State v. Rios

• Citation: 869 P.2d 755,19 Kan.App.2d 350
• Decision Date: 04 March 1994
• Docket Number: No. 69252,69252
• Parties: STATE of Kansas, Appellee, v. Juan RIOS, Appellant.
• Court: Court of Appeals of Kansas

Page 755

869 P.2d 755

19 Kan.App.2d 350

STATE of Kansas, Appellee, v. Juan RIOS, Appellant.

No. 69252.

Court of Appeals of Kansas.

March 4, 1994.

Syllabus by the Court

1. The right to appeal is neither a vested nor a constitutional right, but is strictly statutory in nature. When the record discloses a lack of jurisdiction, it is the duty of the court to dismiss the appeal.

2. K.S.A. 22-3602(a) authorizes a defendant to appeal from a judgment in a criminal case. "Judgment" requires both a conviction and a sentence, or a suspension of sentence.

3. Under Supreme Court Rule 2.03 (1993 Kan.Ct.R.Annot. 7) a premature notice of appeal from a judgment lies dormant until the judgment is duly entered. Because a finding of guilty is not a judgment, Rule 2.03 has no application to an appeal challenging a criminal conviction that is filed prior to sentencing.

4. The filing of timely notice of appeal is jurisdictional. A criminal appeal not taken within the statutory 130-day period must be dismissed.

5. An exception to the rule stated in Syl. p 4 has been recognized in the interest of fundamental fairness only in those cases where a defendant either was not informed of the right 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.

6. The purpose of requiring a final decision prior to an appeal is to prevent intermediate and piecemeal appeals that extend and prolong litigation and add to the cost of litigation.

7. In the interest of fundamental fairness, an appeal from a criminal conviction filed prior to sentencing may be entertained when (1) the trial court furnishes a defendant with an attorney who fails to properly perfect the appeal; (2) the State fails to raise the jurisdiction issue; and (3) the State does not claim prejudice from the fact the appeal was filed too early.

8. When illicit drugs are found in an automobile containing more than one person, a defendant's mere presence in the vehicle, without more, would not sustain his or her conviction for possession.

9. Where reliance is placed on circumstantial evidence, the circumstances in question must themselves be proved and cannot be inferred or presumed from other circumstances.

Phyllis F. Wendler of Friesen & Wendler, P.A., Garden City, for appellant.

John Shirley, County Atty. and Robert T. Stephan, Atty. Gen., for appellee.

Before ROYSE, P.J., GREEN, J., and DAVID W. KENNEDY, District Judge, assigned.

ROYSE, Judge:

Juan Rios appeals his convictions by a jury of one count of possession of marijuana with intent to sell, K.S.A. 65-4127b, and one count of possession of marijuana without a tax stamp, K.S.A. 79-5208. Rios claims that there was insufficient evidence introduced at trial to support a guilty verdict and that he was denied a fair trial because the court-appointed interpreter was unqualified to perform her duties.

The State argues that this court lacks jurisdiction to consider the merits of Rios' appeal. The State contends the appeal is premature because it was filed prior to Rios' sentencing. Rios responds that the appeal is pursuant to Supreme Court Rule 2.03 (1993 Kan.Ct.R.Annot. 7).

It is well established that "[t]he right to appeal is neither a vested nor constitutional right, but is strictly statutory in nature." State v. McDaniels, 237 Kan. 767, Syl. p 1, 703 P.2d 789 (1985). When the record discloses a lack of jurisdiction, it is the duty of the court to dismiss the appeal. State v. Leopard, 191 Kan. 581, 582, 382 P.2d 330 (1963).

K.S.A. 22-3602(a) provides in part:

"Except as otherwise provided, an appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against the defendant in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed."

For purposes of K.S.A. 22-3602(a), "judgment" requires both a conviction and a sentence. In State v. Rucas, 12 Kan.App.2d 68, 72, 734 P.2d 673 (1987), this court stated that "[i]n Kansas there is no 'final judgment in the case' from which an appeal can be taken until there has been both conviction and sentencing or suspension of sentence." In City of Topeka v. Martin, 3 Kan.App.2d 105, 590 P.2d 106 (1979), this court dismissed an appeal which was filed prior to sentencing because "[a]n order finding a defendant guilty is not an appealable order." Recently in State v. Wilson, 15 Kan.App.2d 308, 310, 808 P.2d 434 (1991), this court reaffirmed the fact that "[t]he judgment in a criminal case becomes effective, and the time period for appeal starts running, when the defendant's sentence is pronounced from the bench."

The record in this case is straightforward. Rios was found guilty by a jury, and his post-trial motions were heard on December 1, 1992. His notice of appeal was filed on December 29, 1992. The district court imposed sentence on January 5, 1993. Thus, there was no "final judgment in the case" when Rios filed his notice of appeal. Rios' reliance on Rule 2.03 is misplaced. That rule provides:

"A notice of appeal filed subsequent to an announcement by the judge of the district court on a judgment to be entered, but prior to the actual entry of judgment as provided in K.S.A. 60-258, shall be effective as notice of appeal under K.S.A. 60-2103 if it identifies the judgment or part thereof from which the appeal is taken with sufficient certainty to inform all parties of the rulings to be reviewed on appeal. Such advance filing shall have the same effect for purposes of the appeal as if the notice of appeal had been filed simultaneously with the actual entry of judgment, provided it complies with K.S.A. 60-2103(b)."

Under Rule 2.03, a premature notice of appeal from a judgment lies dormant until the judgment is duly entered. See State v. Bohannon, 3 Kan.App.2d 448, 451, 596 P.2d 190 (1979). Because a finding of guilty is not a judgment, Rule 2.03 has no application here.

This court has also considered State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). In Ortiz, the Supreme Court recognized an exception to the general rule that an appeal filed out of time must be dismissed.

"An exception to the general rules ... 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." 230 Kan. 733, Syl. p 3, 640 P.2d 1255.

Presumably, the reason for allowing an exception when an attorney fails to perfect and complete an appeal is the belief that it is unfair to punish a defendant for the mistakes of his counsel. In this case, Rios clearly wanted to appeal his conviction, but his attorney mistakenly filed the notice of appeal before sentencing. Fundamental fairness would dictate that Rios not be penalized for the mistakes of his attorney.

In the Ortiz case, the Supreme Court found the exception did not apply and dismissed the appeal because the defendant had made a knowing and intelligent waiver of his right to appeal. Since Ortiz, however, the exception recognized in that case has been found to be applicable on a number of occasions. See State v. McDaniel, 249 Kan. 341, 345, 819 P.2d 1165 (1991); State v. Mitchell, 231 Kan. 144, 147, 642 P.2d 981 (1982); State v. Irvin, 16 Kan.App.2d 214, 217, 821 P.2d 1019 (1991).

Ortiz and the cases which have applied the exception addressed the failure to file an appeal within 130 days of sentencing. This case, by contrast, concerns an appeal filed before sentencing. The basic rationale of fundamental fairness to the defendant would seem to be the same, however, whether an appeal is filed too early or too late.

In this case, the State did not raise the issue that Rios had failed to properly perfect his appeal. This court on its own motion raised the jurisdictional issue by issuing an order to show cause why the appeal should not be dismissed. The parties were later directed to address in their briefs the possible application of Honeycutt v. City of Wichita, 251 Kan. 451, 836 P.2d 1128 (1992).

Honeycutt involved a civil suit for personal injuries. The plaintiff appealed the summary dismissal of two of the four defendants before final judgment was granted as to the remaining defendants. The Supreme Court noted that the summary judgments were not final judgments, 251 Kan. at 454, 836 P.2d 1128, but refused to dismiss the appeal. The court held that a premature appeal from an interlocutory order which has not been dismissed is validated by the entry of a final judgment disposing of all claims in the case.

In arriving at its conclusion, the court pointed out in Honeycutt that: "[t]he purpose of requiring a final decision prior to an appeal is to prevent intermediate and piecemeal appeals that extend and prolong litigation and add to the cost of litigation." 251 Kan. at 459, 836 P.2d 1128. The court, however, emphasized that "the judicial system should offer inexpensive and speedy justice to the citizens of this state and give a liberal construction to the statutes in order to insure that cases are decided on their merits and not to deny a party his or her day in court if the other party to the litigation has not been prejudiced." 251 Kan. at 461, 836 P.2d 1128.

Despite the fact that Honeycutt differs from this case both factually and procedurally, the underlying rationale of the Honeycutt holding is just as compelling in a criminal appeal. By emphasizing the importance of deciding cases on their merits, the Honeycutt holding would seem to encourage application of the Ortiz exception in appeals filed too early as well as those filed too late. Certainly, the State makes no claim that it was prejudiced by the fact that Rios' appeal was filed too early. "The appellee...