City of Elkhart v. Bollacker

• Decision Date: 08 July 1988
• Docket Number: No. 61581,61581
• Citation: 243 Kan. 543,757 P.2d 311
• Parties: CITY OF ELKHART, Appellant, v. Lanning BOLLACKER, Appellee.
• Court: Kansas Supreme Court

Page 311

757 P.2d 311

243 Kan. 543

CITY OF ELKHART, Appellant, v. Lanning BOLLACKER, Appellee.

No. 61581.

Supreme Court of Kansas.

July 8, 1988.

Syllabus by the Court

K.S.A. 22-3402, which provides a statutory right to a speedy trial to any person charged with a crime, is applicable to criminal cases which have been appealed to the district court from municipal court. City of Overland Park v. Fricke, 226 Kan. 496, 601 P.2d 1130 (1979). This is true even though the defendant has neither been arrested nor required to post bond, but has merely been served with a notice to appear.

William J. Graybill, of Graybill & Richardson, Elkhart, argued the cause and was on the brief, for appellant.

Kurt W. Ratzlaff, Garden City, argued the cause, and John D. Osborn, of Calihan, Brown, Osborn, Burgardt & Wurst, Garden City, was on the brief, for appellee.

MILLER, Justice:

The City of Elkhart appeals from an order of the district court of Morton County dismissing this case because the defendant, Lanning Bollacker, was not brought to trial within 180 days from the date of certification and filing of the municipal court transcript in the district court. Two issues are raised: (1) Does K.S.A. 22-3402(2) apply to a defendant who is charged with a violation of a municipal ordinance and who has neither been in custody nor required to post an appearance bond; and (2) was the delay in this case partially the fault of the defendant?

The facts are not disputed. On January 2, 1987, the City of Elkhart filed a complaint in municipal court charging Lanning Bollacker with the unlawful discharge of a firearm within the City on New Year's Day, 1987. Bollacker was served with the complaint and a notice to appear. He appeared, was tried, and was found guilty and fined $50. He filed a notice of appeal to the district court. The record was certified by the municipal court and was filed in the office of the clerk of the district court on February 24, 1987. A few days later, defendant's attorney wrote to the judge of the municipal court inquiring whether an appearance bond was necessary; there was no response, and consequently no appearance bond was ever filed.

On March 6, 1987, defense counsel asked that the trial be set for March 30. The city prosecutor responded that his witnesses would not be available on that date, and trial was not set. In mid-August, defense counsel advised the prosecutor that he could not try the case for two weeks; within this time frame, however, he also notified the prosecutor that he would have to withdraw. On August 25, defense counsel wrote to the district judge, asking leave to withdraw. Also on August 25, 181 days after the record was certified and filed, the case was set for trial on September 3. New counsel for the defendant appeared and moved to dismiss pursuant to K.S.A. 22-3402(2). On September 17, the trial court dismissed for failure to bring defendant to trial within 180 days as required by statute. The City appeals.

Unless there is good reason to believe that the accused person will not appear in response to a notice to appear, a notice to appear is issued in municipal court proceedings. See K.S.A. 12-4203 and -4206. The form of notice to appear prescribed in our statutes contains a place for the accused to sign, agreeing that he or she will appear in court at the time and place specified. See K.S.A. 12-4204 and K.S.A.1987 Supp. 12-4205. The record in this case does not contain the original complaint or the notice to appear, and thus we are not advised whether Bollacker agreed in writing to appear. However, there is nothing before us to suggest that he ever failed to appear as required.

We turn to the first issue. K.S.A. 22-3402(2) provides:

"If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3)."

Subsection 3 provides exceptions to the time limits where a defendant is incompetent; where a proceeding to determine his competency to stand trial is pending; where material evidence is unavailable; or where, because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed by the statute. None of these exceptions are applicable here.

Bollacker, as we noted above, was not required to post a bond; he was simply notified to appear. In the case of City of Overland Park v. Fricke, 226 Kan. 496, 601 P.2d 1130 (1979), we held that K.S.A. 22-3402(2) is applicable to criminal cases appealed to the district court from municipal court. We said:

"We hold that in district court cases involving appeals from municipal courts, the time limitations provided in K.S.A. 1977 Supp. 22-3402 shall commence to run from the date the appeal is docketed in district court or at the expiration of the time the appeal should have been docketed under the time schedule set forth in K.S.A. 1977 Supp. 22-3609(3), whichever occurs first. This holding places a duty on the city to see that the appeal is docketed in a timely fashion. The time limitations for trial in district court should commence to run when there is, or should be, a complaint against the defendant pending in the district court." 226 Kan. at 502, 610 P.2d 1130.

Fricke, unlike Bollacker, was required to post an appearance bond. We do not find the distinction important. As we noted in Fricke, the legislature intended that persons charged with crime should be granted a prompt and speedy trial. In State v. Brockelman, 173 Kan. 469, 249 P.2d 692 (1952), cited in Fricke, 226 Kan. at 501, 601 P.2d 1130, we noted that the speedy trial statute was intended to prevent the...