State v. Shofler, 56374
| Decision Date | 06 September 1984 |
| Docket Number | No. 56374,56374 |
| Citation | 9 Kan.App.2d 696,687 P.2d 29 |
| Parties | STATE of Kansas, Appellee, v. Kenneth W. SHOFLER, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. A complaint that fails to allege facts constituting a crime is fatally defective and a conviction based upon it is void for lack of subject matter jurisdiction.
2. Lack of jurisdiction or the failure of the complaint, information or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding.
3. In this appeal from conviction of obstructing legal process or official duty under K.S.A. 21-3808, it is held: The notice and complaint used failed to allege any of the essential facts constituting the crime charged and did not recite the language prescribed by K.S.A. 22-3201(2).
Curtis E. Watkins of Geisert, McKenna & Watkins, P.A., Kingman, for appellant.
Larry T. Solomon, County Atty. and Robert T. Stephan, Atty. Gen., for appellee.
Before BRISCOE, P.J., and ABBOTT and SWINEHART, JJ.
Kenneth Shofler, the defendant, appeals a conviction of obstructing legal process or official duty (K.S.A. 21-3808).
On October 19, 1982, a Kansas highway patrolman stopped a pickup truck on Highway 54 in Kingman County for speeding. Ronald Shofler, the defendant's brother, was driving; the defendant was a passenger. Ronald Shofler was arrested for driving under the influence, driving with a suspended license, and speeding.
After noting defendant's movement in the truck during the arrest of defendant's brother, the officer returned to the truck and asked the defendant to step out. As the defendant left the truck, the officer observed two open bottles of beer in the passenger compartment. He also saw a studded dog collar, a carpet knife, and what appeared to be a billy club, all of which he believed were weapons. The officer then opened the glove compartment where he found a plastic bag containing a green leafy substance. Upon inquiry, neither brother acknowledged ownership of the bag. The officer then arrested both for possession of marijuana. Although the defendant was not handcuffed, he was placed in the back seat of the officer's car along with the bag, collar and club. His brother, who was handcuffed, rode in the front on their return to Kingman.
As they neared Kingman, the officer saw the defendant move toward the middle of the back seat. The officer ordered the defendant to stop moving around because the officer's rifle was in the back and the defendant's movement was making him nervous.
The defendant continued to move about in the back seat. When the officer saw him roll down the window and grab for something, he stopped the car. The defendant then grabbed the bag, jumped out of the car, and ran down the highway, scattering the contents of the bag to the wind. The officer caught up to the defendant after the bag was empty.
At the conclusion of this scenario, the defendant was charged with escape from custody (K.S.A. 21-3809), obstructing legal process or official duty (K.S.A. 21-3808), and unlawful walking in a roadway (K.S.A. 8-1537). He was tried only on the obstructing legal process charge. The jury found him guilty and the court sentenced him to 90 days in jail, followed by two years of probation.
The defendant raises five issues on appeal. We need not reach these issues, however, as we find the trial court was without subject matter jurisdiction.
A highway patrol "Uniform Notice to Appear and Complaint" was used in this case to charge defendant with violation of K.S.A. 21-3808, obstructing legal process or official duty. Under K.S.A. 8-2106, an officer may issue a notice to appear for misdemeanor traffic violations. This abbreviated notice and complaint is insufficient to charge the violation of K.S.A. 21-3808.
K.S.A. 22-3201(2) provides:
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...in a court that lacks jurisdiction is void. State v. Larson, 265 Kan. 160, 161, 958 P.2d 1154 (1998) (citing State v. Shofler, 9 Kan.App.2d 696, 687 P.2d 29 (1984)). Mr. Elliott's failure to object to the classification of his prior DUI convictions at sentencing hearings for prior convictio......
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