State v. Jenkins

• Decision Date: 07 September 2012
• Docket Number: No. 100,396.,100,396.
• Parties: STATE of Kansas, Appellee, v. Kerry D. JENKINS, Appellant.
• Court: Kansas Supreme Court

284 P.3d 1037

STATE of Kansas, Appellee,

v.Kerry D. JENKINS, Appellant.

No. 100,396.

Supreme Court of Kansas.

Sept. 7, 2012.

Syllabus by the Court

1. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against a second prosecution after conviction for the same offense by the same sovereign.

2. Whether a criminal defendant's protection against double jeopardy is violated is a question of law over which an appellate court has unlimited review.

3. A criminal defendant is not put in jeopardy by a proceeding in a court that has no jurisdiction because the judgment rendered against him or her is void.

4. Municipal court jurisdiction is defined by K.S.A. 12–4104.

5. The legislature may preempt the constitutional authority of cities only in the manner prescribed in the Home Rule Amendment, Article 12, § 5 of the Kansas Constitution. Home rule power does not authorize cities to act in a manner in which the legislature has precluded municipal action by clearly preempting the subject with a uniformly applicable enactment.

6. Legislative intent to reserve to the State exclusive jurisdiction to regulate must be clearly apparent by statute before it can be held that the legislature has withdrawn from the cities the power to regulate in the subject area.

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Julie A. Koon, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by BILES, J.:

After Kerry Jenkins was convicted of misdemeanor theft in municipal court for violating a Wichita city ordinance, his conviction was vacated and he was charged with and convicted of felony theft in state district court for the same offense. Jenkins argues double jeopardy attached to the municipal court proceeding, so the State's felony theft prosecution is barred under the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights, as codified at K.S.A. 21–3108. The State counters that jeopardy did not attach to the municipal court proceeding because the municipal court did not have jurisdiction over felony theft. We hold that the municipal court could vacate Jenkins' plea, and the State could prosecute him for felony theft. Double jeopardy did not attach. We affirm.

FACTS AND PROCEDURAL BACKGROUND

On May 1, 2007, Jenkins stole two DVDs, valued at less than $1,000, from a grocery store. Jenkins was charged in municipal court with misdemeanor theft. Wichita City Ordinance 5.42.010 (2005), petit theft, classifies theft of property valued at under $1,000 as a misdemeanor and provides for a potential penalty of 1 year in jail and a fine.

At the time of the crime, K.S.A. 2006 Supp. 21–3701(b)(5) also classified theft of property valued at less than $1,000 as a misdemeanor, but another subsection of the statute provided: “Theft of property of the value of less than $1,000 is a severity level 9, nonperson felony if committed by a person who has been convicted of theft two or more times.” (Emphasis added.) K.S.A. 2006 Supp. 21–3701(b)(6); see K.S.A. 21–3701(b)(5), (6) (same). Jenkins had two prior theft convictions.

On May 31, 2007, the district attorney's office filed felony theft charges in district court against Jenkins for the same theft. But on June 5, 2007—just 5 days after the felony charges were filed—Jenkins pleaded no contest to misdemeanor theft in municipal court.

On June 21, 2007, the city prosecutor moved to vacate the misdemeanor theft conviction. The City argued the municipal court lacked jurisdiction to prosecute the misdemeanor theft charge because Jenkins' crime should have been classified as a felony under K.S.A. 21–3701(b)(6). The city prosecutor cited State v. Elliott, 281 Kan. 583, Syl. ¶ 1, 133 P.3d 1253 (2006), for the holding that the municipal court lacks jurisdiction over felony crimes. On July 3, 2007, the municipal court granted the City's motion to vacate.

On July 18, 2007, Jenkins filed a motion to dismiss the felony theft charge in district court, arguing it was a second prosecution for the same crime in violation of the Double Jeopardy Clause of the Fifth and Fourteenth Amendments to the United States Constitution, § 10 of the Kansas Constitution Bill of Rights, and K.S.A. 21–3108. The State argued the statutory and constitutional double jeopardy provisions were not violated because the municipal court lacked jurisdiction. The district court agreed with the State.

The district court held that under K.S.A. 21–3701(b)(6), Jenkins' third theft conviction must be classified as a felony. It held the municipal court conviction was a nullity because the municipal court lacked jurisdiction over felonies and that double jeopardy protections did not bar the felony proceedings in district court. The district court then presided over a bench trial during which Jenkins was convicted for felony theft. Jenkins filed a timely appeal to the Court of Appeals, arguing the municipal court had jurisdiction over the misdemeanor theft prosecution, so the second prosecution violated double jeopardy.

The Court of Appeals held that Elliott was controlling and the municipal court lacked jurisdiction because the theft was classified as a felony under K.S.A. 21–3701(b)(6). State v. Jenkins, No. 100,396, 2009 WL 2144059, at *1–2 (Kan.App.2009) (unpublished opinion). It then held K.S.A. 21–3108(4)(a), the statutory protection against double jeopardy, does not bar a second prosecution when the court presiding over the first prosecution lacked jurisdiction. 2009 WL 2144059, at *2. Jenkins filed a petition for review with this court, raising the same double jeopardy issue. This court has jurisdiction under K.S.A. 20–3018(b) (review of Court of Appeals decision).

ANALYSIS

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against a second prosecution after conviction for the same offense by the same sovereign. See Heath v. Alabama, 474 U.S. 82, 88–89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (under the dual sovereignty doctrine a defendant may be prosecuted for the same crime by two sovereigns if the two entities draw their authority to punish the offender from distinct sources of power). This court has held that § 10 of the Kansas Constitution Bill of Rights and the Fifth Amendment to the United States Constitution are coextensive. State v. Morton, 283 Kan. 464, 467, 153 P.3d 532 (2007); see State v. Cady, 254 Kan. 393, 396–97, 867 P.2d 270 (1994).

Historically, Kansas treated the cities and the State as separate sovereigns, allowing prosecution of the same crime in both municipal and district court. Earwood v. State, 198 Kan. 659, 660, 426 P.2d 151 (1967) ( “The city and the state are separate sovereigns having separate codes of behavior. We have previously declared that a defendant may be prosecuted for his actions by both sovereigns.”). But the United States Supreme Court held that practice violated the Fifth and Fourteenth Amendments. Waller v. Florida, 397 U.S. 387, 393–95, 90 S.Ct. 1184, 25 L.Ed.2d 435,reh. denied398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 79 (1970) (“[T]he judicial power to try petitioner on the first charges in municipal court springs from the same organic law that created the state court ... in which petitioner was tried and convicted for a felony,” and petitioner could not be tried by both the municipal government and the State.). This court recognized that Waller overruled Earwood in Cox v. State, 208 Kan. 190, 191–92, 490 P.2d 381 (1971)( Earwood and other similar cases “may no longer be considered sound authority insofar as they are grounded on the theory of dual sovereignty of city and state.”).

Under this precedent, Jenkins' prosecution is seen as arising from the same sovereign because both the City and the State derive their power from the same organic law, the Kansas Constitution, so the double jeopardy provisions are potentially implicated. Whether a criminal defendant's protection against double jeopardy is violated is a question of law over which an appellate court has unlimited review. State v. Gaudina, 284 Kan. 354, 369, 160 P.3d 854 (2007); Morton, 283 Kan. at 468, 153 P.3d 532.

The parties agree double jeopardy does not attach to a proceeding if the court lacked jurisdiction. This point is well established. See, e.g.,Serfass v. United States, 420 U.S. 377, 391–92, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (“[Jeopardy] does not come into play until a proceeding begins before a trier ‘having jurisdiction to try the question of the guilt or innocence of the accused.’ [Citations omitted.] ... Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.”); Grafton v. United States, 206 U.S. 333, 345, 27 S.Ct. 749, 51 L.Ed. 1084 (1907) (“[B]efore a person can be said to have been put in jeopardy of life or limb the court in which he was acquitted or convicted must have had jurisdiction to try him for the offense charged.”); K.S.A. 21–3108(4)(a) (prosecution is not barred “[b]y a former prosecution before a court which lacked jurisdiction over the defendant or the offense”); State v. Hendren, 127 Kan. 497, 499–500, 274 P. 274 (1929) (Double jeopardy did not attach to prosecution in Cherokee County for blackmail because it was charged in wrong county and “ ‘defendant cannot be considered as put in jeopardy by a proceeding in a court that has no jurisdiction in the premises, because any judgment that might be rendered against him would be void.’ ”).

The parties dispute whether the municipal court had subject matter jurisdiction over Jenkins' third theft prosecution. Jenkins argues the municipal court had concurrent jurisdiction to convict him of misdemeanor theft under the...