State v. Ortiz, 53369
| Decision Date | 27 February 1982 |
| Docket Number | No. 53369,53369 |
| Citation | 640 P.2d 1255,230 Kan. 733 |
| Parties | STATE of Kansas, Appellee, v. Celestino ORTIZ, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. This court has only such appellate jurisdiction as is provided by law. Jurisdiction to entertain an appeal is conferred by statute pursuant to article 3, § 3 of the Constitution of Kansas, and when the record discloses a lack of jurisdiction it is the duty of this court to dismiss the appeal.
2. The filing of a timely notice of appeal is jurisdictional. The appeal in this case was not taken within the 130-day period fixed by statute, K.S.A. 22-3608 and K.S.A. 1980 Supp. 21-4603, and must therefore be dismissed.
3. An exception to the general rules stated in Syllabi PP 1 and 2 has been recognized in the interest of fundamental fairness only in those cases where a defendant either was not informed of the rights to appeal or was not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who failed to perfect and complete an appeal.
K. Mike Kimball, of Hathaway & Kimball, Ulysses, argued the cause and was on the briefs for appellant.
M. Moran Tomson, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.
Celestino Ortiz was convicted of second degree murder and three counts of aggravated assault with a deadly weapon. These felonies occurred on October 16, 1978, in Stanton County, Kansas. Ortiz was sentenced on March 6, 1979. On April 4, 1979, he signed the following written waiver of his right to appeal:
Ortiz had lived in the United States for six or seven years and had a limited ability to speak and understand the English language. In the written waiver Ortiz directs his attorney, Richard M. Pickler, not to appeal his convictions. No appeal was filed. Over a year later on June 23, 1980, Ortiz filed a motion pursuant to K.S.A. 60-1507, asking the District Court of Stanton County, Kansas, to appoint counsel for him and to authorize counsel to file an appeal from his conviction out of time.
Ortiz alleges in the motion that he was illiterate and failed to understand his appeal rights when he signed the written waiver. He further alleges that he was misled, coerced, and tricked into signing the waiver; that he did not understand the interpreter; that he was denied effective assistance of counsel; and that he should have been afforded a hearing to determine whether he was competent to stand trial.
The district court appointed counsel as requested and counsel filed an amended motion expanding the matters stated in the first motion and requesting the right to appeal out of time. These motions did not comply with the requirements of K.S.A. 60-1507 or Rule No. 183 (228 Kan. 1xxxiv). No witnesses were named to support the allegations.
The district judge considered these motions and on the basis of the files and records of the case authorized the attorney for movant to appeal the conviction out of time. The only basis for such action was the judge's statement: "However, everyone is entitled to an appeal, and if this defendant wishes an appeal, I certainly an inclined and will grant my consent to an appeal out of time."
The State urges this court to dismiss the appeal for lack of jurisdiction. In State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980), this court said:
In Moses we pointed out there is no provision authorizing the district courts to extend the time for appeal in criminal cases. The excusable neglect provision in K.S.A. 60-2103(a) applying to civil procedure is not...
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In re I.A.
...him as a juvenile offender. He thus argues his appeal falls under the first exception allowing a late appeal recognized in State v. Ortiz , 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982) . Ortiz held adult criminal defendants could file late appeals in three circumstances; we often call th......
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State v. Moore
...ordered Moore to show cause why his appeal should not be dismissed for lack of jurisdiction. Moore responded that State v. Ortiz, 230 Kan. 733, 735–36, 640 P.2d 1255 (1982), applied because he was furnished an attorney who failed to perfect and complete the appeal. We retained Moore's appea......
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Albright v. State
...(2007) ; Kargus v. State, 284 Kan. 908, 169 P.3d 307 (2007); Brown v. State, 278 Kan. 481, 101 P.3d 1201 (2004) ; and State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). The variance in the holdings and rationales of those decisions, according to the parties, make it unclear whether there ......
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Kargus v. State
...468 (1985)] "). Rather, Kansas has taken a somewhat different approach in dealing with a failure to file an appeal. In State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), we recognized that in the interest of fundamental fairness an untimely appeal will be allowed in those cases where an in......
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Habeas Corpus in Kansas the Great Writ Affords Postconviction Relief at K.s.a. 60.1507
...K.S.A. 22-3608(a) to the 120 days a defendant has to file a notice of appeal pursuant to K.S.A. 21-4603(d)(1). [FN151]. State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). See also State v. Medina, 256 Kan. 695, 701, 887 P.2d 105 (1994) (rule in Ortiz applies both when furnished counsel fai......
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Kansas Sentencing Guidelines
...an untimely direct appeal of a severity level one drug sentence if he could satisfy the standards of State v. Ortiz, 203 Kan. 733, 735, 640 P.2d 1255 [1982]). See also State v. Shelly, 303 Kan. 1027, 371 P.3d 820 (2016) (setting forth standards for determining whether defendant met Ortiz st......
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Kansas Appellate Advocacy an Inside View of Common-sense Strategy
...reason). [FN61]. Resolution Trust Corp. v. Bopp, 251 Kan. 539, 541, 836 P.2d 1142 (1992). But see criminal exceptions in State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982); State v. Medina, 256 Kan. 695, 701, 887 P.2d 105 (1994). For civil exceptions to requirement of timely notice ......
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Kansas Sentencing Guidelines
...an untimely direct appeal of a severity level one drug sentence if he could satisfy the standards of State v. Ortiz, 203 Kan. 733, 735, 640 P2d 1255 [1982]). See also State v. Shelly, 303 Kan. 1027, 371 P3d 820 (2016) (setting forth standards for determining whether defendant met Ortiz stan......