State v. Bost, 72449

• Decision Date: 08 September 1995
• Docket Number: No. 72449,72449
• Parties: STATE of Kansas, Appellee, v. Gary BOST, Appellant.
• Court: Kansas Court of Appeals

Page 160

903 P.2d 160

21 Kan.App.2d 560

STATE of Kansas, Appellee, v. Gary BOST, Appellant.

No. 72449.

Court of Appeals of Kansas.

Sept. 8, 1995.

Syllabus by the Court

1. For crimes committed on or after July 1, 1993, a defendant "shall have 10 days after the judgment of the district court to appeal." K.S.A.1994 Supp. 22-3608(c). As was the case prior to July 1, 1993, the time for a notice of appeal commences from the date the sentence is orally pronounced from the bench, not the date of the filing of the journal entry.

2. There are no provisions in K.S.A.1994 Supp. 21-4603d which grant a defendant the right to file a motion requesting the court to modify his or her sentence. The legislature has revoked the ability to have one's sentence modified after sentencing.

3. K.S.A.1994 Supp. 21-4716(a) expressly determines the timing of a motion for a departure sentence. It states in part: "If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure." (Emphasis added.) There is no authority for a sentencing court to entertain a motion for departure from the presumptive sentence after sentence is imposed.

4. Appellate courts are without jurisdiction to consider appeals from a sentence entered for a felony committed after July 1, 1993, where the imposed sentence is within the range of the appropriate border box classification, such sentence of imprisonment or probation is the presumptive sentence for purposes of appeal and is not subject to appellate review. K.S.A.1994 Supp. 21-4704(a) and (f).

Thomas DeCoursey, Kansas City, for appellant.

Larry Hoffman, Assistant District Attorney, Nick A. Tomasic, District Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before ELLIOTT, P.J., GERNON, J., and D. KEITH ANDERSON, District Judge, assigned.

ANDERSON, Judge:

The facts in this case are for the most part undisputed. However, the sequence and timing of events are critical for jurisdictional purposes.

On September 20, 1993, Gary Bost was charged in Wyandotte County with one count of aggravated robbery, a severity level 3 person felony in violation of K.S.A.1993 Supp. 21-3427, for incidents occurring the previous day. Bost entered a plea of no contest to an amended charge of robbery, a severity level 5 person felony in violation of K.S.A.1993 Supp. 21-3426.

The presentence investigation (PSI) report prepared prior to sentencing indicated that Bost's conviction of robbery carried a crime severity level 5 ranking. Due to a multitude of DUI and DUI-related offenses, all misdemeanors, Bost's criminal history placed him in category H. The PSI report denoted that a placement of 5-H on the nondrug sentencing guidelines grid carried a presumptive sentencing range of 34 to 38 months' imprisonment.

The court sentenced Bost to 36 months' imprisonment on March 28, 1994. The court filed its journal entry of sentencing on April 11, 1994. The journal entry reflects that the court's decision mirrors the PSI report and found Bost to be classified as 5-H on the nondrug sentencing guidelines grid.

After the sentencing hearing on April 5, 1994, Bost filed a motion for modification of sentence and/or downward departure. Bost alleged he played a minor role in the crime, that the degree of harm to the victim was much less than in typical or common cases of this offense, and that he was no threat to society. Following a hearing on July 19, 1994, the district court filed an order July 25, 1994, denying Bost's motion.

Bost filed a notice of appeal on July 28, 1994. Bost appealed the sentence entered on March 28, 1994, and the denial of his motion to modify and/orgrant probation.

Standard of Review

All issues before the court are jurisdictionally determinable.

Resolving jurisdictional issues under the Kansas Sentencing Guidelines Act (KSGA), K.S.A.1994 Supp. 21-4701 et seq., involves the interpretation of various provisions. The interpretation of statutes is a question of law, and, thus, this court's scope of review is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).

Notice of Appeal

This court raised various jurisdictional issues and ordered parties to address them in their appellate briefs. The first jurisdictional issue involves the timeliness of Bost's notice of appeal. Bost argues that he timely filed his notice of appeal since the district court did not render final judgment until it ruled on his motion to modify.

"The filing of a timely notice of appeal is jurisdictional." State v. Moses, 227 Kan. 400, Syl. p 8, 607 P.2d 477 (1980). "The right to appeal is entirely statutory and not a right vested in the United States or Kansas Constitutions. Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by applicable statutes." State v. Neer, 247 Kan. 137, Syl. p 1, 795 P.2d 362 (1990).

With the implementation of the sentencing guidelines in 1993, the time in which a defendant may appeal judgments of the district court underwent a drastic change. K.S.A.1994 Supp. 22-3608 provides in full:

"(a) If sentence is imposed, the defendant may appeal from the judgment of the district court not later than 10 days after the expiration of the district court's power to modify the sentence. The power to revoke or modify the conditions of probation or the conditions of assignment to a community correctional services program shall not be deemed power to modify the sentence. The provisions of this subsection shall not apply to crimes committed on or after July 1, 1993.

"(b) If the imposition of sentence is suspended, the defendant may appeal from the judgment of the district court within 10 days after the order suspending imposition of sentence. The provisions of this subsection shall not apply to crimes committed on or after July 1, 1993.

"(c) For crimes committed on or after July 1, 1993, the defendant shall have 10 days after the judgment of the district court to appeal." (Emphasis added.)

In the case before the court, the district court imposed sentence on March 28, 1994. Bost filed a motion to modify the sentence on April 5, 1994. The court denied the motion to modify the sentence on July 25, 1994. On July 28, 1994, exactly four months following the court's imposition of sentence from the bench, Bost filed his notice of appeal.

Bost argues K.S.A.1994 Supp. 22-3608(c) limits appeals from a judgment; but K.S.A.1994 Supp. 22-3601(a) expressly permits appeal from a "final judgment." Consequently, Bost argues that since the district court considered arguments and issued a ruling on his post-sentencing motions, no final judgment was entered until the court denied his motion to modify on July 25, 1994. Under such a scenario, had Bost committed the crime in this case prior to July 1, 1993, his notice of appeal would then be timely since it was filed within 10 days of the denial of the motion to modify.

Bost's argument fails to take into consideration some of the general rules of statutory construction:

"Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained." West v. Collins, 251 Kan. 657, Syl. p 3, 840 P.2d 435 (1992).

Additionally, "[w]hen a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be." Martindale v. Tenny, 250 Kan. 621, Syl. p 2, 829 P.2d 561 (1992).

The legislature makes its intentions very clear in K.S.A.1994 Supp. 22-3608. The language could not be any more plain and unambiguous. For crimes committed on or after July 1, 1993, subsections (a) and (b) "shall not apply." K.S.A.1994 Supp. 22-3608(a), (b). The legislature unquestionably intended to rescind the old law for crimes committed after the effective date of the sentencing guidelines. "It is ... presumed that the legislature acts with full knowledge as to judicial decisions on prior law. [Citation omitted.]" State v. Trudell, 243 Kan. 29, 34, 755 P.2d 511 (1988).

For crimes committed on or after July 1, 1993, a defendant "shall have 10 days after the judgment of the district court to appeal." K.S.A.1994 Supp. 22-3608(c). As was the case prior to July 1, 1993, the time for a notice of appeal commences from the date the sentence is orally pronounced from the bench, not the date of the filing of the journal entry. State v. Moses, 227 Kan. at 403-04, 607 P.2d 477.

It is obvious in the case presently before the court that Bost's attorney hoped to fall within the language of K.S.A.1994 Supp. 22-3608(a), which allows an appeal within 10 days of the court's denial of a motion to modify. However, under K.S.A.1994 Supp. 22-3608(c), Bost has filed an untimely notice of appeal since he failed to file within 10 days of the court's imposition of sentence. The filing of a timely notice of appeal is jurisdictional, and the district court cannot confer appellate jurisdiction on this court.

This case could be considered an exception to the above rule pursuant to the authority of State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982). The Ortiz court held that while the timely filing of a notice of appeal is jurisdictional, an exception has been recognized in cases where a defendant either was not informed of his or her rights to appeal, was not furnished an attorney to exercise those rights, or was furnished an attorney for that purpose who failed to perfect and complete an appeal. However, Bost makes no claims of ineffective assistance of counsel. Even if that claim had been made, it will not be necessary for this court to remand this...