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Court has no “inherent” power to apply cash seized at time of arrest to pay costs, restitution

State v. Tommy Lee Branch, 2015 WI App 65; case activity (including briefs)

The circuit court had no authority to order cash seized from Branch on his arrest to be used to pay court obligations because there was no basis for concluding the money was not subject to return under § 968.20. As the court of appeals puts it, the cash Branch had at the time of his arrest was no different from any other personal property he had when arrested. “Had [Branch] been wearing a $200 Stetson hat, a $300 Gucci belt, or a pair of $500 Allen Edmonds shoes, the State would not be allowed to seize those items of personal property and sell them on eBay to pay Branch’s debts.” (¶10).

When Branch was arrested for attempted burglary he had $583 in cash on his person that was seized by law enforcement. After Branch pled no contest to attempted burglary and was sentenced to prison he filed a motion for return of the $583 under § 968.20, but the circuit court denied Branch’s request and applied the $583 to financial obligations Branch owed on this case. (¶¶3-4).

The state concedes Branch is entitled to the money under § 968.20 because there is no evidence that it was contraband. (¶¶2, 8). Nonetheless, the state argues the circuit court has the “inherent authority to offset judgments.”

¶8     …. The State cites to a single source, Black v. Whitewater Commercial & Savings Bank, 188 Wis. 24, 205 N.W. 404 (1925), for its argument in favor of permitting this equitable form of relief at a Wis. Stat. § 968.20 proceeding. We are not persuaded by the State’s reliance on Black. Black does not involve a claim under § 968.20, which does not provide for equitable relief. See City of Milwaukee v. Glass, 2001 WI 61, ¶¶21-23, 243 Wis. 2d 636, 628 N.W.2d 343. Further, the Black court upheld the lower court’s decision to deny a request that the plaintiff’s money being held by a bank be allowed to offset a debt. Black, 188 Wis. at 29-30.

¶9    “[A] proceeding under [Wis. Stat.] § 968.20 is a proceeding in rem to determine true ownership of specific property.” Glass, 243 Wis. 2d 636, ¶21. Section 968.20(1) requires a court, upon receiving a claim of ownership of seized property, to provide notice to “all persons who have or may have an interest in the property” and to “hold a hearing to hear all claims to its true ownership.” Neither the court nor the victim in this case claim to be the true owners of the $583 cash that Branch had on his person when he was arrested. Rather, their position became one of creditors as a result of the prosecution of this case. Nothing in the statute provides a creditor with the right to obtain a debtor’s property in a § 968.20 proceeding. We agree [with Branch] that [State v.] Jones[, 226 Wis. 2d 565, 594 N.W2d 738 (1999),] controls to the extent that absent a showing by the State that the money seized from Branch is contraband, the property (money) should be returned to Branch.

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