State v. Hermes, 52498
| Decision Date | 25 March 1981 |
| Docket Number | No. 52498,52498 |
| Citation | 229 Kan. 531,625 P.2d 1137 |
| Parties | STATE of Kansas, Appellant, v. Thomas S. HERMES, 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.
2. K.S.A. 1980 Supp. 22-3603 does not authorize an interlocutory appeal by the State after a criminal trial has commenced.
3. K.S.A. 1980 Supp. 22-3602(b )(3) does not authorize an appeal by the State on a question reserved in a criminal proceeding during trial.
4. An appeal by the State in a criminal action on a question reserved under K.S.A. 1980 Supp. 22-3602(b )(3) must be taken after judgment.
Roger W. Badeker, Asst. County Atty., argued the cause and Robert T. Stephan, Atty. Gen., was with him on brief, for appellant.
Michael C. Helbert of Guy, Helbert & Bell, Emporia, argued the cause and was on brief, for appellee.
This is an appeal by the State from a ruling by the trial court in a traffic case. There does not appear to be any statutory grounds for the unusual procedure followed in this case.
Thomas S. Hermes went to trial before the court on a charge of reckless driving resulting from a one-car accident which occurred east of Emporia. During the trial, Trooper Langdon, of the Kansas Highway Patrol, attempted to testify to certain statements made by Hermes. The defendant objected on the grounds he had not been given his Miranda warnings. The court held a brief Jackson v. Denno hearing and ruled in favor of the defendant. The prosecuting attorney then moved to take an immediate appeal pursuant to K.S.A. 1980 Supp. 22-3603. The proceedings were then suspended and the court stated "this matter will be stayed pending the results of the appeal." The defendant had no opportunity to introduce his evidence. A journal entry was filed which recited that the State "presents its evidence and rests." It also stated "the State moves for an appeal under K.S.A. 22-3603." The court then ordered the matter stayed pending appeal. The State then filed a notice of appeal in which it asserted that it was appealing "pursuant to K.S.A. 22-3602(b )(3)."
"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." State v. Crozier, 225 Kan. 120, Syl. P 1, 587 P.2d 331 (1978).
The prosecuting attorney initially indicated he desired to take an appeal, during the pendency of the trial, pursuant to K.S.A. 1980 Supp. 22-3603, which authorizes an interlocutory appeal prior to commencement of trial from certain specific pretrial orders of the court. State v. Platten,...
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State v. Ruden
...to appeal is authorized by statute. If no statutory authority for an appeal exists, the appeal must be dismissed. State v. Hermes, 229 Kan. 531, 625 P.2d 1137 (1981). The prosecution is authorized to take a direct appeal in four cases, which are set out in K.S.A. "Appeals to the supreme cou......
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State v. Bickford
...in the absence of a statute which authorizes an appeal, an appeal is not available to the losing party in the district court. State v. Hermes, 229 Kan. 531, Syl. p 1, 625 P.2d 1137 2. An objection based on absence of jurisdiction of the subject matter must be considered and may be effective......
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State v. Nelson, 76518
...in the absence of a statute which authorizes an appeal, an appeal is not available to the losing party in the district court. State v. Hermes, 229 Kan. 531, Syl. p 1, 625 P.2d 1137 "An objection based on absence of jurisdiction of the subject matter must be considered and may be effectively......
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State v. Freeman
...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 2. There is no statutory authority for the State to appeal in a criminal case from the dismissal of so......