City of Derby v. Lackey
Decision Date | 28 October 1988 |
Docket Number | No. 61854,61854 |
Citation | 763 P.2d 614,243 Kan. 744 |
Parties | The CITY OF DERBY, Appellant, v. Richard L. LACKEY, Appellee. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. K.S.A. 22-3402, the speedy trial statute, applies to both misdemeanors and felonies.
2. When a misdemeanor case has been dismissed and the charges refiled, the time between the dismissal and a subsequent K.S.A. 22-3205 first appearance is to be disregarded in determining whether the time periods mandated by the speedy trial statute, K.S.A. 22-3402, have elapsed.
Randy Elam, of Ratner, Mattox, Ratner, Kinch & Brimer, P.A., Wichita, argued the cause, and Bruce A. Swenson, of the same firm, was on the brief, for appellant.
Geary N. Gorup, of Moore & Rapp, P.A., Wichita, argued the cause, and Leslie F. Hulnick, of Law Offices of Leslie F. Hulnick, Wichita, was with him on the brief, for appellee.
This is a misdemeanor speedy trial case which originated in the municipal court. The City of Derby appeals the district court's dismissal of the offense of driving under the influence of alcohol filed against the defendant Richard Lackey in municipal court. The initial dismissal in the municipal court was based on failure of the City to provide a speedy trial.
The City appealed the municipal court dismissal to the district court.
The single issue for this court is: Did the district court err in determining that Lackey's speedy trial rights were violated?
In our view the trial court was in error; consequently, we reverse.
The appeal is based on the following stipulated facts
The trial court ruled that the entire time period from February 25, 1987, to August 19, 1987, was chargeable to the City, together with the time from September 11, 1987, to October 21, 1987. The trial court found the two periods totaled 217 days. No deduction was made for the time lapse between each discharge and refiling and between refiling and first appearance. The time from August 19 to September 11, a continuance requested by Lackey, was held as chargeable to Lackey.
Lackey was not incarcerated at any time; thus, the parties agree that the State has 180 days to try Lackey. K.S.A. 22-3402(2). They disagree on which dates are to be included in that time period.
The trial court, in computing the days remaining for a speedy trial, included all the days between dismissal and refiling and between refiling and the first appearance. The speedy trial statute applies to both misdemeanors and felonies. State v. Ransom, 234 Kan. 322, 673 P.2d 1101 (1983), cert. denied 469 U.S. 818, 105 S.Ct. 88, 83 L.Ed.2d 34 (1984); State v. Taylor, 3 Kan.App.2d 316, 594 P.2d 262 (1979); Annot., Application of Speedy Trial Statute to Dismissal or Other Termination of Prior Indictment or Information and Bringing of New Indictment or Information, 39 A.L.R. 4th 899. Since a preliminary hearing is not required in misdemeanor cases, it is generally at the first appearance that a misdemeanor defendant is arraigned. State v. Taylor, 3 Kan.App.2d at 320, 594 P.2d 262. This is true provided the requirements for an arraignment (K.S.A. 22-3205) are met at the first appearance. 3 Kan.App.2d at 320, 594 P.2d 262. Under the Ransom rule, in a misdemeanor case, only the time periods between the first appearance and dismissal and between first appearance and trial are to be included.
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