State v. Larson, 79088
| Decision Date | 29 May 1998 |
| Docket Number | No. 79088,79088 |
| Citation | 958 P.2d 1154,265 Kan. 160 |
| Parties | STATE of Kansas, Appellant, v. John M. LARSON, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
Where a defendant is convicted of driving under the influence (K.S.A.1997 Supp. 8-1567) on a complaint which fails to specify the crime severity level, he or she may only be sentenced as a B misdemeanant. State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996), is clarified accordingly.
Steven J. Obermeier, Assistant District Attorney, argued the cause, and Paul J. Morrison, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellant.
No appearance by appellee.
The Johnson County District Court convicted John M. Larson of driving under the influence, in violation of K.S.A.1997 Supp. 8-1567(a). The district court subsequently granted defendant's motion for arrest of judgment, finding that the State's failure to plead the crime severity level in the amended complaint was fatal to the conviction.
The underlying facts show that on June 15, 1996, a Johnson county deputy sheriff arrested defendant, issuing a citation for driving under the influence. On the traffic citation, the officer alleged that defendant had violated "08-1567 A2," and he marked the "Misdemeanor" box. Defendant was tried and convicted in traffic court and sentenced, as a first offender, to 120 days in the custody of the sheriff with a minimum of 48 hours served in jail. Additionally, he was fined $200 and ordered to pay court costs and fees. On October 31, 1996, defendant appealed this conviction to the district court.
On November 1, 1996, the State filed an amended complaint, charging defendant as follows:
"I, Jacquelyn E. Ulrich, Assistant District Attorney of said County, being duly sworn on oath state to the Court that on or about the 15th day of June, 1996, in the County of Johnson and State of Kansas,
JOHN M. LARSON
did then and there unlawfully operate or attempt to operate a vehicle: while under the influence of alcohol and/or drugs to a degree that rendered the person incapable to safely drive the vehicle; or in the alternative; with an alcohol concentration in his blood or breath of .08 or more, within 2 hours of operating the vehicle, in violation of K.S.A. 8-1567(a)(1)(2)(3)(4)(5).
/s/Jacquelyn E. Ulrich"
On February 3, 1997, defendant was tried de novo in the district court and convicted of driving under the influence based on evidence that defendant had an alcohol concentration in his blood or breath of .08 or more within 2 hours of operating the vehicle. The sufficiency of such evidence is not at issue in this appeal. However, immediately after the court pronounced defendant guilty, defendant indicated that there was a lawful reason why he could not be sentenced. This was followed by a timely motion to arrest judgment, which contended: (1) The complaint was fatally defective because the State failed to include the crime severity level in the amended complaint; and (2) accordingly, the court did not have jurisdiction to convict him of the offense.
On March 17, 1997, relying on State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996), the district court issued a memorandum decision granting defendant's motion, setting aside the judgment, and dismissing the complaint.
On March 26, 1997, the State filed a motion to reconsider, arguing that it had never attempted to prosecute defendant for anything other than the minimum crime severity level, a class B misdemeanor; therefore, the error was not prejudicial and the complaint was not fatally defective.
On April 17, 1997, the district court issued a memorandum decision denying the State's motion to reconsider, concluding, in part:
The State appealed pursuant to K.S.A. 22-3602(b). Defendant filed no appellate brief.
This case involves a question of law, and our standard of review is unlimited. See Masterson, 261 Kan. at 161, 929 P.2d 127; State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).
Defendant was charged and convicted under K.S.A.1997 Supp. 8-1567, which provides, in part:
"(a) No person shall operate or attempt to operate any vehicle within this state while:
....
"(2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
....
K.S.A.1997 Supp. 22-3201 outlines the requirements of a formal complaint:
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State v. Jenkins
...offenses. 281 Kan. at 590–93, 133 P.3d 1253. In doing so, the Elliott court discussed two post-Masterson decisions—State v. Larson, 265 Kan. 160, 958 P.2d 1154 (1998), and State v. Seems, 277 Kan. 303, 84 P.3d 606 (2004). In Larson, this court held that the State's failure to plead the seve......
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State v. Moody, No. 92,248.
...charged but is simply informed that a nonperson felony under K.S.A.2005 Supp. 8-1567 is being charged, Masterson and [State v.] Larson, [265 Kan. 160, 958 P.2d 1154 (1998),] dictate that the defendant must be sentenced as a third-time offender under K.S.A.2005 Supp. 8-1567(f). Because the r......
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State v. Elliott
...under K.S.A. 8-1567. Cadoret, 263 Kan. at Syl. ¶ 6. A conviction in a court that lacks jurisdiction is void. State v. Larson, 265 Kan. 160, 161, 958 P.2d 1154 (1998) (citing State v. Shofler, 9 Kan.App.2d 696, 687 P.2d 29 (1984)). Mr. Elliott's failure to object to the classification of his......
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State v. Reese, 106,703.
...a felony DUI. See State v. Moody, 282 Kan. 181, 197, 144 P.3d 612 (2006) (prior convictions not elements of DUI); State v. Larson, 265 Kan. 160, 164, 958 P.2d 1154 (1998) (same); Masterson, 261 Kan. 158, Syl. ¶ 1 (trial proof of prior conviction not necessary to establish guilt of later DUI......