State v. Calderon

• Decision Date: 26 March 1983
• Docket Number: No. 54364,54364
• Citation: 233 Kan. 87,661 P.2d 781
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Frank D. CALDERON, Appellant.

Page 781

661 P.2d 781

233 Kan. 87

STATE of Kansas, Appellee, v. Frank D. CALDERON, Appellant.

No. 54364.

Supreme Court of Kansas.

March 26, 1983.

Syllabus by the Court

1. Three elements must be present to bar a subsequent prosecution under K.S.A. 21-3108(2)(a ). First, the prior prosecution must have resulted in a conviction or acquittal, second, evidence of the present crime must have been introduced in the prior prosecution, and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case.

2. For K.S.A. 22-2603 to apply, an overt act must occur in one county and the effects of such overt act, which are necessary to complete the crime, must occur in another county.

3. Evidence presented by the prosecution to show that there is a factual basis for a plea of nolo contendere as required by K.S.A. 22-3210(4) which establishes the elements of the crime charged is not sufficient to bring the double jeopardy provisions of K.S.A. 21-3108(2)(a ) into play.

4. The constitutional protection of a speedy trial attaches when one becomes accused and the criminal prosecution begins.

5. In determining whether a criminal defendant has been deprived of his right to speedy trial a court should consider the length of the delay, the reasons for the delay, the defendant's assertion of his right to speedy trial and the prejudice resulting to the defendant.

6. To obtain the benefit of speedy trial provided by section 10 of the Kansas Bill of Rights, as legislatively defined by the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq., it is incumbent upon the accused incarcerated in a penal institution of this state to comply with all provisions of the act, including the preparation of his written request for disposition of detainer to be addressed to the court in which the charge is pending against him and to the county or district attorney charged with the duty of prosecuting it.

7. Where an inmate fails to assert his right of speedy trial under the provisions of the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq., it is deemed to have been waived.

8. The provisions of K.S.A. 21-4614 are mandatory and require a sentencing court to give a defendant credit for time spent in jail solely on account of the offense for which the defendant is being sentenced. Paul D. Post, Topeka, argued the cause and was on the brief for appellant.

John D. Watt, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

SCHROEDER, Chief Justice:

This is a criminal action in which Frank D. Calderon (defendant-appellant) appeals a conviction of aggravated sodomy (K.S.A. 21-3506) from the district court of Pottawatomie County. The appellant contends the trial court erred in refusing to sustain his motion to dismiss on the grounds that this prosecution violated the double jeopardy provisions of K.S.A. 21-3108(2)(a) and his constitutional right to a speedy trial, and that he is entitled to credit under K.S.A. 21-4614 for the time served from the date of his arrest on that charge.

The evidence in the record reveals that the appellant forcibly placed an eleven-year-old boy in his car in Manhattan, Riley County, Kansas, and drove to a farm near Manhattan, located in Pottawatomie County. There the appellant performed sodomy on the boy. The appellant then drove the boy back to Manhattan where he was released.

The next day, on August 20, 1980, the appellant was charged with kidnapping and aggravated sodomy in the district court of Riley County. On September 8, 1980, the aggravated sodomy charge was dismissed without prejudice on a motion by the State. On September 17, 1980, the appellant was charged with aggravated sodomy in the district court of Pottawatomie County.

On December 8, 1980, the appellant entered a plea of nolo contendere to the kidnapping charge in Riley County. The appellant was sentenced to the state penitentiary at Lansing.

On September 2, 1981, the appellant was returned from the state penitentiary to Pottawatomie County to answer the charge of aggravated sodomy, and was arraigned on September 17, 1981, exactly one year after the charge was first filed in Pottawatomie County. On October 9, 1981, the trial court heard the appellant's motion to dismiss, which alleged violations of K.S.A. 21-3108(2)(a ) (double jeopardy), K.S.A. 22-3402 (right to speedy trial), and K.S.A. 22-4301, et seq. (Uniform Mandatory Disposition of Detainers Act). The motion was overruled. The matter was tried to the court on October 27, 1981, with evidence being presented upon stipulation of the parties by the county attorney. No evidence was presented by the appellant. The trial court found the appellant guilty of aggravated sodomy. In imposing sentence the court gave the appellant credit for the time spent in jail on the Pottawatomie County charge from September 2, 1981, through October 27, 1981. This appeal followed.

The first issue on appeal concerns the double jeopardy provisions of K.S.A. 21-3108(2)(a ), which provides:

"A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:

"(a ) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely ...."

The appellant contends the Pottawatomie County prosecution is barred because evidence concerning the sodomy charge was admitted during the proceeding before the Riley County court at which the appellant entered his plea of nolo contendere to the kidnapping charge. The "evidence" the appellant relies on in support of his claim of double jeopardy consists of the following statement made by the Assistant Riley County Attorney in response to the court's inquiry concerning the factual basis for the kidnapping charge:

"Your Honor, I don't think there's any question that there's a factual basis for the plea... Basically the State's evidence would show that this defendant, who [was] identified at the preliminary hearing, did pick up [the victim] by force--actually removing him from his bicycle and then putting him into an automobile, taking him outside this county, over to Pottawatomie County where the State had alleged that he had performed aggravated sodomy on the boy."

Three elements must be present to bar a subsequent prosecution under K.S.A. 21-3108(2)(a ). First, the prior prosecution must have resulted in a conviction or acquittal, second, evidence of the present crime must have been introduced in the prior prosecution, and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case. State v. Mahlandt, 231 Kan. 665, Syl. p 2, 647 P.2d 1307 (1982); In re Berkowitz, 3 Kan.App.2d 726, 602 P.2d 99 (1979).

The State maintains the Pottawatomie County prosecution was not barred for the reasons that the sodomy charge could not have been charged as an additional count in the Riley County prosecution because venue was improper there, and that K.S.A. 21-3108(2)(a ) requires that evidence of the subsequent prosecution must have been admitted at a former trial, and is inapplicable where the prior conviction is based upon a plea of guilty or nolo contendere.

The resolution of this issue requires us to first determine whether the aggravated sodomy charge could have been brought as an additional charge in Riley County. The general rule is that venue exists in the county where the crime was committed. K.S.A. 22-2602. An exception to this rule appears in K.S.A. 22-2603, which states:

"Where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur."

Construing this language as it appeared in the then existing venue statute, K.S.A. 62-404 (Corrick), the court in Addington v. State, 199 Kan. 554, 563, 431 P.2d 532 (1967), held that for the statute to apply an overt act must occur in one county and the effects of such overt act, which are necessary to complete the crime, must occur in another county.

The State contends the act of kidnapping was not essential or necessary to the act of aggravated sodomy as set forth in K.S.A. 21-3506(b ), as that section requires only that sodomy be committed with a child under the age of sixteen years, and does not require that the sodomy be committed with force or threat of force, as is provided in K.S.A. 21-3506(a ). The State relies in part on State v. Korbel, 231 Kan. 657, 660, 647 P.2d 1301 (1982), wherein the defendant claimed venue was not proper for a prosecution for rape in Sedgwick County, where the victim was kidnapped from Sedgwick County, but the rape occurred in Sumner County. It was held that venue was proper in Sedgwick County because the element of the crime of rape of overcoming a woman's resistance by force or fear was accomplished by the act of kidnapping in Sedgwick County. The State argues that under 21-3506(b ), with which the appellant was charged, the crime was complete in and of itself when the sodomy was performed in Pottawatomie County on a person under sixteen years of age and, because overcoming the victim by force or fear was not an element of the crime, venue was proper only in Pottawatomie County.

Similar to the situation presented in Korbel, K.S.A. 22-2603 has been applied in several cases involving prosecutions for kidnapping and felony murder which have held that venue is proper in the county where the underlying felony of kidnapping occurred, although the act of murder, necessary to complete the crime of...