State v. Roberts

Decision Date02 September 2011
Docket NumberNo. 100,233.,100,233.
Citation293 Kan. 29,259 P.3d 691
PartiesSTATE of Kansas, Appellant,v.Chester ROBERTS, III, Appellee.
CourtKansas Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court

1. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes.

2. The interpretation of statutes and the determination of jurisdiction involve questions of law over which this court's scope of review is unlimited.

3. While K.S.A. 22–3602(b)(1) grants the State the right to appeal an order dismissing a complaint, information, or indictment, the State does not have the right to appeal a judgment of acquittal because appellate review of the decision after acquittal would constitute double jeopardy.

4. An acquittal that cannot be appealed by the State is a judgment that resolves some or all of the factual elements of the offense charged after jeopardy has attached.

5. Jeopardy attaches only when a jury is impaneled and sworn or in a bench trial when the judge begins to receive evidence.

6. K.S.A. 21–3108(1)(b) does not preclude the State from appealing an order of dismissal if the appeal is not otherwise barred.

7. Under the facts of this case where an order of dismissal was entered before trial, meaning before jeopardy had attached, the order was not a judgment of acquittal and the State's appeal was not barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

Amanda G. Voth, assistant district attorney, argued the cause, and Benjamin J. Fisher, senior assistant district attorney, Keith E. Schroeder, district attorney, and Steve Six, attorney general, were on the brief for appellant. Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by LUCKERT, J.:

In a pretrial ruling in this criminal case, the district court ruled that the defendant could not be charged with violating K.S.A. 2007 Supp. 65–4160(a), a drug severity level 4 felony, for possessing without a prescription a generic form of the prescription drug Lortab, a schedule III drug. The issue before us is whether the district court's ruling was a judgment of acquittal, which is an order the State cannot appeal, or was an order of dismissal, which is an order the State can appeal. We conclude the order was an order of dismissal because it was issued before jeopardy attached.

Factual and Procedural Background

In December 2007, Chester Roberts, III, was arrested for the unlawful possession of prescription drugs after he was found in possession of a single tablet of generic Lortab, a pain reliever containing acetaminophen and 5 milligrams of hydrocodone bitrate, for which he had no prescription. Under the version of the Uniform Controlled Substances Act in effect at that time, the State charged Roberts with one count of possession of hydrocodone in violation of K.S.A. 2007 Supp. 65–4160(a), a drug severity level 4 felony.

Roberts waived his preliminary hearing and formal arraignment and was bound over for trial. Then, he filed a pretrial motion to dismiss the charge, claiming the State would not be able to present any evidence that he possessed hydrocodone as a schedule II controlled substance, which he contended was required for a conviction under K.S.A. 2007 Supp. 65–4160(a). He essentially argued that K.S.A. 2007 Supp. 65–4160(a), which criminalizes, in part, the possession of “any opiates, opium or narcotic drugs,” specifically applies to schedule II controlled substances and does not include schedule III “hydrocodone combination products,” such as generic Lortab.

In response, the State did not dispute that Roberts possessed generic Lortab or that generic Lortab falls into schedule III because it is a compound composed of acetaminophen and a small amount of hydrocodone. In fact, the State's response to Roberts' motion to dismiss included a copy of the forensic lab report of the Kansas Bureau of Investigation, which characterized the tested substance as [h]ydrocodone in a schedule III preparation.” The State did disagree with Roberts' legal argument, however, and asserted that K.S.A. 2007 Supp. 65–4160(a) criminalizes the possession of generic Lortab. (This same issue is being appealed in State v. Collins, No. 101,092, 2010 WL 596996 [Kan.App.2010] [unpublished opinion], rev. granted January 10, 2011).

The district court accepted Roberts' argument and granted the motion to dismiss the felony charges. The district court then considered a motion to amend that the State had filed. In the motion to amend, the State, congruous with its argument that K.S.A. 2007 Supp. 65–4160(a) should be interpreted broadly, sought permission to amend the complaint to change the phrase “possess or have under his control an opiate drug, to-wit: Hydrocodone” into “possess or have under his control an opiate narcotic drug, to-wit: hydrocodone.” The district judge did not permit the State to amend its complaint, stating:

“If the [S]tate wants to amend to a misdemeanor, they'll have that right. If they want to amend to a felony then the court will not grant the right.

....

“... If you want to refile it as a felony then I suspect another judge will rule on it, or I will rule on it if it comes back to me. If you [do not] file it as a misdemeanor, do not think that's appropriate, then your option is to file it as a felony ... before a new judge.”

Court of Appeals' Decision

The State appealed the district court's order of dismissal under K.S.A. 22–3602(b)(1), which permits the prosecution to take an appeal as a matter of right from “an order dismissing a complaint, information or indictment.” See State v. Roberts, No. 100,233, 2009 WL 744410 (Kan.App.2009) (unpublished opinion), rev. granted January 8, 2010. The State argued that the district court erred in its interpretation of K.S.A. 2007 Supp. 65–4160 and in dismissing the charge against Roberts.

In response, Roberts argued that (1) the State could not appeal the district court's dismissal because the court's order was equivalent to a judgment of acquittal from which an appeal is barred by K.S.A. 21–3108(1)(b) and the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and (2) even if the State's appeal was permissible, the district court did not err in dismissing the charge.

With regard to the jurisdiction issue, the Court of Appeals observed that under K.S.A. 21–3108(1)(a), a subsequent prosecution of a defendant is barred if the defendant was formerly prosecuted for the same crime, based on the same facts, if such former prosecution resulted in a conviction, acquittal, or determination that the evidence was insufficient to warrant a conviction. The Court of Appeals further recognized that a judgment of acquittal terminates a prosecution and double jeopardy principles bar further proceedings against the defendant for that offense, but jeopardy must have attached for the prosecution to be precluded. Roberts, 2009 WL 744410, at *2.

The Court of Appeals noted that a defendant is generally not in jeopardy in a case tried to the district court until the court begins to hear evidence. It then pointed out that, although before dismissing the criminal complaint in the present case the district court made the factual finding that the drug, generic Lortab, was a schedule III controlled substance, the district court heard no witness testimony and ruled “solely based upon Roberts' motion to dismiss and the State's response.” Roberts, 2009 WL 744410, at *2. Consequently, the panel found that jeopardy did not attach and there was no Fifth Amendment violation preventing further prosecution of Roberts' alleged offense. Roberts, 2009 WL 744410, at *2.

With regard to the merits of the district court's decision to dismiss the criminal complaint, the Court of Appeals simply affirmed. No legal analysis was provided. The Court of Appeals gave the following succinct holding: We affirm the district court's decision of dismissal. The dismissal is not an acquittal; therefore, double jeopardy did not attach.” Roberts, 2009 WL 744410, at *3.

This court granted the petition for review filed by Roberts, in which he raises the sole issue of whether the State was barred from appealing the district court's order of dismissal because the order was equivalent to a judgment of acquittal. Roberts contends the district court acquitted him of the charge; therefore, K.S.A. 21–3108(1)(a) and double jeopardy principles would bar the State from appealing the district court's decision and from prosecuting Roberts a second time for the same act (possession of hydrocodone).

The defense's request for dismissal of the charge was granted in Roberts' favor and affirmed by the Court of Appeals. Therefore, Roberts does not request this court's review of that issue, and the State did not file a cross-petition for review. Consequently, the underlying merits of this case, i.e., whether the district court erred in dismissing the complaint and in making the legal conclusion that felony possession under K.S.A. 2007 Supp. 65–4160(a) does not include schedule III hydrocodone, are not before this court.

Our jurisdiction arises from K.S.A. 22–3602(e) (petition for review) and K.S.A. 20–3018(b) (same).

Analysis

Roberts frames his argument as one of appellate jurisdiction, arguing the State only has the right to appeal the district court's pretrial order if it is a dismissal of the complaint pursuant to K.S.A. 22–3602(b)(1) and the State cannot appeal an acquittal.

Standard of Review

Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. See State v. Legero, 278 Kan. 109, 111, 91 P.3d 1216 (2004). Hence, we must examine the statutory authority for the State's appeal in order to resolve the issue raised by Roberts. The interpretation of statut...

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