State v. Myers

• Citation: 697 P.2d 879,10 Kan.App.2d 266
• Decision Date: 04 April 1985
• Docket Number: No. 56285,56285
• Parties: STATE of Kansas, Appellee, v. Lafe F. MYERS a/k/a Monte Myers, Appellant.
• Court: Court of Appeals of Kansas

Page 879

697 P.2d 879

10 Kan.App.2d 266

STATE of Kansas, Appellee, v. Lafe F. MYERS a/k/a Monte Myers, Appellant.

No. 56285.

Court of Appeals of Kansas.

April 4, 1985.

Syllabus by the Court

1. Under K.S.A. 22-3608(1), a defendant has ten days after the expiration of the district court's power to modify the sentence in which to file a notice of appeal.

2. When a defendant has filed a motion for probation or reduction of sentence within the 120-day limit set by K.S.A.1984 Supp. 21-4603(3), the district court retains

jurisdiction to decide the motion after expiration of the 120 days.

3. When a district court does not decide a timely filed motion for modification of sentence within 120 days after sentencing, the ten-day time for appeal does not begin to run until the court decides the pending motion.

4. Because a defendant has no right to be present when a district court decides a motion to modify, the ten-day time for appeal begins upon filing of the journal entry deciding the motion to modify.

5. The record is examined and it is held:

(a) The district court did not abuse its discretion in failing to strike evidence for the State's failure to comply with discovery under K.S.A. 22-3213;

(b) The search of small containers was reasonable and within the scope of a search warrant authorizing search of defendant's residence for amphetamines;

(c) Items which were not listed on the search warrant, but were seized in a search of the defendant's residence, were within the plain view exception; and

(d) The defendant's admission of prior felony convictions was sufficient evidence for enhancement of sentence under K.S.A.1984 Supp. 65-4127b.

W. Irving Shaw, of Krueger & Shaw, Emporia, for appellant.

Rodney H. Symmonds, Co. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before BRISCOE, P.J., and REES and MEYER, JJ.

BRISCOE, Judge:

Defendant Myers appeals criminal convictions and sentencing on drug charges.

On July 15, 1982, a search warrant was issued for a residence owned and occupied by the defendant and his wife in Emporia, Kansas. The search warrant was issued for amphetamines, items for the sale or use of amphetamines, and items which would identify the occupants of the residence. The warrant was executed the next day, July 16. The defendant's residence was searched and various items of personal property were seized. As items of property were collected, Officer Paul Yonally, using a tape recorder, described the items and the locations from which they were taken within the residence. As a result of the search, numerous charges were filed against the defendant.

The defendant filed a motion to suppress all of the seized items, alleging they were beyond the scope of the search warrant. A suppression hearing was held, during which the defendant moved to strike the testimony of Yonally because the evidence inventory tape had been erased. The district court denied the motion to suppress and the motion to strike Yonally's testimony.

With the defendant reserving the right to appeal on issues of law, the case was tried to the court upon the parties' stipulation of the facts. The district court found the defendant guilty of possession of a hallucinogenic drug (K.S.A.1984 Supp. 65-4127b[a] and possession of a depressant (65-4127b[a]. Both counts were held to be class D felonies because of defendant's prior conviction under 65-4127b. K.S.A.1984 Supp. 65-4127b(a).

The defendant was sentenced to two concurrent terms of three to ten years. Subsequent motions to modify the sentence were denied. Defendant raises three issues on appeal:

(1) Whether the district court erroneously refused to strike the testimony of Yonally when his tape-recorded inventory statement had been erased;

(2) Whether the evidence seized by the police officers in the course of their search of defendant's home was inadmissible; and

(3) Whether there was sufficient evidence of a prior conviction under 65-4127b for the district court to sentence the defendant for a class D felony.

Prior to oral argument, we questioned the timeliness of defendant's appeal and ordered the parties to address at argument our jurisdiction to hear the appeal. We turn first to an examination of the jurisdictional issue raised on our own motion. State v. Bickford, 234 Kan. 507, 509, 672 P.2d 607 (1983).

Several dates are relevant to this issue. The defendant was orally sentenced from the bench on June 1, 1983. He then filed a motion to modify his sentence, which was denied. On September 21, 1983, the defendant filed a second motion to modify his sentence, 112 days after sentencing. This second motion was orally denied on October 5, 1983, 126 days after sentencing, with the journal entry memorializing the denial filed on October 20, 1983, 141 days after sentencing. Defendant filed his notice of appeal on October 26, 1983, 147 days after sentencing.

The time within which a criminal defendant may appeal is fixed by statute. K.S.A. 22-3608(1) provides:

"If sentence is imposed, the defendant may appeal from the judgment of the district court not later than ten days after the expiration of the district court's power to modify the sentence."

K.S.A.1984 Supp. 21-4603(3) provides:

"Any time within 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. If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals."

The two statutes, read together, appear to give a criminal defendant 130 days after sentencing in which to take a direct appeal. Kansas cases have so held. See, e.g., State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980); State v. Smith, 223 Kan. 47, 47, 574 P.2d 161 (1977).

The jurisdictional issue raised in this appeal is whether judicial interpretation of K.S.A.1984 Supp. 21-4603(3) extending the time in which a district court can rule on a sentence modification motion also extends the appeal time under K.S.A. 22-3608(1). See State ex rel. Owens v. Hodge, 230 Kan. 804, 641 P.2d 399 (1982).

General principles of appellate jurisdiction are well established and often stated:

"The right of appeal is entirely a statutory right; no appellate review is required by the federal constitution [citation omitted] or the Kansas Constitution. [Citations omitted.] It is the established rule in this state that this court has no jurisdiction to entertain an appeal by defendant in a criminal case, unless he takes his appeal within the time prescribed by the statutes providing for such an appeal. [Citations omitted.] The supreme court has only such appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of the Kansas Constitution, and when the record discloses lack of jurisdiction, it is the duty of the supreme court to dismiss the appeal. [Citations omitted.]" State v. Smith, 223 Kan. at 48, 574 P.2d 161.

See also State v. Moses, 227 Kan. at 404, 607 P.2d 477; City of Kansas City v. Sherman, 9 Kan.App.2d 757, 758, 687 P.2d 1383 (1984).

The jurisdictional issue we address is one of first impression and arises as a corollary to the decision in State ex rel. Owens v. Hodge, 230 Kan. 804, 641 P.2d 399. In Hodge, the petitioner district attorney sought a mandamus against the respondent district judge which would require the judge to withdraw an order placing a convicted criminal defendant on probation. The issue posed was "whether a district court in Kansas loses jurisdiction to act upon a motion for reduction of a sentence or for probation under K.S.A. 21-4603(3) ... at the expiration of the applicable 120-day period, even though a motion for reduction of sentence or for probation was timely filed by the defendant within that time period." 230 Kan. at 804, 641 P.2d 399. Relying on federal precedent and enunciating Kansas Criminal Code and Kansas Code of Criminal Procedure philosophy Hodge rejected literal interpretation of K.S.A. 21-4603(3) and held that "a district court does not lose jurisdiction to act upon a motion for reduction of sentence or for probation at the expiration of the 120-day period after sentence was imposed, where a timely motion has been filed by defendant within that time period and where the district judge reasonably needs the time to consider and act upon the motion." 230 Kan. at 814, 641 P.2d 399.

Here, the defendant timely filed his second motion to modify sentence by filing it 112 days after the oral pronouncement of his sentence, which is within the 120-day period after sentence was imposed. K.S.A.1984 Supp. 21-4603(3). Although the district court ruled on the motion to modify 126 days after the pronouncement of sentence, the court still had jurisdiction to make that ruling under State ex rel. Owens v. Hodge, 230 Kan. at 814, 641 P.2d 399.

The time limitation on a criminal defendant's right to a direct appeal is statutorily linked to the time in which a district court may modify his sentence. K.S.A. 22-3608(1) and K.S.A.1984 Supp. 21-4603(3). Under K.S.A. 22-3608(1), the defendant has 10 days after the district court's decision on the motion to modify in which to perfect his appeal. The statute provides the defendant may appeal "not later than ten days after the expiration of the district court's power to modify the sentence." Since the district court's power to modify is extended beyond the 120-day period under Hodge, the defendant would have 10 days from the date the district court ruled on the motion to modify to file his notice of appeal.

Although this procedure may result in the extension of the 130-day time limitation for the filing of a direct criminal appeal in certain cases, that extension is required under K.S.A. 22-3608(1) and K.S.A.1984 Supp. 21-4603(3) when read with Hodge. This procedure also...