Bush v. State
Decision Date | 17 May 1969 |
Docket Number | No. 45570,45570 |
Citation | 454 P.2d 429,203 Kan. 494 |
Parties | Conard Gary BUSH, Appellant, v. STATE of Kansas, Appellee. |
Court | Kansas Supreme Court |
Syllabus by the Court
In an appeal from an order denying relief in a proceeding pursuant to K.S.A. 60-1507 the record is examined and it is held:
1. Petitioner was not denied due process of law when sentenced under K.S.A. 21-107a.
2. A sentence is not void where a journal entry is merely incomplete and subject to correction.
3. A conviction of possession of a pistol in violation of K.S.A. 21-2611 constitutes a felony conviction within the contemplation of K.S.A. 21-107a.
4. Whether an offense constitutes a felony is determined by the punishment prescribed.
5. The giving of an instruction in the language of PIK 10.20, after the case was submitted to the jury, did not amount to reversible error under the circumstances related in the opinion.
6. Whether additional names are to be endorsed on a petitioner's notice of the plea of alibi rests in the sound discretion of the trial court.
7. Where the files and records conclusively show the petitioner was not entitled to relief, it is not required that counsel be appointed nor petitioner produced for a hearing.
8. Where a journal entry fails to fully reflect proceedings, as required by K.S.A 62-1516, proper procedure to complete the journal entry is directed.
Albert John Kirk, Wichita, argued the cause, and Vincent L. Bogart, Wichita, was with him on the briefs for appellant.
Russell Grant, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., Keith Sanborn, County Atty., and A. J. Focht, Deputy County Atty., were with him on the briefs for appellee.
Petitioner appeals from an order denying relief under K.S.A. 60-1507. In February 1966 petitioner was convicted by a jury on two counts of receiving stolen property in violation of K.S.A. 21-549. The conviction on Count I amounted to a felony. On Count II the jury valued the stolen property received by petitioner at less than $50, resulting in a misdemeanor conviction.
Petitioner filed a motion for a new trial which was heard by the court and overruled.
On March 4, 1966, petitioner filed in this court a notice of appeal from the judgment, sentence and order overruling his motion for a new trial.
Petitioner filed a bond in the amount of $12,000, and sentence was stayed by this court. Petitioner took no further steps to perfect his appeal. On April 15, 1967, the state filed a motion to dismiss the appeal on the grounds petitioner had failed to comply with the rules of this court by failing to file his brief and abstract on or before March 1, 1967, under the provisions of Rule No. 15 (Rules of the Supreme Court, 201 Kan. XXVII). The state further pointed out that petitioner had not sought an extension of time. On April 24, 1967, the appeal was dismissed by this court. On May 11, 1967, petitioner was transported to the Kansas State Penitentiary.
During his trial and posttrial proceedings, including the initiating of his appeal, petitioner was represented by personally retained counsel.
In July 1967, while confined in the penitentiary, petitioner filed a motion in this court to reinstate his appeal. The state filed a response, objecting on the grounds that no meritorious explanation was made by petitioner for not abiding by the rules of this court in perfecting his appeal. After considering the matter this court denied petitioner's motion to reinstate on August 31, 1967.
On November 15, 1967, petitioner filed his present motion on the form provided by our Rule No. 121 (Rules of the Supreme Court, 201 Kan. XXXII).
On March 25, 1968, the trial court, after examining the files in the present case and the transcript, files and records in the criminal action, made extensive findings of fact, conclusions of law and determined the files and records conclusively showed petitioner was not entitled to relief.
Thereafter present counsel was appointed and this appeal was perfected.
The points raised by petitioner in his motion and in this appeal consist mainly of trial errors which could have been raised on a direct appeal. Notwithstanding that a proceeding such as this is not to be used as a substitute for an appeal (Rule No. 121(c)(3) of the Supreme Court, 201 Kan XXXIII), under the circumstances present, we shall consider issues raised on their merits.
Petitioner first attacks the sentence pronounced by the trial court as being excessive. The trial journal entry discloses petitioner was sentenced to the Kansas State Penitentiary for a period of fifteen years on Count I, receiving stolen property, a felony contrary to K.S.A. 21-549. On Count II, the misdemeanor conviction, petitioner was sentenced to the Sedwick County jail for one year. The sentences were ordered to run concurrently. Although petitioner failed to specifically set out the point in his 60-1507 motion, he now claims that the failure of the trial journal entry to reflect what is required by K.S.A. 62-1516 denied him a substantive right because he had not been adequately apprised of the trial court's reasons for sentencing him under K.S.A. 21-107a.
Although the trial journal entry fails to recite the previous convictions relied on, as required by 62-1516, the trial court, in ruling on petitioner's motion, made findings in this regard as follows:
'(c) The court further finds that the defendant took the stand during the trial and testified that he had been convicted on October 24, 1954 of burglary and larceny in the State of Missouri, and that on March 20, 1956, in Sedgwick County, Kansas, he was convicted of possession of a pistol after conviction of a felony.'
The trial proceedings, included in the record before us, disclose that while on the witness stand petitioner admitted a Missouri conviction for burglary and larceny in 1953 and a 1956 Kansas conviction for possession of a pistol after conviction of a felony.
Further, the sentencing proceedings, following the hearing on petitioner's motion for a new trial, disclose the state offered into evidence authenticated records disclosing petitioner's Missouri conviction of burglary and larceny and also records of the Sedgwick County, Kansas, conviction in 1956.
Even though petitioner concedes in his brief that an irregular or incomplete journal entry may be corrected by a nunc pro tunc order of the court, he claims that since a nunc pro tunc journal entry has not been filed he has not been adequately apprised of the trial court's reasons for sentencing him under 21-107a.
He further argues that even if a nunc pro tunc journal entry were filed, it would be too late for him to present to this court any questions that might arise.
By way of explanation, the state has appended to its brief a copy of a motion to correct the journal entry nunc pro tunc, filed June 2, 1967, and a journal entry thereon setting out the previous convictions and fully correcting the trial journal entry. The state's attorney explains a nunc pro tunc journal entry was mailed to petitioner's counsel but not returned and, therefore, has not been filed to this date.
The record conclusively shows that at the time of sentencing defendant was well aware of the identity of the two previous convictions, referred to by the trial court, and used as a basis for imposing sentence under K.S.A. 21-107a.
While on the witness stand petitioner admitted and described the convictions. At the sentencing proceedings the state offered documentary evidence of the two convictions. Petitioner's attorney objected to the state's exhibits as not being properly certified or authenticated. The trial court considered this matter and ruled against petitioner. Petitioner could not possibly have been misled as to the identity of the two prior convictions.
This being the case, the sentence is not void; the journal entry is merely incomplete and subject to correction. (Kiser v. State, 196 Kan. 736, 413 P.2d 1002; State v. Moses, 190 Kan. 485, 376 P.2d 804, cert. den. Moses v. Hand, 368 U.S. 863, 82 S.Ct. 110, 7 L.Ed.2d 61; Converse v. Hand, 185 Kan. 112, 340 P.2d 874, and Browning v. Hand, 184 Kan. 365, 336 P.2d 409, cert. den. 361 U.S. 926, 80 S.Ct. 295, 4 L.Ed.2d 240.)
The state admits the journal entry does not correctly reflect the judgment of the trial court and should be corrected nunc pro tunc; why the correction has not been completed we are at a loss to understand. We are compelled to remand the case with directions that the journal entry be corrected in accordance with what was said in Kiser v. State, supra, and Wilson v. Hudspeth, 165 Kan. 666, 198 P.2d 165, cert. den. 335 U.S. 909, 69 S.Ct. 410, 93 L.Ed. 442, rehearing denied 336 U.S. 911, 69 S.Ct. 511, 93 L.Ed. 1075.
In connection with the matter just considered we feel called upon to point out mandatory directions of K.S.A. 62-1516 which read:
'It shall be the duty of the court personally to examine with care the entry prepared for the journal, or the journal when written up, and to sign the same and to certify to the correctness thereof.'
Petitioner claims his prior conviction for possession of a pistol after a felony conviction under K.S.A. 21-2611, cannot be considered as a prior felony conviction for the purpose of imposing sentence under K.S.A. 21-107a under our decisions in State v. Ware, 201 Kan. 563, 442 P.2d 9, and State v. Porter, 201 Kan. 778, 443 P.2d 360. Petitioner fails to recognize the factual distinctions which make those cases inapplicable here. In both Ware and Porter the thrust of our holdings was that a previous felony conviction relied on to establish a violation of a felony firearms statute (21-2611) may not in the same case also be used to invoke the provisions of the Habitual Criminal Act. In petitioner's case the prior felony firearms conviction is a separate felony used only to invoke the Habitual Criminal Act. In State v. Ricks, 173 Kan. 660, 250 P.2d...
To continue reading
Request your trial-
Barnes v. State
...have in the past been rather losely construed. (For the most recent cases, see Holt v. State, 202 Kan. 759, 451 P.2d 221; Bush v. State, 203 Kan. 494, 454 P.2d 429; and Peterson v. State, 203 Kan. 959, 457 P.2d On this point what the Supreme Court of Pennsylvania has said in Com. ex rel. Ha......
-
State v. Anthony
...v. Boyd, 206 Kan. 597, 600-01, 481 P.2d 1015 (1971), cert. denied 405 U.S. 927, 92 S.Ct. 977, 30 L.Ed.2d 800 (1972); Bush v. State, 203 Kan. 494, 498-99, 454 P.2d 429 (1969). However, even those situations have rarely resulted in reversals. See, e.g., State v. Troy, 215 Kan. 369, 373, 524 P......
-
State v. Carter, 95,335.
...v. Boyd, 206 Kan. 597, 600-01, 481 P.2d 1015 (1971), cert. denied 405 U.S. 927, 92 S.Ct. 977, 30 L.Ed.2d 800 (1972); Bush v. State, 203 Kan. 494, 498-99, 454 P.2d 429 (1969). However, even in those situations, the giving of such an instruction has rarely resulted in a reversal. See, e.g., S......
-
State v. Nguyen
...v. Boyd, 206 Kan. 597, 600-01, 481 P.2d 1015 (1971), cert. denied 405 U.S. 927, 92 S.Ct. 977, 30 L.Ed.2d 800 (1972); Bush v. State, 203 Kan. 494, 498-99, 454 P.2d 429 (1969). However, Nguyen acknowledges that this court has declined to find that it is error to give the instruction prior to ......