Session November 2, 2016
by Permission from the Court of Criminal Appeals Criminal
Court for Shelby County No. 1003516 James M. Lammey, Judge
issue we address is whether a defendant has an appeal as of
right from the denial of a Tennessee Rule of Criminal
Procedure 41(g) motion for return of property when the
defendant did not file a pretrial motion to suppress and
pleaded guilty. The defendant was indicted on charges of
aggravated assault by use or display of a deadly weapon. Law
enforcement officers seized guns and other related items from
the defendant's home. The defendant did not challenge the
seizure of his property and pleaded guilty to reduced charges
of reckless endangerment. Three years later, he filed a Rule
41(g) motion for the return of property. The trial court
dismissed the motion, and the defendant appealed. The Court
of Criminal Appeals reversed and remanded, finding that the
defendant may be entitled to relief under Rule 41(g) based on
the court's determination that an illegal seizure occurs
when, after a conviction, the State retains possession of
property that is not stolen and not connected to the
commission of a crime. See State v. Rowland, No.
W2014-02311-CCA-R3-CD, 2015 WL 6601315, at *3 (Tenn. Crim.
App. Oct. 30, 2015), perm. app. granted (Mar. 23,
2016). We hold that the defendant had no appeal as of right
under Tennessee Rule of Appellate Procedure 3(b) from the
trial court's order denying the Rule 41(g) motion. The
Court of Criminal Appeals erred by hearing the
defendant's appeal when it lacked jurisdiction under Rule
3(b) and by determining that the defendant could be entitled
to relief under Rule 41(g).
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Criminal Appeals Reversed
Herbert H. Slatery III, Attorney General and Reporter;
Andrée S. Blumstein, Solicitor General; Jennifer L.
Smith, Associate Solicitor General; M. Todd Ridley, Assistant
Attorney General; Amy P. Weirich, District Attorney General;
and Glen Baity and Billy Bond, Assistant District Attorneys
General, for the appellant, State of Tennessee.
Haden Lawyer, Memphis, Tennessee, for the appellee, Ray
G. Lee, J., delivered the opinion of the court, in which
Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Holly Kirby,
and Roger A. Page, JJ., joined.
G. LEE, JUSTICE
2010, a Shelby County Grand Jury indicted Ray Rowland on two
counts of aggravated assault by use or display of a deadly
weapon. In August 2011, he pleaded guilty to a reduced charge
of reckless endangerment on each count and received
concurrent probated and suspended sentences of eleven months
and twenty-nine days.
August 22, 2014, Mr. Rowland filed a Tennessee Rule of
Criminal Procedure 41(g) motion for return of property in the
Shelby County Criminal Court. Mr. Rowland's motion alleged
that, on February 24, 2010, the police went to his house
after receiving a report that he had fired two gunshots in
the direction of another individual. Mr. Rowland, who
collected firearms, told the police he owned guns. The police
informed Mr. Rowland that if he did not consent to a search
of his house, "they would come back with a warrant, tear
up his house, and blowtorch his safe." Mr. Rowland
consented to the search; the police seized at least
forty-seven items, most of which were firearms. Many of the
firearms were new, had never been used, and could not have
been used in the crime. Mr. Rowland sought return of the
seized property based on the illegality of the warrantless
October 2014, the trial court heard the Rule 41(g) motion for
return of property. Neither party introduced any evidence.
Following argument of counsel, the trial court dismissed the
motion for lack of jurisdiction, noting that Mr. Rowland
consented to the search of his house and waived any issue
with the search by pleading guilty.
Rowland then appealed, and the Court of Criminal Appeals
reversed and remanded to the trial court for a hearing on Mr.
Rowland's Rule 41(g) motion. Rowland, 2015 WL
6601315, at *4. The intermediate appellate court reasoned
that the State's continued retention of Mr. Rowland's
property was an illegal seizure because the property was not
stolen and was not connected to the crime for which Mr.
Rowland was convicted. Id. at *3. Therefore, the
Court of Criminal Appeals found that Mr. Rowland may be
entitled to the return of his property under Rule 41(g) based
on the State's retention of his property following his
guilty plea. ...