City of Overland Park v. Barnett

• Decision Date: 29 August 1985
• Docket Number: No. 57353,57353
• Parties: CITY OF OVERLAND PARK, Kansas, Appellee, v. Norman BARNETT, Appellant.
• Court: Kansas Court of Appeals

Page 564

705 P.2d 564

10 Kan.App.2d 586

CITY OF OVERLAND PARK, Kansas, Appellee, v. Norman BARNETT, Appellant.

No. 57353.

Court of Appeals of Kansas.

Aug. 29, 1985.

Syllabus by the Court

K.S.A.1984 Supp. 22-3609(4) is hereby interpreted to require that, no later than 48 hours before trial, some document demanding a jury trial be on file which contains a written request directed to the court's attention or that a timely oral request be made and shown of record.

J. Steven Schweiker, Overland Park, for appellant.

Karen Arnold-Burger, Asst. City Atty., for appellee.

Before REES, P.J., and PARKS and MEYER, JJ.

MEYER, Judge:

This is an appeal by a defendant from a decision of the Johnson County District Court refusing to reinstate defendant's appeal from a speeding conviction.

On May 10, 1984, Norman L. Barnett, defendant, was stopped by a City of Overland Park police officer for speeding 40 mph through a 25 mph school zone. On July 11, 1984, a trial was held in the Municipal Court of Overland Park, Kansas, on the charge against defendant. The court heard the evidence and found defendant guilty. Defendant was thereafter ordered to pay a fine of $45.00.

From the decision of the municipal court, the defendant appealed to the District Court of Johnson County. At the docket call before the court on July 25, 1984, the court asked defense counsel whether this case would be tried to the court or a jury. Counsel responded that he wanted the court to hear the matter, but added that he reserved the right to request a jury trial. The court thereafter set the matter for trial to the court on August 2, 1984, at 10:30 a.m.

Defense counsel mailed a Demand for Jury Trial on July 31, 1984, which was filed in the Johnson County District Court Clerk's office on August 1, 1984, at 11:13 a.m., less than twenty-four hours before the scheduled trial on the matter.

On August 2, 1984, the city prosecutor appeared at the scheduled trial and, when both the defendant and his counsel failed to appear, requested the court dismiss the appeal. The Court stated, "The record does reflect a demand for jury trial was filed August 1, 1984, at 11:13 a.m., which is not 48 hours prior to trial. The plaintiff is ready for trial. And accordingly, the Court must sustain the motion. The case will be dismissed and remanded to the Municipal Court."

Defendant filed a motion to reinstate his appeal on August 8, 1984. On August 24, 1984, a hearing on this motion was held. The court ruled that it was questionable whether a Demand for Jury Trial mailed before the 48-hour deadline but not received until after the deadline was timely, but it ruled that the failure of both defendant and defendant's counsel to appear at the August 2, 1984, hearing was grounds for dismissal under K.S.A. 22-3405(2). On August 28, 1984, the district court overruled defendant's motion and remanded the case to the municipal court for "execution on the sentence originally imposed." From this decision, the defendant appeals.

Defendant first raises the issue of whether or not the district court had discretion to dismiss his appeal because of his failure to appear at the scheduled trial to the court. The trial court determined that K.S.A.1984 Supp. 22-3609(4) requires a Demand for Jury Trial be filed with the court no later than 48 hours prior to trial, and that, as a result, defendant was late in filing his demand and the August 2 hearing was for trial and not merely to reschedule a time for jury trial. Accordingly, the court ruled, the defendant or his counsel was required to be present under K.S.A. 22-3405(2). Regardless of the construction of a statute made by a trial court, on appeal the statute may be construed and its legal effect determined by the appellate court.

K.S.A. 22-3405(2) provides as follows:

"(2) The defendant must be present, either personally or by counsel at every stage of the trial of a misdemeanor case."

This statute is concerned specifically with the presence of defendant at the trial of misdemeanor cases. Its language and meaning is clear: defendant or counsel must appear at every stage of the trial. We must determine whether this statute mandates the presence of defendant or counsel and without their appearance the case against defendant may be dismissed or, whether, without the appearance of defendant or counsel, no further proceedings therein may occur.

City of Wichita v. Catino, 175 Kan. 657, 265 P.2d 849 (1954), involved facts closely parallel to those of the instant case. In Catino, a defendant appealed his convictions from the police court of the City of Wichita to the district court. At the scheduled appeal date the defendant made no appearance either in person or by attorney and the city appeared and announced it was ready for trial. The district court dismissed the appeal for lack of prosecution on its own motion. On appeal, our Supreme Court ruled that a district court's dismissal of a case for failure of a defendant to prosecute his appeal is a matter within the trial court's discretion. The absence of defendant or counsel did not prohibit any further proceedings regarding the appeal. Although Catino was decided upon the court's inherent power to dismiss an appeal and predated the current statute, K.S.A. 22-3405(2), adopted in 1970, we note that our Supreme Court has not deviated from this position. See Coutts v. Crider, 219 Kan. 692, 698, 549 P.2d 1019 (1976). Therefore, as the right to appeal is not a constitutional right but is entirely statutory, see City of Overland Park v. Barron, 234 Kan. 522, 672 P.2d 1100 (1983); City of Overland Park v. Nikias, 209 Kan. 643, 498 P.2d 56 (1972), and because in the present case, neither defendant nor defense counsel appeared at the appointed time, we find no abuse of discretion by the trial court.

Defendant claims, however, that defense counsel's filing of a request for jury trial and counsel's phone calls to the city prosecutor and the court administrator's office to advise them of such made the trial on August 2, 1984, unnecessary, and so negated any need for compliance with K.S.A. 22-3405(2).

Although defense counsel phoned the city prosecutor on July 30, 1984, only a message that counsel had called was left in her office. Defense counsel made no other attempts to reach the prosecutor, nor did he leave a sufficient message regarding the purpose of his call. Regarding a phone call to the court advising it of defendant's intention to have a jury trial, the district court judge himself never received a phone call. Although a check of the matter after the fact revealed a phone call was made, the record reveals it was not made until July 31, 1984, and then was made to the court administrator's office and not the judge's office. Thus, on August 2, 1984, neither the city prosecutor nor the district court judge knew of any reason why defendant and his counsel were absent. No request for a continuance was ever made by defendant. And although both judge and prosecutor were eventually apprised of defendant's filing of a Demand for Jury Trial, at that time both thought the request was filed too late since neither had been told counsel believed he had mailed the request within the statutory time limit and thus was operating under the belief his request was timely.

Defendant's attempt to circumvent the language of K.S.A. 22-3405(2) by claiming that, due to his Demand for Jury Trial, the August 2 appearance would have been only for the purpose of setting the matter for trial to a jury at a future date is without merit. Defendant analogizes this case to certain stages of felony cases where courts have stated a defendant's presence is not statutorily required under K.S.A. 22-3405(1). See Deschenes v. United States, 224 F.2d 688 (10th Cir.1955); State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983); State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982); State v. Sanders, 227 Kan. 892, 610 P.2d 633 (1980).

The cases cited to by defendant, however, are all felony cases concerning a defendant's absence when his counsel is present at in-chambers conferences. The instant case is inapposite. First, counsel has not shown that the inroads by the courts into a defendant's required appearance at stages of felony trials have been made in misdemeanor cases. In this regard it should be noted that in K.S.A. 22-3405(1) the wording of the statute is such that it plainly states there are exceptions to the necessity of a defendant's presence. In K.S.A. 22-3405(2), however, there is no such wording indicating the legislature intended any exceptions. Second, the cases cited by defendant all concern in-chambers conferences. The trial scheduled for August 2 was not in any way an "in-chambers" conference regarding issues of law. Third, even assuming defendant's request for jury trial was timely filed, this still does not explain why defendant's counsel did not appear at the appointed time. In all the cases cited by defendant, counsel was always present even though the particular defendant may have been absent. Thus, attempts by defendant to analogize the precise issue present in this case to in-chambers conferences in felony cases is inappropriate.

Thus, if the defendant's Demand for Jury Trial was not timely filed, the August 2, 1984, trial would have clearly been a "stage of the trial" such that defendant's presence would have been statutorily required. Even if the demand was timely, however, the case was not automatically continued to the court's next docket call. Cases are only continued upon request by a party to an action and by the sound discretion of the court. See K.S.A. 22-3401. Moreover, had defendant's demand been timely, a jury could have been summoned and proceedings could have begun on August 2. As K.S.A. 22-3405(2) states, defendant or counsel must appear at every stage of the trial. There are no listed exceptions, thus, defendant's failure to appear was a proper ground for dismissal of the action.

The...