State v. Mitchell, 46660
| Decision Date | 04 November 1972 |
| Docket Number | No. 46660,46660 |
| Citation | 210 Kan. 470,502 P.2d 850 |
| Parties | STATE of Kansas, Appellee, v. Gerald MITCHELL, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The supreme court has only such appellate jurisdiction as is conferred by statute pursuant to Art. 3, § 3, of the Constitution, and when the record discloses lack of jurisdiction it is the duty of the supreme court to dismiss the appeal.
2. K.S.A.1972 Supp. 22-3601 precludes appellate review in criminal cases where the defendant pleaded guilty after July 1, 1970.
Edward J. Chapman, Jr., Leavenworth, argued the cause and was on brief for appellant.
Patrick J. Reardon County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on brief for appellee.
FOTH, Commissioner:
Appellant pleaded guilty to escaping from the penitentiary without breaking in violation of former K.S.A. 21-734. He was sentenced to the statutory penalty for a first offender, i. e., a maximum of three years commencing upon the expiration of his present sentence. He appeals claiming his guilty plea was coerced by the prosecutor's threats to invoke the habitual criminal act if appellant did not plead guilty-threats which, he asserts, illustrate the unconstitutionality of the act.
Appellant's offense was committed on September 4, 1969, and the information was filed May 6, 1970. However, because of delay caused in part by his request for a commission to examine his competency to stand trial, he did not enter his guilty plea until March 15, 1971. His notice of appeal was filed April 15, 1971.
At the time appellant pleaded guilty and instituted this appeal the proceedings were governed by the new code of criminal procedure, which had become effective July 1, 1970. (Laws 1970, ch. 129.) Under section 22-4602(1) of that act, if appellant had insisted upon a trial he could have elected to have those proceedings governed by the law in effect at the time the prosecution was commenced. Appeals, however, are governed by the new code even if commenced prior to its effective date. (K.S. A.1972 Supp. 22-4602 (2).)
The crucial section of the code, which had been in effect for eight and one-half months when appellant pleaded guilty and fro nine and one-half months when he instituted this appeal, is K.SA.1972 Supp. 22-3601:
'An appeal to the supreme court may be taken by the defendant as a matter of right from any judgment against him in the district court and upon appeal any decision of the district court or...
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