         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   August 13, 2002 Session

          STATE OF TENNESSEE v. FRANK MICHAEL VUKELICH

                Direct Appeal from the Criminal Court for Davidson County
                        No. 98-D-2423    Cheryl Blackburn, Judge



                    No. M2001-01184-CCA-R3-CO - Filed October 7, 2002


Hayes, David G., J., dissenting.

        With all due respect to my colleagues, I must dissent. After review of the record, I find that
the Davidson County Chancery Court never obtained jurisdiction of the approximately $102,000
seized by the Drug Task Force and deposited with the Metro Trustee. The following chronological
history is critical to this finding:

       1. The Appeals Division of the Department of Safety entered an order, dated June
       9, 1998, requiring the seized funds to be returned to the defendant.

       2. On August 7, 1998, the defendant sought a limited appeal to the Davidson County
       Chancery Court from the Department of Safety ruling. The only issue being the
       defendant’s entitlement to “receive damages from the Department for the taxes
       assessed on phantom income resulting from the liquidation of the mutual fund on the
       aborted forfeiture.” The matter of return of the funds to the defendant was not at
       issue on appeal.

       3. On January 22, 1999, the defendant was convicted of conspiracy to deliver over
       700 pounds marijuana, multiple counts of conspiracy to commit money laundering,
       and money laundering. The judgment of the Davidson County Criminal Court
       assessed a fine of $150,000, plus court costs.

       4. While on appeal, the defendant and the Department of Safety entered into an
       “Agreed Order of Remand,” approved by the chancery court on February 9, 1999,
       which deleted a provision of the June 9, 1998 Department of Safety order mutually
       releasing the defendant and the State “from all claims for injuries or damages,
       whether now known or that may accrue in the future arising out of the above
       referenced seizure.” This order did not affect return of the funds to the defendant.
       Furthermore, the funds were never transferred to the clerk and master of the chancery
       court but remained the property of the Metro Trustee.
       5. On May 7, 1999, the Davidson County Criminal Court issued a writ of fieri facias
       attaching the seized funds held by the Metro Trustee. The funds were transferred to
       the criminal court clerk on July 22, 1999.

       6. Three months later, on August 10, 1999, the Davidson County Chancery Court
       conducted a show cause hearing upon motion by the defendant to determine the
       reason the seized funds had not been returned to the defendant. On August 13, 1999,
       the chancery court entered an order, stating that “the Department of Safety has failed
       to show cause why the funds in issue were not restored to Mr. Vukelich as required
       by this Court’s February 9, 1999 order.” Contrary to the court's recitation, this is the
       first time the chancery court addressed by order return of the funds to the defendant.


Although the defendant alleges that he repeatedly requested return of the seized funds, there is
nothing in the record that supports this allegation. Clearly, the Appellant could have sought return
of the funds from the Department of Safety at any time prior to the issuance of the fieri facias or
from chancery court prior to its remand for enforcement of its order. See Tenn. Code Ann. § 4-5-
322(c) (review itself does not stay enforcement of the agency decision). The defendant never sought
restoration of the funds until after the funds were attached by the criminal court by way of fieri
facias.

        I find that the chancery court never had jurisdiction over the seized funds because the issue
of restoration was not appealed to the that court and was outside the reviewing court’s scope of
review. See Tenn. Code Ann. § 40-33-213 (1997). This position is, also, supported by the fact that
the seized funds were never held pursuant to orders of the chancery court nor did the court exercise
any control over the funds. Thus, the doctrine of custodia legis ceased to apply after ownership of
the funds was determined by the Department of Safety's ruling. See Brunswick Corp. v. J & P, Inc.
424 F.2d 100, 102 (10th Cir. 1970). Assuming for argument’s sake the chancery court obtained
jurisdiction over the seized funds by appeal as my colleagues suggest, it relinquished jurisdiction
when it remanded the case to the Administrative Law Court by agreed order. See Tenn. Code Ann.
§ 4-5-322(h) (1998). It is uncontested that the funds belong to the defendant at the time the fieri
facias issued and that the criminal court had, not only the authority but an obligation, to enforce its
judgments and orders, which would include the attachment of property held in the hands of a third
party. In sum, I would find, as did the Davidson County Criminal Court, that the seized funds were
not subject to the jurisdiction of the chancery court when the writ of fieri facias was issued, and the
criminal court properly enforced its judgment by seizing the funds held by the Metro Trustee.




                                               __________________________________________
                                               David G. Hayes, Judge



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