Smith v. State
| Decision Date | 13 May 1967 |
| Docket Number | No. 44809,44809 |
| Parties | Myron Dean SMITH, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
K.S.A. 60-1507 is the exclusive statutory remedy authorizing a prisoner in custody under sentence of a court of general jurisdiction to make a collateral attack upon the sentence, and K.S.A. 60-260 is not available to him for this purpose, even though K.S.A. 60-1507 is inadequate and ineffective.
Orville J. Cole, Garnett, argued the cause and was on the brief, for appellant.
Wayne Loughridge, County Atty., argued the cause, the Robert C. Londerholm, Atty. Gen., was with him on the brief, for appellee.
By this action the petitioner, who is in custody of the Warden of the Kansas State Penitentiary serving sentences for the commission of crime, seeks to attack the validity of a judgment and sentence by proceeding under K.S.A. 60-260(b), since K.S.A. 60-1507 is inadequate and ineffective.
The trial court denied the petitioner's motion on the ground that 60-1507, supra, was the petitioner's exclusive remedy, and K.S.A. 60-260 does not apply. The petitioner's motion asking that he be brought before the sentencing court for an evidentiary hearing was also denied by the trial court. Appeal has been duly perfected from these adverse orders.
On the 9th day of April, 1965, the petitioner was represented by counsel of his own choosing and entered a plea of guilty to the charge of burglary in the second degree, as defined by K.S.A. 21-520, after the county attorney dismissed counts 1, 2 and 4 of the information. He was sentenced to the Kansas State Penitentiary for a period of not less than five nor more than ten years pursuant to K.S.A. 21-523.
The record discloses a previous application by the petitioner for relief under K.S.A. 60-1507 was denied because he was serving time on other sentences and therefore entitled to no relief. (King v. State, 195 Kan. 736, 408 P.2d 599.) (The maximum release date on a sentence from the district court of Reno County is July 11, 1970, and the maximum release date on a sentence under the district court of Gove County is December 13, 1969.)
Here the petitioner's application for relief under the provisions of K.S.A. 60-260 alleges that his plea of guilty to second degree burglary was involuntarily entered because of threats and coercion on three counts which he specifically sets forth.
Assuming these allegations would be sufficient to require an evidentiary hearing under a proceeding initiated pursuant to K.S.A. 60-1507, can this proceeding under K.S.A. 60-260 be maintained where relief under 60-1507, supra, is inadequate and ineffective?
The appellant contends because he is foreclosed from the use of 60-1507, supra, by reason of former convictions and sentences, he is entitled to resort to the use of K.S.A. 60-260(b) which leaves all avenues of relief open to the sentencing judge.
Article 2 of the new code of civil procedure has a prefatory section (K.S.A. 60-201) pertaining to the scope of the article. It reads:
'This article governs the procedure in the district courts of Kansas and original proceedings in the supreme court in all suits of a civil nature whether cognizable as cases at law or in equity with the exceptions stated in section 60-265.'
K.S.A. 60-260 is a part of Article 2.
The exceptions noted in the above quotation do not help the appellant. Section 60-260, supra, pertains to relief from judgment or order. Subsection (b) provides in part:
The source of law for 60-260, supra, is that part of the old code of civil procedure which appears in G.S.1949, 60-3007 to 60-3009. The new provision has some differences but basically it provides relief under the same circumstances. A search of the cases interpreting and applying the provisions of the old code do not reveal any times in which the provisions were used in criminal cases.
A line of cases involving writs of error coram nobis, beginning with State v. Calhoun, 50 Kan. 523, 32 P. 38, 18 L.R.A. 838, and extending to State v. Chance, 187 Kan. 27, 353 P.2d 516, might be considered as cases dealing with a similar situation to that alleged by the appellant in the instant case, but writs of error coram nobis are abolished by the legislature in 60-260, supra. For a discussion of writs of error coram nobis in Kansas cases, see State v. Miller, 161 Kan. 210, 166 P.2d 680. Apparently the only case in which the writ of error coram nobis was successfully used by a prisoner undergoing confinement in a criminal case was State v. Calhoun, supra.
Chapter 62, K.S.A., deals generally and specifically with procedure governing the trial of criminal case...
To continue reading
Request your trial
-
McIntyre v. McKune
...for certain sentencing issues, see Kan. Stat. Ann. § 22-3504) when a prisoner is in custody under a sentence, see Smith v. State, 199 Kan. 132, 427 P.2d 625, 627 (1967), and a petition under that section must be filed in the sentencing court. § 60-1507(a). Applicant makes no claim, much les......
-
State v. Kingsley
...statutory remedy for a collateral attack on a criminal conviction and sentence. 297 Kan. at 121–23, 298 P.3d 349; see Smith v. State, 199 Kan. 132, 135, 427 P.2d 625 (1967) (holding K.S.A. 60–1507 is “the exclusive statutory remedy authorizing a prisoner in custody under sentence of a court......
-
State v. Mitchell, 107,022.
...void his 16-year-old conviction for felony murder. Mitchell acknowledges that the current caselaw, specifically Smith v. State, 199 Kan. 132, 135, 427 P.2d 625 (1967), clearly establishes that K.S.A. 60–1507 is the exclusive remedy for a prisoner to collaterally attack a conviction and sent......
-
In re Elnicki, 107,107.
...has consistently held that the provisions of 60–260(b) do not apply to criminal convictions, adult or juvenile. See Smith v. State, 199 Kan. 132, 135, 427 P.2d 625 (1967); Abel v.. State, Nos. 103,381, 103,706, 2011 WL 3795240, at *6 (Kan.App.2011) (unpublished opinion), rev. denied March 9......