Earwood v. State, 44751

• Decision Date: 08 April 1967
• Docket Number: No. 44751,44751
• Citation: 426 P.2d 151,198 Kan. 659
• Parties: Robert EARWOOD, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 151

426 P.2d 151

198 Kan. 659

Robert EARWOOD, Appellant, v. STATE of Kansas, Appellee.

No. 44751.

Supreme Court of Kansas.

April 8, 1967.

Syllabus by the Court

1. A defendant is not placed in double jeopardy for the same crime, if, after being convicted under a city ordinance for carrying a concealed weapon, he is later convicted under a state statute for possessing a firearm after conviction of a prior felony. (Following Lawton v. Hand, 186 Kan. 385, 350 P.2d 28.)

2. In a proceeding pursuant to K.S.A. 60-1507 it is held, (1) no facts were presented in the motion requiring a plenary hearing, (2) no error resulted in failing to appoint counsel in the lower court, and (3) the motion to vacate was properly denied.

Stephen M. Todd, Topeka, argued the cause and was on brief for appellant.

Robert D. Hecht, County Atty., argued the cause and Robert C. Londerholm, Atty. Gen., with him on brief for appellee.

FROMME, Justice.

Robert Earwood filed a motion to vacate sentence under K.S.A. 60-1507. The trial court considered this motion together with the handwritten 'supporting brief' furnished by Earwood. The motion was denied without a plenary hearing and counsel was not appointed to present or argue the matter before the trial court. This appeal is brought from a judgment denying the motion. Counsel has been appointed for the appellant in this court.

The appellant contends the court below erred (1) in holding he had not been placed in double jeopardy for the offense, and (2) in refusing to appoint counsel for him in the court below and in failing to hold a plenary hearing on his motion to vacate.

The trial court considering this motion was the court in which he was originally convicted. The judge examined the records of the court and issued a four page memorandum opinion denying the motion. Adequate legal authority on the question of double jeopardy was cited in the opinion. We will reexamine appellant's contentions urged by his court appointed counsel.

Appellant was arrested by the Topeka police. He was charged under city ordinances with drunkenness and carrying a concealed weapon. After entering pleas of guilty to both offenses he was fined $50.00 for drunkenness and was sentenced to 30 days in jail for carrying a concealed weapon. He served the 30 days and then he was picked up by the Shawnee county sheriff's officers. A charge had been filed against him under K.S.A. 21-2611. This is a state felony statute prohibiting possession of a pistol after conviction of a felony. Appellant was tried and convicted for this crime. He was sentenced to not more than five years in the penitentiary. This is the sentence he seeks to have vacated.

Appellant's first claim of error concerns his complaint that trial and sentence on possession of a pistol after conviction of a felony placed him in double jeopardy for the same crime for which he previously served the thirty day sentence. He was first convicted in the city police court of carrying a concealed weapon. It was this conviction under a city ordinance that justified 30 days in jail. The subsequent conviction was under a state statute prohibiting a person previously convicted of certain felonies from having possession of a pistol. Appellant was not placed in double jeopardy for the same crime.

The city and the state are separate sovereigns having...