City of Wichita v. Mesler, 55115
| Decision Date | 28 July 1983 |
| Docket Number | No. 55115,55115 |
| Parties | The CITY OF WICHITA, Kansas, A Municipal Corporation, Appellee, v. Philip J. MESLER, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The right of appeal is entirely a statutory right; no appellate review is required by the Constitution of the United States or the Constitution of the State of Kansas.
2. The statute authorizing appeals from the municipal courts to the district courts is K.S.A. 22-3609.
3. The requirement of subsection (2) of K.S.A. 22-3609, that a notice of appeal must be filed within ten days of the date of the judgment appealed from, is jurisdictional in nature. The failure to properly and timely file a notice of appeal is thus a jurisdictional defect, which cannot be waived by the courts.
4. Subsection (1) of K.S.A. 22-3609 defines those judgments of the municipal court which may be appealed to the district court. To be appealable, a judgment must meet one of two criteria: It must be one which either "adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas" or "imposes a sentence of fine or confinement or both."
5. An order by a municipal court, reducing a legal sentence which was imposed by that court at some earlier date, is not itself a new sentence, but is instead simply a modification of the existing sentence. Such an order does not impose a sentence of fine or confinement or both, and so is not an appealable judgment under K.S.A. 22-3609.
6. In an appeal from a conviction of driving under the influence of liquor, the record is examined, and it is held, that the district court did not err in dismissing defendant's appeal from the municipal court.
Kiehl Rathbun, Wichita, for appellant.
John Dekker and Douglas J. Moshier, Wichita, for appellee.
Before ABBOTT, P.J., and SWINEHART and MEYER, JJ.
Defendant-appellant Phillip J. Mesler (defendant) brings this appeal from an order of the District Court of Sedgwick County, Kansas, dismissing his appeal to that court from the Municipal Court of the City of Wichita, Kansas.
On July 24, 1981, defendant was convicted in the Municipal Court of the City of Wichita, Kansas, of the offense of driving under the influence of liquor, contrary to Section 11.38.150(a) of the Wichita City Code.
On August 28, 1981, he was sentenced to a term of 30 days in jail, fined $150.00, and taxed $10.50 as costs. The judge thereupon paroled defendant from the imprisonment and from $50.00 of the fine, and imposed restrictions on his driver's license for sixty days.
Defendant filed with the municipal court his notice of appeal from this conviction and sentence on September 9, 1981. It showed plainly on its face that it was out of time, pursuant to the ten-day rule of K.S.A. 22-3609(2). For this reason, it was not accepted by the clerk. It is not with this rejection of his appeal to the district court that defendant takes issue.
At some later time, exactly when is unclear, defendant verbally requested the municipal court to make a modification in his sentence. This motion was heard on March 2, 1982, before a different municipal judge than had presided at defendant's trial. The municipal court on that date "modified" defendant's sentence by reducing the fine $10.00 and by extending the date on which the fine was due. The court specifically denied defendant's request for "resentencing."
Defendant filed with the municipal court a notice of appeal from the March 2 order on that same day. The City responded with a motion to dismiss, directed to the district court, alleging that the appeal was out of time. On August 16, 1982, that motion came on for hearing in the district court. On that date, the district court sustained the City's motion, and dismissed defendant's appeal as untimely. It is with this dismissal by the district court of his appeal from his sentence in the municipal court, that defendant takes exception.
The single issue on this appeal is whether the municipal court's order of March 2, 1982, which modified defendant's original sentence by reducing it, renewed defendant's right to appeal from his original conviction. It is conceded that defendant's first attempt at appeal was properly dismissed.
Relevant case law makes it apparent that if defendant is to have a right to appeal, that right must be granted by some statute.
State v. Smith, 223 Kan. 47, 48, 574 P.2d 161 (1977).
The statute authorizing appeals from the municipal courts to the district courts is K.S.A. 22-3609 (since amended), which, at the time of defendant's motion, provided as follows, in pertinent part:
The cases interpreting the above statute consistently hold that the requirement of subsection (2), that a notice of appeal must be filed in the municipal court within 10 days of the date of the judgment appealed from, is jurisdictional in nature. The failure to properly and timely file a notice of appeal is thus a jurisdictional defect, which cannot be waived by the courts. City of Bonner Springs v. Clark, 3 Kan.App.2d 8, 10, 588 P.2d 477 (1978), and City of Overland Park v. Nikias, 209 Kan. 643, 648, 498 P.2d 56 (1972).
Subsection (1) of K.S.A. 22-3609 defines those judgments of the municipal court which may be appealed to the district court. To be appealable, a judgment must meet one of two criteria: It must be one which either "adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas ..." or "imposes a sentence of fine or confinement or both." Thus, to be appealable, the municipal court's order of March 2, 1982, must meet one of these criteria. The March 2 order does not adjudge defendant guilty of any crime; that action occurred on July 24, 1981. The question remaining is whether the March 2 order "imposes a sentence of fine or...
To continue reading
Request your trial