State v. Jones, 47337
| Decision Date | 06 April 1974 |
| Docket Number | No. 47337,47337 |
| Citation | 521 P.2d 278,214 Kan. 568 |
| Parties | STATE of Kansas, Appellee, v. Richard L. JONES, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Habitual criminal statutes do not involve a charge of a commission of a
criminal offense; they involve a status rather than the commission of a separate offense.
2. The Legislature has the power to define and prescribe punishment for criminal offenses. (Following State v. Latham & York, 190 Kan. 411, 375 P.2d 788.)
3. An issue will not be considered upon appeal where its existence depends upon facts which do not appear in the record. (Following State v. Brothers, 212 Kan. 187, 510 P.2d 608.)
4. The record in a criminal appeal is examined, and, as more fully set forth in the opinion, it is held: (1) K.S.A.1973 Supp. 8-262(a) is a self-contained specific recidivist statute, and (2) the statute is neither an ex post facto law nor does its application deny defendant equal protection or due process of the law.
E. Dexter Galloway, Hutchinson, argued the cause and was on the brief for appellant.
Richard L. Hathaway, Asst. County Atty., argued the cause, and Vern Miller, Atty. Gen., and Porter K. Brown, County Atty., were with him on the brief for appellee.
The defendant, Richard L. Jones, was convicted of driving with a suspended driver's license in violation of K.S.A.1973 Supp. 8-262(a), and sentenced as a felon to confinement for not less than one nor more than five years.
The defendant was first convicted for driving with a suspended license on March 30, 1971. The statute then in effect was K.S.A.1970 Supp. 8-262 which provided in part:
'(a) Any person who drives a motor vehicle on any public highway of this state at a time when his privilege so to do is canceled, suspended or revoked shall be guilty of a misdemeanor and upon conviction shall be punished by imprisonment for not more than six (6) months and there may be imposed in addition thereto a fine of not more than five hundred dollars ($500) . . .' (L.1970, Ch. 52, § 1.)
The 1972 Legislature amended the above law, effective March 31, 1972, which presently is K.S.A.1973 Supp. 8-262(a), and reads in part:
'Any person who drives a motor vehicle on any public highway of this state at a time when his privilege so to do is canceled, suspended or revoked shall be guilty of a class B misdemeanor on the first conviction, a class A misdemeanor on the second conviction and for third and subsequent convictions shal be guilty of a class E felony . . .'
On October 16, 1972, Jones was convicted a second time for driving with a suspended license, and was apprehended a third time for the same offense on December 23, 1972. At his trial for the third offense, defendant stipulated to his two prior convictions and that on December 23, 1973, he was driving a motor vehicle while his license was suspended. As indicated, he was convicted and sentenced as a felon pursuant to K.S.A.1973 Supp. 8-262(a).
The controlling question is whether our statute (K.S.A.1973 Supp. 8-262(a)) is a form of an Habitual Criminal Act, or a declaration of a distinct and separate criminal offense. The defendant argues the statute defines a separate and distinct criminal offense, and relies upon our decision in State v. Walden, 208 Kan. 163, 490 P.2d 370. The point is not well taken.
In Walden the defendant contended K.S.A.1970 Supp. 21-3708, entitled 'Habitually giving worthless checks,' was an habitual criminal statute because the statute authorized increased punishment after showing prior convictions. Finding the contention without merit, this court said:
'. . . (T)he statute in question . . . does not merely provide for the enhancement of punishment in the case of proven prior convictions; it defines in plain and unambiguous language the elements of a separate and distinct offense and declares it to be a class D felony.
(l.c. 166, 490 P.2d 373.)
The Legislature has the power to define and prescribe punishment for criminal offenses. (State v. Latham & York, 190 Kan. 411, 422, 375 P.2d 788.) The plain and unambiguous language used in K.S.A.1973 Supp. 8-262(a) requires the state prove the person charged has driven a motor vehicle on a public highway, and has done so when his privilege to operate a motor vehicle was canceled,...
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State v. Chamberlain
...that repeated violations justify the enhanced penalty.'" Campbell, 9 Kan.App.2d at 477, 681 P.2d 679 (quoting State v. Jones, 214 Kan. 568, 570, 521 P.2d 278 [1974]). See State v. LaMunyon, 259 Kan. 54, 66, 911 P.2d 151 (1996); State v. Gordon, No. 89,744, 2004 WL 1488758, unpublished opini......
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State v. LaMunyon, 71985
...is similar to that previously used by Kansas appellate courts in addressing prior Kansas habitual criminal laws. In State v. Jones, 214 Kan. 568, 521 P.2d 278 (1974), the defendant was convicted in 1971 of driving with a suspended license, a misdemeanor. In 1972, the Kansas Legislature amen......
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...C and B felonies the legislature properly exercised its power to define and prescribe punishment for criminal offenses. (State v. Jones, 214 Kan. 568, 521 P.2d 278.) We have concluded that the aggravated sodomy statute (K.S.A. 21-3506) is not unconstitutional for the reasons asserted by the......