State v. Freeman
Decision Date | 01 November 1983 |
Docket Number | No. 55270,55270 |
Citation | 234 Kan. 278,670 P.2d 1365 |
Parties | STATE of Kansas, Appellant, v. James D. FREEMAN, II, Appellee. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. The right to appeal is statutory and, in the absence of a statute which authorizes an appeal, an appeal is not available to the losing party in the district court. (Following State v. Hermes, 229 Kan. 531, Syl. p 1, 625 P.2d 1137 [1981].)
2. There is no statutory authority for the State to appeal in a criminal case from the dismissal of some of the counts of a multiple-count complaint, information or indictment while the case remains pending before the district court on all or a portion of the remaining counts which have not been dismissed and which have not been finally resolved.
C.L. Laman, County Atty., argued the cause and Robert T. Stephan, Atty. Gen., was with him on the brief for appellant.
Lawrence R. Uri, Jr. of Paulsen, Buechel, Swenson, Uri & Brewer, Concordia, argued the cause and was on the brief for appellee.
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 information.
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.1982 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 pled 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. 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.
At the outset we are faced with a jurisdictional challenge by the defendant asserting there are no statutory grounds for the appeal. We agree. The right to appeal in a criminal case is strictly statutory and absent statutory authority there is no right to an appeal. In State v. Hermes, 229 Kan. 531, Syl. p 1, 625 P.2d 1137 (1981), we held:
"The right to appeal is statutory and, in the absence of a statute which authorizes an appeal, an appeal is not available to the losing party in the district court."
The statutes authorizing appeals in criminal actions are found at K.S.A. 22-3602 and 22-3603.
K.S.A. 22-3602(b) provides:
"(b) Appeals to the supreme court may be taken by the prosecution from cases before a district judge or associate district judge as a matter of right in the following cases, and no others:
(1) From an order dismissing a complaint, information or indictment;
(2) From an order arresting judgment;
(3) Upon a question reserved by the prosecution."
K.S.A. 22-3603 provides:
The question squarely before this court is whether the State can appeal from the dismissal of some counts of a multiple count complaint, information or indictment while other counts of the same charging instrument are still pending in the district court.
In State v. Grimes, 229 Kan. 143, 622 P.2d 143 (1981), the State attempted to appeal from an order of the district court granting Grimes a new trial in a criminal case. The defendant asserted there was no right to appeal as there had not been a final determination of the case in the district court. This court stated:
229 Kan. at pp. 146-147, 622 P.2d 143.
The rationale in Grimes is applicable here. The case against defendant as to count four is still pending in district court. The State's attempted appeal appears to be in the nature of an interlocutory appeal in that the...
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...within the scope of K.S.A. 2019 Supp. 22-3602(b)(1). See State v. Phelps , 266 Kan. 185, 194, 967 P.2d 304 (1998) ; State v. Freeman , 234 Kan. 278, 282, 670 P.2d 1365 (1983). The State, therefore, has properly appealed the district court's dismissal of the felony DUI charge.The State's use......
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State v. Bird
...in a multiple-count charging document while the remaining counts are still pending before the district court. State v. Freeman , 234 Kan. 278, 282, 670 P.2d 1365 (1983) ; see also State v. McDaniel , 255 Kan. 756, 761, 877 P.2d 961 (1994) (district court loses jurisdiction once clerk of app......
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State v. Freeman
...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 On June 19, 1982, a pickup truck driven by the defendant, James D. Freeman, II, was involved in a two-veh......
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State v. McGaugh
..."[t]he district court and the appellate courts cannot both have jurisdiction of a pending case at the same time." State v. Freeman , 234 Kan. 278, 282, 670 P.2d 1365 (1983).The Kansas Supreme Court has recently emphasized that its rules mean what they say and are ignored at a litigant's own......
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Waiting for Judgment Day: Negotiating the Interlocutory Appeal in 8 Easy Lessons
...unpublished order by the Court of Appeals filed June 14, 2006. [87] City of Hutchinson v. Gibson, Case No. 99,570. [88] State v. Freeman, 234 Kan. 278, Syl. ¶ 2, 670 P.2d 1365 (1983). [89] See State v. Wallace, 172 Kan. 734, 243 P.2d 216 (1952) (no immediate appeal from order denying motion......