State v. Grimes

• Decision Date: 17 January 1981
• Docket Number: No. 52164,52164
• Parties: STATE of Kansas, Appellant, v. James T. GRIMES, Appellee.
• Court: Kansas Supreme Court

Page 143

622 P.2d 143

229 Kan. 143

STATE of Kansas, Appellant, v. James T. GRIMES, Appellee.

No. 52164.

Supreme Court of Kansas.

Jan. 17, 1981.

Syllabus by the Court

1. When a question in a case has been decided once on appeal and is final that decision becomes the law of the case.

2. Questions reserved under K.S.A. 1980 Supp. 22-3602(b )(3) may be appealed by the State only when the case has been terminated.

3. Inherent in appeals as a matter of right by the prosecution under K.S.A. 1980 Supp. 22-3602(b ) is the element that the trial court has entered final judgment in the case.

4. If motion for new trial is granted, there is no appeal by either State or defendant since the order granting a new trial is not a final order.

5. K.S.A. 1980 Supp. 22-3602(b )(3) does not authorize interlocutory appeals by the State; an order granting a new trial may not provide the basis for an interlocutory appeal as of right upon a "question reserved."

6. K.S.A. 22-3604 is intended to apply, and does apply, only to interlocutory appeals pursuant to K.S.A. 1980 Supp. 22-3603.

7. The time that an unauthorized interlocutory appeal by the State is pending in the Supreme Court, including extensions of time secured by the defendant in order to respond in that matter, does not delay trial of the accused in the district court, and such time should not be charged against the accused in computing the 90 and 180-day time periods fixed by K.S.A. 1980 Supp. 22-3402.

James G. Kahler, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Mark A. Hannah, legal intern, were with him on the brief for the appellant.

A. Jack Focht, of Smith, Shay, Farmer & Wetta, Wichita, argued the cause and was on the brief for the appellee.

MILLER, Justice:

The State appeals from an order of the Rice district court discharging the defendant in this criminal case, James T. Grimes, due to the State's failure to comply with the Kansas speedy trial statute, K.S.A. 1980 Supp. 22-3402. A chronological statement of the facts is necessary to an understanding of the issues.

Dr. James T. Grimes discovered his wife, Gloria, sitting with Kevin McClure in McClure's car in Lyons on November 17, 1978. Grimes suspected that his wife was romantically involved with McClure. Grimes was armed; he ran to the window of McClure's car and confronted him; a shot was fired; McClure was slightly injured. Grimes was then charged with aggravated battery of McClure and with aggravated assault of Gloria. On July 25, 1979, a jury found Grimes guilty of aggravated battery but acquitted him of aggravated assault. Defendant filed a motion for a new trial, alleging among other things that the trial court erred in its jury instruction on presumption of intent, which followed PIK Crim. 54.01. He contended that the instruction was unconstitutional under the rationale of the recently announced decision of the United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The trial judge granted the motion for new trial on that ground on September 14, 1979.

The State then filed its notice of appeal to this court from the order "made on September 14, 1979, granting Defendant a new trial." After the State's brief was filed, Grimes was granted an extension of 30 days in which to file his brief. Within that time he filed a motion for involuntary dismissal, contending that K.S.A. 1978 Supp. 22-3602(b ) does not authorize an appeal by the State upon the granting of a new trial. The State responded, alleging that the State was challenging the propriety of the order granting a new trial as a "question reserved" under K.S.A. 1978 Supp. 22-3602(b )(3). On January 25, 1980, we summarily sustained defendant's motion and dismissed the appeal.

Grimes, on March 26, 1980, filed a motion in the trial court alleging that the State's failure to bring him to trial within 180 days after a new trial was granted was in violation of K.S.A. 1980 Supp. 22-3402. The trial court sustained that motion on March 31, 1980, and discharged the defendant; the State appeals, raising three issues:

(1) that its earlier appeal from the order granting a new trial qualified as a "question reserved" under K.S.A. 1979 Supp. 22-3602(b )(3).

(2) that the earlier appeal was "pending" and pursuant to K.S.A. 22-3604(2) the time that proceeding was pending should not be counted for the purpose of computing the 180-day period fixed by K.S.A. 1979 Supp. 22-3402.

(3) that the defendant should be charged with the 30-day extension of time which he sought and was granted in which to file his brief in this court during the earlier appeal.

The four sections of the Kansas Statutes Annotated which are involved in this case were all enacted, substantially in their present form, when our code of criminal procedure was revised in 1970. See Laws of Kansas, 1970, chapter 129, §§ 22-3402, 22-3602, 22-3606, and 22-3604. The first three sections have since been amended, but the substance of the 1970 enactments remain. Throughout the remainder of this opinion we will cite the first three sections as they now appear in the 1980 supplement, since the provisions as contained therein were applicable throughout this proceeding. The parts of these statutes applicable here are as follows:

K.S.A. 1980 Supp. 22-3402(2):

"If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant ...."

K.S.A. 1980 Supp. 22-3602(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. 1980 Supp. 22-3603:

"When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal."

K.S.A. 22-3604:

"(1) A defendant shall not be held in jail nor subject to an appearance bond during the pendency of an appeal by the prosecution.

"(2) The time during which an appeal by the prosecution is pending shall not be counted for the purpose of determining whether a defendant is entitled to discharge under section 22-3402 of this code."

The first issue is whether the State's attempted appeal from the order of September 14, 1979, granting the defendant a new trial, qualified as a "question reserved" under K.S.A. 1980 Supp. 22-3602(b )(3). Since that was the only issue argued in the motion to dismiss, the grant of that motion should resolve the issue. As we said in State v. Hutchison, 228 Kan. 279, 285, 615 P.2d 138 (1980):

"When a question in a case has been decided once on appeal and is final that decision becomes the law of the case."

However, since we did not write a formal opinion upon our dismissal of the earlier appeal, we wish to state our reasons for that dismissal. When the State filed its notice of appeal in September of 1979, the case was pending. A new trial had been ordered. The appeal was interlocutory, one taken between the commencement and termination of the action in the trial court. The order did not terminate the case; it directed that a trial be held. The legislature provided for interlocutory appeals by the State by K.S.A. 1980 Supp. 22-3603. This appeal, however, did not fit within the confines of that statute; the trial court made no order quashing a warrant or search warrant, no order suppressing evidence or a confession or admission. Thus the attempted appeal was not one authorized by -3603.

The appellant wants us to hold that an order of a trial court granting a new trial may form the basis for an appeal "upon a question reserved by the prosecution" under K.S.A. 1980 Supp. 22-3602(b )(3). To do so would invite a plethora of interlocutory appeals by the prosecution. If orders granting new trials are appealable as a matter of right as questions reserved, then every ruling adverse to the prosecution, made by the trial court prior to final disposition of the case, could become the subject of appeal by the prosecution! Conceivably the State could drag the case on for years without a trial.

K.S.A. 1980 Supp. 22-3602(b )(1) and (2) provide for appeals by the State when the trial court has terminated the case (1) by dismissing the charging document complaint, information or indictment; or (2) by entering an order arresting judgment. An order arresting judgment requires a finding that "the complaint, information or indictment does not charge a crime" or that "the court was without jurisdiction of the crime charged." See K.S.A. 22-3502. By dismissing or by arresting judgment, the trial court has ended the case.

We have held, since the 1970 code was enacted, that questions reserved under K.S.A. 1980 Supp. 22-3602(b )(3) may be appealed only when the case has been terminated. In State v. Puckett, 227 Kan. 911, 610 P.2d 637 (1980), the State sought to appeal as a question reserved the propriety of an order of the trial court allowing the defendant to withdraw his pleas of nolo contendere. We said:

"Alternatively, the State contends the appeal herein is proper, pursuant to K.S.A. 1979 Supp. 22-3602(b ), as a question reserved.... Inherent in appeals as a matter of right by the prosecution is the element that the trial court has entered final...