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DeLoge v. State

May 14, 2010

STEVEN A. DELOGE, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



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

The opinion of the court was delivered by: Kite, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Mr. DeLoge, pro se, appeals from the district court‟s order dismissing his motion for return of property pursuant to W.R.Cr.P. 41(e) and closing the post-conviction matter. The court ruled that, since Mr. DeLoge‟s property was in the possession of officials in another state, it did not have authority to order its return to him. It also denied Mr. DeLoge‟s request for damages to compensate him for his loss. Mr. DeLoge additionally claims that his due process rights were violated when the State did not preserve allegedly exculpatory evidence included in the transferred property and when this Court did not waive the docket fee.

[¶2] We conclude that the district court properly dismissed Mr. DeLoge‟s Rule 41(e) motion for return of his property because the State did not have possession of it, sovereign immunity prevented the court from awarding him damages for the loss of his property, and he did not present a recognizable right to post-conviction preservation of exculpatory evidence. Finally, we conclude that Mr. DeLoge waived his claim that he should have been allowed to proceed on appeal without paying the docket fee.

[¶3] We affirm.

ISSUES

[¶4] Mr. DeLoge presents several issues on appeal. However, his accompanying argument is repetitious and confusing. After reviewing his brief, we have identified the following issues:

1. Did the district court correctly conclude that it did not have authority under W.R.Cr.P. 41(e) to compel the return of property located outside its jurisdiction?

2. Did the district court correctly conclude that it did not have authority to award Mr. DeLoge damages pursuant to W.R.Cr.P. 41(e)?

3. Was Mr. DeLoge‟s right to due process of law violated by the State‟s suppression of, or failure to preserve, allegedly exculpatory evidence?

4, Did this Court deny Mr. DeLoge due process when it required him to pay the docketing fee for his appeal?

FACTS

[¶5] This is Mr. DeLoge‟s fourth appeal to this Court. In 2000, he pleaded guilty to six counts of second degree sexual assault on his girlfriend‟s daughter. We affirmed his convictions and sentence in DeLoge v. State, 2002 WY 155, 55 P.3d 1233 (Wyo. 2002) (DeLoge I).

[¶6] Pertinent to our decision in this case, the record indicates that in late 1999, the FBI took possession of certain items belonging to Mr. DeLoge which the Cheyenne Police Department had seized in the investigation of the sexual assault charges. The FBI returned the items to the Cheyenne Police Department on July 10 or 11, 2000. A few days later, the FBI again took possession of some of the items and transferred them to Mississippi, where they have since remained. The Mississippi authorities retained the items for use in the investigation of the disappearance of Mr. DeLoge‟s girlfriend (mother of the sexual assault victim).

[¶7] In October 2003, Mr. DeLoge filed a Motion for Preservation and Return of Seized Property pursuant to W.R.Cr.P. 41(e):

(e) Motion for return of property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the court in which charges are pending or if charges have not been filed the court from which the warrant issued for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a ...


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