         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs November 27, 2001

                STATE OF TENNESSEE v. CONNIE LEE ARNOLD

                       Appeal from the Criminal Court for Carter County
                             No. 12165    Lynn W. Brown, Judge



                                  No. E2001-00618-CCA-R3-CD
                                        January 29, 2002

The defendant, Connie Lee Arnold, appeals from the Carter County Criminal Court’s denial of his
motion for return of property by the state in its prosecution of him and for return of property and files
in the possession of his former trial attorney. The trial court concluded that it had no jurisdiction to
rule in the matter. The state agrees with the defendant that the trial court has jurisdiction to act on
the motion relative to evidence used in the case and otherwise seized and possessed by the state, but
it asserts that property and files possessed by the defendant’s former attorney should be addressed
by the Board of Professional Responsibility or a civil court. Although we hold that the trial court had
jurisdiction relative to evidence presented in the case, we affirm the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

Connie Lee Arnold, Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
Joe C. Crumley, Jr., District Attorney General; and Lisa Rice, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                              OPINION

        The defendant was convicted of child rape and especially aggravated sexual exploitation of
a minor, and this court affirmed the convictions on appeal. See State v. Connie Lee Arnold, No.
03C01-9902-CR-00081, Carter County (Tenn. Crim. App. Jan. 11, 2000), app. denied (Tenn. Sept.
25, 2000). Subsequently, the defendant filed a motion for return of all property seized by the state.
Although the motion states that return is sought of such property that was not used as evidence, it
also specifies four photographs that were introduced into evidence. It also specifies photograph
albums with photographs, a belt, and a carrying bag. The defendant also filed a motion asking the
trial court to require his trial attorney to turn over his files, notes, etc., regarding the case in order
that the defendant could proceed with a post-conviction action.
        In denying the motion, the trial court held that it had no jurisdiction to grant the defendant
relief because the underlying criminal case had ended. In agreeing with the defendant that the trial
court has jurisdiction relative to items seized by the state in its prosecution of the defendant, the state
asserts that statutes empower a trial court to dispose of records, documents, and physical evidence
used in judicial proceedings when such evidence is deemed to be no longer needed. See Tenn. Code
Ann. §§ 18-1-201, -206. It also notes that this court has concluded that “a trial court has the inherent
authority to determine the custody and control of evidence held in the clerk’s office.” Ray v. State,
984 S.W.2d 236, 238 (Tenn. Crim. App. 1997). We believe that the state has failed to see the limit
of the statutes and Ray.

        The focus of the law cited by the state is upon items entered as evidence in the case. It does
not relate to property possessed by law enforcement authorities or prosecutors that was never used
as evidence in court. In this respect, we agree with the trial court. We do not see how the trial court
can exercise any authority over such property through a motion once the criminal case is at an end.
On the other hand, a defendant certainly has the right to sue for the return of property in any court
of competent jurisdiction, and the court can rule on the merits. Likewise, we do not believe that the
trial court can act pursuant to a motion in a case that has already ended relative to the defendant’s
former attorney’s files and related property. Again, the defendant has the right to sue for the return
of property in any court of competent jurisdiction, and the merits can be resolved.

       Even though we hold that the trial court has authority to dispose of evidence used in the case,
we do not mean to imply that the defendant is entitled to such evidence. With a criminal case ending
in conviction, there is the real potential of the case being reopened through the post-conviction
process, included through federal habeas corpus action. In fact, the defendant says he plans to seek
post-conviction relief. Also, as a practical matter, as in the present case, filing a record, including
the exhibits, with an appellate court brings the exhibits within the jurisdiction of the appellate court.
In such event, although the trial court may determine that the return of evidence is warranted, the
authorization for the return would have to come from the appellate court. Under the existing
circumstances, including the defendant’s intent to pursue post-conviction relief, we hold that the trial
evidence shall remain presently as part of the record in the convicting case.

        In consideration of the foregoing and the record as a whole, we affirm the trial court.


                                                         ___________________________________
                                                         JOSEPH M. TIPTON, JUDGE




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