This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Filed September 27, 2005
Concurring specially, Randall, Judge
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Terry W. Viesselman, Martin County Attorney, 123 Downtown Plaza, Fairmont, MN 56031 (for respondent)
U N P U B L I S H E D O P I N I O N
Appellant Larry K. Hinton challenges a September 2004 decision of the postconviction court finding that it did not have jurisdiction to order a refund of money distributed to the Minnesota River Valley Drug Task Force (task force) that the state had collected from Hinton as restitution for his 1991 controlled substance crime. We affirm.
In 1991, Hinton pleaded guilty to one count of fifth-degree controlled substance crime under Minn. Stat. § 152.025, subd. 1(1) (1990). His sentence was stayed and he was ordered to pay $870 in restitution to the task force, which at the time was determined to be a “victim” of the controlled substance crime. In 1994, Hinton pleaded guilty to additional offenses, one of which resulted in the imposition of an 86-month sentence, and his stayed sentence for the 1991 conviction was executed.
In November 2003, Hinton
petitioned the district court for postconviction relief, arguing that the
restitution order and judgment should be rescinded based on this court’s decision
in State v. Murphy, 529 N.W.2d 453,
456 (Minn. App. 1995) (holding that drug task force expending drug buy money to
purchase controlled substance from defendant is not a “victim” entitled to
restitution for controlled substance offense).
The postconviction court granted Hinton’s request and ordered the
In September 2004, the postconviction court issued a second order addressing Hinton’s request that the task force refund him the $432.56 that the task force had received as restitution prior to the postconviction court’s order ceasing revenue recapture. The postconviction court concluded that it did not have jurisdiction to order the refund and denied Hinton’s request.
We review the decision of the
postconviction court for an abuse of discretion. State v. Doppler, 590 N.W.2d 627,
It is well established that a court
“may not exercise jurisdiction over a nonparty.” In re
Marriage of Sammons, 642 N.W.2d 450, 457 (
Hinton directs this court to State v. Larson, 374 N.W.2d 329 (
RANDALL, Judge (concurring specially)
I concur in the result, meaning that, at this time, the postconviction court should not order a refund from a party, Minnesota River Task Force (task force) that has not been properly served and brought before it. However, I see the case as one of a mechanical lack of a proper party as opposed to a failure of jurisdiction.
I can agree with the majority that the task force has to be brought in as a party so they will have a chance to defend on the merits, but it seems to me the postconviction court could simply have told appellant that, at this point, the action is dismissed without prejudice, as an indispensable party has yet to be joined. The majority essentially comes to about the same conclusion, as it points out that a district court later will have the jurisdiction to consider appellant’s request. I suggest the postconviction court has the jurisdiction now, as long as appellant can bring in the additional party needed. See Ball v. United States, 193 F.3d 998, 1000 (8th Cir. 1999) (concluding that the district court had jurisdiction over appellant’s motion for return of the money because it was the court in which he had been criminally tried); Ross v. United States, 35 Fed. Appx. 275, 276-76 (8th Cir. 2002) (stating “postconviction filings for the return of property seized in connection with a criminal case are treated as civil equitable actions, and the district court where the claimant was tried has subject-matter jurisdiction ancillary to its criminal jurisdiction to hear the equitable action” (quoting Thompson v. Covington, 47 F.3d 974, 975 (8th Cir. 1995)).
We are not ruling on the merits of this case. The task force obviously has issues of equity and laches it can raise and may very well prevail at least as to a return of money that it was previously sent in good faith and previously spent in good faith. But I cannot find that the postconviction court is powerless to at least hear appellant’s claim. The restitution, which is challenged, was part of a prior sentence in a criminal case, and if courts have the power to do something, by implication they have to have the power to correct mistakes. The issue of the task force not being properly joined is a bona fide issue. But I would simply hold that the postconviction court has jurisdiction and it is up to appellant to bring in indispensable parties. That is a different issue from lack of jurisdiction.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Other than the postconviction court’s September order, there is no evidence in the record of the specifics of Hinton’s request, but on appeal he does not challenge the postconviction court’s description of his request.
 We observe that there is nothing in the record to indicate whether or not Hinton has begun an action in the nature of replevin, or other civil action, to recover the money he alleges is wrongfully in the possession of the task force.
 As a multi-jurisdictional police agency, the task force itself does not have legal capacity to sue or be sued. See Hyatt v. Anoka Police Dep’t, 700 N.W.2d 502, 505-06 (Minn. App. 2005) (holding police department must be dismissed from suit because “while a municipal corporation such as [a] city ha[s] the authority to sue and be sued, its departments have not been given that specific authority”).
 Whether it is possible to add a party in a request for postconviction relief under Minn. Stat. § 590.01, subd. 1 (2004), which Hinton has never requested that he be allowed to do, is not before us.