State v. Taylor, 50176

• Decision Date: 04 May 1979
• Docket Number: No. 50176,50176
• Citation: 594 P.2d 262,3 Kan.App.2d 316
• Parties: STATE of Kansas, Appellee, v. Leonard W. TAYLOR, Appellant.
• Court: Kansas Court of Appeals

Page 262

594 P.2d 262

3 Kan.App.2d 316

STATE of Kansas, Appellee, v. Leonard W. TAYLOR, Appellant.

No. 50176.

Court of Appeals of Kansas.

May 4, 1979.

Syllabus by the Court

1. The arraignment in a criminal proceeding is the formal act of calling the defendant before a court having jurisdiction to impose sentence for the offense charged, informing the defendant of the offense charged by reading the complaint, information or indictment or stating to him the substance of the charge, and asking defendant whether he is guilty or not guilty or to otherwise plead as permissible by law.

2. When an arrest is made in the county where the crime charged is alleged to have been committed, the person arrested is to be taken without unnecessary delay before a magistrate of the court from which the warrant was issued. This appearance before a magistrate is commonly known as the first appearance.

3. The purpose of the first appearance is to insure that any person arrested is held on a proper charge and to secure to such person the earliest opportunity for bail.

4. The date of arraignment controls application of K.S.A. 1978 Supp. 22-3402(1).

5. The constitutional guaranty of a speedy trial attaches when one becomes accused and the criminal prosecution begins.

6. In an action where it is claimed defendant was denied a speedy trial, the factors to be considered upon a constitutional claim of denial of speedy trial as identified in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), are reviewed and it is Held : Defendant was not denied speedy trial.

Max Rowinsky, Asst. Public Defender, Topeka, for appellant.

Gene M. Olander, Dist. Atty. and Curt T. Schneider, Atty. Gen., for appellee.

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

REES, Judge:

Defendant appeals from his conviction of aggravated assault (K.S.A. 21-3410), a felony.

Defendant had been employed by the Kansas Department of Human Resources. He was terminated effective August 31, 1977. On September 19, 1977, he visited his former supervisor, Gabriel Faimon. Faimon testified that defendant asked for his last paycheck and when informed it would not be available until the end of the month, defendant pulled a butcher knife out of a bag he was carrying and made a thrust at Faimon. An investigating officer testified that defendant's explanation of his conduct was that while visiting Faimon, defendant took out his fourteen-inch-long fingernail cleaner and Faimon became upset. The defendant told the officer that he had no intention of harming Faimon and after they had talked, he left the office. Defendant did not testify and presented no evidence.

Defendant first contends the court erred in failing to dismiss the charges pursuant to K.S.A. 1978 Supp. 22-3402(1), which provides:

"If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court . . . ."

The incident occurred on September 19, 1977. A complaint was filed on September 21 and defendant was arrested. On September 22, defendant appeared before an associate district judge. The appearance docket reflects the following entry for that date:

"Defendant formally arraigned, advised of right to counsel and trial/preliminary hearing. Bond set at $2,500 with surety. Committed in default of $2,500 w/s bond. Public defenders appointed and notified."

On September 28, defense counsel filed a motion to determine competency which was granted the next day. Defendant was seen by a psychiatrist on two occasions, the last being on October 4, and found competent to stand trial. The date the psychiatrist's report was filed is not indicated in the record.

Thereafter nothing happened until December 21, when defendant moved to dismiss pursuant to K.S.A. 1978 Supp. 22-3402. On January 4, 1978, the court overruled the motion to dismiss and set the case for preliminary hearing on January 13; the preliminary hearing was held; defendant was bound over for trial; and an information was filed on January 18. On January 27, defendant was arraigned and the following entry was made in the appearance docket:

"Def appears in person and by Joseph Johnson, Pub Def; state appears by Gene Olander, DA. Thereupon def formally arraigned & stands mute. The Court enters a plea of not guilty for def. . . . Def remanded to custody in absence of bond."

On March 20, defendant was tried and found guilty.

The issue, as framed by the parties, is whether defendant's first appearance on September 22, 1977, before an associate district judge constituted his "arraignment" within the meaning of K.S.A. 1978 Supp. 22-3402 so as to start the running of the ninety (90) day period within which trial is required.

A review of the procedural statutes may be helpful. A prosecution is commenced by filing a complaint, indictment or information. K.S.A. 1978 Supp. 22-2301; K.S.A. 22-2303; K.S.A. 1978 Supp. 22-3201. When commenced, as here, by complaint, a warrant is issued upon a magistrate's determination that there is probable cause to believe both that a crime has been committed and that defendant committed it. K.S.A. 22-2302. A "magistrate" is an officer having power to issue a warrant for the arrest of a person charged with a crime and includes the judges of the district court. K.S.A. 1978 Supp. 22-2202(12). When an arrest is made in the county where the crime charged is alleged to have been committed, the person arrested is to be taken without unnecessary delay before a magistrate of the court from which the warrant was issued. K.S.A. 22-2901(1). This is commonly known as the "first appearance." Every person arrested on a warrant charging a felony then has the right to a preliminary hearing examination, or preliminary hearing, before a magistrate. If from the evidence the magistrate determines that a felony has been committed and there is probable cause to believe that defendant committed it, the defendant is bound over to the district judge or associate district judge having jurisdiction to try the case. Any judge of the district court may conduct the preliminary hearing and a district judge or associate district judge may thereafter preside at trial even though such judge presided at the preliminary hearing. K.S.A. 1978 Supp. 22-2202(14); K.S.A. 1978 Supp. 22-2902. When the defendant is bound over for trial, the prosecutor files an information charging the crime for which defendant was bound over. K.S.A. 1978 Supp. 22-2905(1). The defendant is then arraigned, not later than the next required day of court which occurs ten or more days after the order of the magistrate binding the defendant over for trial, unless a later time is approved or ordered by the court. K.S.A. 1978 Supp. 22-3206(1). Arraignment consists of reading the complaint, information or indictment to the defendant or stating to him the substance of the charge and calling upon him to plead thereto. K.S.A. 22-3205. "Arraignment" is also defined as:

"(T)he formal act of calling the defendant before a court having jurisdiction to impose sentence for the offense charged, informing said defendant of the offense with which said defendant is charged, and asking said defendant whether he or she is guilty or not guilty." K.S.A. 1978 Supp. 22-2202(2).

It has been recognized that the term "arraignment" is sometimes loosely used. McCuan v. State, 196 Kan. 457, 413 P.2d 69 (1966); Goodwin v. State, 195 Kan. 414, 407 P.2d 528 (1965). In Goodwin, which admittedly was decided prior to the enactment of our present code of criminal procedure and the recent unification of our courts, the issue was whether defendant had been denied his right to counsel at arraignment, where he was without counsel at his first appearance. The court held that the first appearance could not properly be termed an arraignment, although noting that the record indicated, as does the record here, that the defendant had at that time been "duly arraigned." The court found the magistrate at the defendant's first appearance had no authority to arraign a person charged with a felony and that acceptance of a plea by the magistrate was a nullity. 195 Kan. at 418-419, 407 P.2d 528.

In the present case, the associate district judge who presided as a magistrate at defendant's first appearance had the authority to arraign defendant because an associate district judge is empowered to impose sentence upon a person found guilty of a felony. Defendant's argument that this distinguishes Goodwin has some superficial appeal but we do not find it persuasive in determining whether the first appearance in this case constituted defendant's arraignment so as to bring K.S.A. 1978 Supp. 22-3402 into play. The statutes clearly contemplate that the felony arraignment is to occur only after a preliminary hearing, as a result of which the defendant has been bound over for trial, and after the prosecutor has filed an information charging the crime for which defendant has been bound over. K.S.A. 1978 Supp. 22-2902, 22-3206. A defendant may, of course, waive the preliminary hearing. The record here reflects no waiver and at the time of the first appearance no information had been filed, only a complaint.

The purpose of the first appearance pursuant to K.S.A. 22-2901 is to insure that any person arrested is held on a proper charge and to secure to such person the earliest possible opportunity for bail. State v. Nading,214 Kan. 249, 252, 519 P.2d 714 (1974). A statement by defendant of his plea at his first appearance in a felony case is gratuitous and does not convert the proceeding into an arraignment. Thus, the ninety day statutory period did not begin to run until the formal arraignment of ...