly forged by defendant and which were for amounts totalling in excess of the cash in question. Therefore the finding by the trial court that all the money in the possession of defendant at the time of his arrest was the result of illegal activities is supported by substantial evidence.
[5] One who steals, or converts property to his own use, does not thereby acquire title to the property. Trustee Co. v. Aetna Casualty Surety Co., 135 Colo. 236, 310 P.2d 727. Thus once the trial court had determined that the money found in the possession of defendant was the result of illegal activities, the defendant had no standing to question the court's order of distribution of those funds.
[6] At oral argument, counsel for defendant conceded that, in light of facts shown by the supplemental record, defendant was not entitled to credit for all 190 days claimed for presentence jail time, yet contended that he was entitled to some credit. That record clearly indicates that the entire 190 days defendant spent in jail prior to conviction had already been credited on sentences imposed on prior convictions. Therefore denial of defendant's motion for presentence credit was correct.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE STERNBERG concur.