State v. Moses, 51100
| Decision Date | 01 March 1980 |
| Docket Number | No. 51100,51100 |
| Citation | 607 P.2d 477,227 Kan. 400 |
| Parties | STATE of Kansas, Appellee, v. Harvey A. MOSES, Jr., Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In criminal cases, the judgment must be rendered and sentence imposed in open court.
2. The judgment in a criminal case, whether it imposes confinement, imposes a fine, grants probation, suspends the imposition of sentence, or imposes any combination of those alternatives, is effective upon its pronouncement from the bench.
3. The court's judgment and sentence in a criminal case does not derive its effectiveness from the journal entry, or from any act of the clerk; it is effective when announced.
4. K.S.A. 60-258, relating to the entry of judgment in civil cases, does not apply to criminal cases.
5. Syllabus P 2 and corresponding statements in the opinion in State v. Brady, 2 Kan.App.2d 382, 580 P.2d 434 (1978) are overruled.
6. Notice of appeal must be filed in a criminal case within 130 days from the date on which sentence is imposed from the bench in open court.
7. This court has only such appellate jurisdiction as is provided by law. When the record discloses a lack of jurisdiction it is the duty of this court to dismiss the appeal.
8. The filing of a timely notice of appeal is jurisdictional.
9. That portion of K.S.A. 60-2103(a ) providing for the granting of an extension of time to file notice of appeal has no application to criminal appeals.
Robert L. Mitchell of Lewis, Davis & Mitchell, Wichita, argued the cause and was on the brief for appellant.
Stuart W. Gribble, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Vern Miller, Dist. Atty., and Roger C. Skinner, Asst. Dist. Atty., were with him on the brief for appellee.
This is a direct appeal by Harvey A. Moses, Jr., following his conviction by a jury of kidnapping, K.S.A. 21-3420, and aggravated robbery, K.S.A. 21-3427. Defendant was sentenced to consecutive terms of 15 years to life and 10 years to life.
Defendant claims that the trial court committed prejudicial error in admitting three exhibits and in failing to recess trial and grant defendant sufficient time to obtain an expert witness. Before turning to these issues, however, we must first determine whether this appeal is timely filed and thus determine whether we have jurisdiction.
The jury returned its verdict on June 14, 1978. A journal entry reciting the trial, verdict, and conviction was filed July 17, 1978. On that date, however, sentencing was deferred, and Moses was committed to the Larned State Hospital for mental examination and evaluation pursuant to K.S.A. 22-3429. Sentence was imposed in open court on November 9, 1978. The journal entry covering sentencing was filed on November 22, 1978. Notice of appeal was not filed until April 5, 1979; at the same time, defendant filed a motion to extend time to file notice of appeal, and that motion was sustained on April 24, 1979; the trial court granted defendant an additional 30 days in which to file his notice of appeal.
Several statutes come into play. K.S.A. 22-3608 fixes the time for taking appeals in criminal cases. It reads:
The district court's power to modify the sentence imposed is controlled by K.S.A.1979 Supp. 21-4603(2), which reads in applicable part as follows:
"Any time within one hundred twenty (120) days after a sentence is imposed . . . the court may modify such sentence . . . by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits."
The rendering of judgment and the imposition of sentence in a criminal case is likewise governed by statute. K.S.A. 22-3424(1) declares:
"The judgment shall be rendered and sentence imposed in open court."
In felony cases, the defendant must be present in person at the time of sentencing. K.S.A. 22-3405(1). A record of the judgment rendered or the sentence imposed must be made upon the journal of the court, and the judge must personally examine and sign the journal entry. K.S.A. 22-3426. The journalized entry is thus a record of the sentence imposed; but the actual sentencing occurs when the defendant appears in open court and the judge orally states the terms of the sentence.
In Parks v. Amrine, 154 Kan. 168, 117 P.2d 586 (1941) we held that under the statutes then in force, the sentence "was effective when rendered, even though the entry of it was not made on the journal until three days later." 154 Kan. at 173, 117 P.2d at 590. The failure of the clerk to make the required entry did not impair the judgment's effectiveness. Parks was followed in State v. Carte, 157 Kan. 139, 138 P.2d 429 (1943) and State v. Nichols, 167 Kan. 565, 572, 207 P.2d 469 (1949). This has always been the rule in Kansas, and present statutes have not changed it. The journals and records are said to be merely formal evidence of the judgment and sentence; the sentence itself is that actually imposed by the judge. Foster v. Zerbst, 92 F.2d 950 (10th Cir. 1937). In Walden v. Hudspeth, 115 F.2d 558 (10th Cir. 1940) the late Judge Huxman explained judgments in criminal cases, saying:
(p. 559.)
Applying these statutes to the facts at hand, we find that sentence was imposed on November 9, 1978; the trial court's power to modify that sentence expired 120 days later, on March 9, 1979; and the time for appeal expired ten days thereafter, on March 19, 1979.
When the defendant appears for sentencing in a criminal case, the court may commit the defendant to the custody of the appropriate authority, impose a fine, grant probation, suspend the imposition of sentence, or impose any combination of those alternatives. K.S.A.1979 Supp. 21-4603(2). Regardless of which of the alternatives the court selects, the judgment is effective upon its pronouncement from the bench; the filing of a formal journal entry is but a record, evidence of what has been done. The court's order does not derive its effectiveness from the journal entry, or from any act of the clerk; it is effective when announced. The defendant is personally present, and thus knows that at that moment he or she has been sentenced, fined, or placed on probation, or that the imposition of sentence has been suspended. If the defendant has pled not guilty and has been convicted at trial, the court is required to advise the defendant of his or her right to appeal and that the clerk will file the requisite notice of appeal if the defendant so desires. K.S.A. 22-3424(5).
Our Court of Appeals, in State v. Brady, 2 Kan.App.2d 382, 580 P.2d 434 (1978), held that the final order of a trial court in a criminal case, placing the defendant on probation and suspending the imposition of sentence, was not effective until the journal...
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