State v. Freeman

• Decision Date: 26 October 1984
• Docket Number: No. 56610,56610
• Citation: 236 Kan. 274,689 P.2d 885
• Parties: STATE of Kansas, Appellant, v. James D. FREEMAN, II, Appellee.
• Court: Kansas Supreme Court

Page 885

689 P.2d 885

236 Kan. 274

STATE of Kansas, Appellant, v. James D. FREEMAN, II, Appellee.

No. 56610.

Supreme Court of Kansas.

Oct. 26, 1984.

Syllabus by the Court

1. Since there is no time limit delineated in K.S.A. 22-3602(b) for the prosecution to appeal, the time specified under the rules of civil procedure applies.

2. An order finding a defendant guilty is not an appealable order and may not be appealed until the defendant is sentenced or the imposition of sentence is suspended pursuant to K.S.A. 22-3608.

3. A delay of sentencing from a defendant's plea or from a finding of guilty after a trial does not deprive a defendant of the right to a speedy trial.

4. "Duplicity" in a criminal pleading is the joining of two or more distinct and separate offenses in a single count in a complaint or information. "Multiplicity" in a criminal pleading is the charging of a single offense in several counts of a complaint or information.

5. The fact that an accused is charged with multiplicitous crimes is not in and of itself a violation of the double jeopardy clause. The clause merely prevents a defendant from being punished more than once for the same crime.

6. The double jeopardy clause protects an accused against a second prosecution for the same offense after acquittal or after conviction. The clause protects against multiple punishments for the same offense.

7. Three elements must be present to bar a subsequent prosecution under K.S.A. 21-3108. First, the prior prosecution must have resulted in a conviction or an 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.

8. It is clear that K.S.A.1983 Supp. 21-3107 was intended to incorporate the former law, and by its language applies only where there is a trial and evidence of the included offenses is admitted. The statutory language of 21-3107 was changed by the legislature and the word "prosecution" substituted for "trial."

9. The acceptance by the trial court of a plea of guilty to a lesser or an included offense while charges on the greater offense remain pending has none of the implications of an implied acquittal which results from a verdict convicting a defendant on a lesser included offense rendered by the judge or jury charged to consider greater, lesser and included offenses.

C.L. Laman, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on brief, for appellant.

Lawrence R. Uri, Jr., of Paulsen, Buechel, Swenson, Uri & Brewer, Chartered, Concordia, argued the cause and was on brief, for appellee.

LOCKETT, Justice:

This is an appeal by the State of Kansas in a criminal prosecution from an order of the district court dismissing two counts of a four-count indictment. This case was before the Supreme Court once before on a State's appeal but was dismissed because this court lacked jurisdiction under K.S.A. 22-3602(b). The facts of the case, as set forth in State v. Freeman, 234 Kan. 278, 670 P.2d 1365 (1983) (Freeman 1), are as follows:

On June 19, 1982, a pickup truck driven by the defendant, James D. Freeman, II, was involved in a two-vehicle collision at the junction of Highways 81 and 24 in Cloud County. A passenger in the other vehicle, Edward Strecker, subsequently died. The State alleges Mr. Strecker died as a result of injuries received in the accident and that the accident was caused by the defendant. Defendant was originally charged in a complaint and information with one count of involuntary manslaughter (K.S.A.1983 Supp. 21-3404). Immediately following the preliminary hearing the State issued three new misdemeanor complaints against defendant and filed an amended information. The amended information charged the defendant with involuntary manslaughter in count one, vehicular homicide in count two, failure to yield the right-of-way in count three and speeding in count four.

On December 6, 1982, defendant was arraigned on all four counts. Defendant pleaded not guilty to counts one, two and four and guilty to count three, the charge of failing to yield the right-of-way. On December 22, 1982, the defendant filed a motion to dismiss counts one and two on the grounds that further prosecution of those two counts would be duplicitous in violation of K.S.A.1983 Supp. 21-3107(2)(d), and barred by the double jeopardy provisions of K.S.A. 21-3108(2)(a). After extensive argument on January 3, 1983, the court sustained defendant's motion on the basis of double jeopardy and dismissed counts one and two. Without dismissing the remaining speeding charge, the State filed this appeal from the dismissal of counts one and two.

In Freeman 1, we found that there was no jurisdiction to hear the appeal. We held that there is no statutory authority for the State to appeal from the dismissal in a criminal case of some of the counts of a multiple-count complaint, information or indictment while the case remains pending before the district court on a portion of the remaining counts which have not been dismissed nor finally resolved.

Our decision was received by the Clerk of the District Court of Cloud County on December 7, 1983. On December 9, 1983, the State filed a motion to dismiss the remaining count of speeding and to set the date for sentencing on the third count of failure to yield the right-of-way to which Freeman had previously pleaded. Freeman was ordered to appear on January 3, 1984, for sentencing. Freeman appeared by counsel and was fined $50.00 and costs. On January 30, 1984, the State filed its Notice of Appeal pursuant to K.S.A. 22-3602(b)(3). On February 28, 1984, the defendant filed a motion for involuntary dismissal of the State's appeal based on lack of jurisdiction.

The right to appeal in a criminal case is strictly statutory and absent statutory authority there is no right to appeal. The statutes authorizing appeals by the prosecution in criminal actions are found at K.S.A. 22-3602 and 22-3603.

K.S.A. 22-3602(b) provides that appeals may be taken by the prosecution as follows:

"(1) From an order dismissing a complaint, information or indictment;

"(2) From an order arresting judgment;

"(3) Upon a question reserved."

The Kansas Code of Criminal Procedure does not state a time limit for appeals by the prosecution under K.S.A. 22-3602. Freeman, therefore, argues that the rules of civil procedure apply, and the State failed to file an appeal within 30 days from the entry of judgment. The defendant argues that the ruling of the trial court dismissing counts one and two was a final judgment; the appeal of such had to be within 30 days of the dismissal, and the State's failure to perfect the appeal within that time now bars this appeal.

K.S.A. 22-3608 provides the time limits for appeal by a defendant. There is no similar provision as to time limits for the prosecution to appeal under K.S.A. 22-3602(b). K.S.A. 22-3606 provides that:

"Except as otherwise provided by statute or rule of the supreme court, the statutes and rules governing procedure on appeals to an appellate court in civil cases shall apply to and govern appeals to an appellate court in criminal cases."

Since there is no time limit delineated in K.S.A. 22-3602(b) for the prosecution to appeal, the time specified under the rules of civil procedure apply. Therefore, an appeal by the State must be taken within 30 days from the entry of final judgment as required by the rules of civil procedure. K.S.A. 60-2103.

When was the judgment in Freeman 1 final? In City of Topeka v. Martin, 3 Kan.App.2d 105, 590 P.2d 106 (1979), the Court of Appeals held that a sentence must be imposed or the imposition of sentence suspended in order to have a final appealable judgment. The court said:

"An order finding a defendant guilty is not an appealable order and may not be appealed until the defendant is sentenced or the imposition of sentence is suspended pursuant to 22-3608. State v. Woodbury, 133 Kan. 1, 298 Pac. 794 (1931); Roberts v. State, 197 Kan. 687, 689, 421 P.2d 48 (1966); 21 Am.Jur.2d, Criminal Law § 525, p. 509; 24 C.J.S., Criminal Law §§ 1556, 1648, 1649, 1653." 3 Kan.App.2d at 105, 590 P.2d 106.

In State v. Lottman, 6 Kan.App.2d 741, 633 P.2d 1178 (1981), the defendant appealed from a conviction by a jury of involuntary manslaughter. Lottman moved to suspend imposition of sentence pending appeal. The motion was granted, and he appealed. The Court of Appeals dismissed the appeal for lack of jurisdiction, citing Martin. The court said the appeal was interlocutory since no sentence had been imposed, and it had no jurisdiction to hear the case.

In Freeman 1, this court characterized the State's appeal from the dismissal of two counts of the multiple count complaint as an interlocutory appeal, since the case had not been terminated in district court. We found that since final orders had not been entered, the district court still had jurisdiction over the case, and as long as the district court had jurisdiction, an appellate court had no jurisdiction.

The journal entry granting Freeman's motion for dismissal of the counts one and two was filed January 10, 1983. If the January 10 dismissal had been the final judgment in the case, the State's appeal was required to be filed within 30 days. The State filed its appeal in Freeman 1 on January 11, 1983. We, however, deemed there was no final judgment and refused to hear the appeal. Since there was no final judgment, then, the time for appeal had not commenced. Therefore, counts one and two, which had been dismissed by the district court, were not severable for the purposes of the first appeal. Freeman cannot now be allowed to sever those counts to avoid the State's second appeal. Final judgment occurred when Freeman was sentenced January 3, 1984. On January 30, 1984, within the 30 days to appeal, the State timely...