State v. Waterberry
Decision Date | 18 January 1991 |
Docket Number | No. 64990,64990 |
Parties | STATE of Kansas, Appellee, v. Robert R. WATERBERRY, Appellant. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. The general rule in Kansas is that an overruling decision should be applied retroactively to all similar cases pending at the time the decision was rendered.
2. Syl. pp 12 and 13 of State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), is applied
to cases pending in the courts of this state as of May 31, 1990, in which a defendant has entered a plea of guilty and the defect in the information has not prejudiced the defendant in the preparation of a defense, impaired the defendant's ability to raise a double jeopardy defense, or limited the defendant's substantial rights to a fair trial.
3. The sentencing judge sets the sentence to be served by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant's background, the facts of the case, and the public safety. A sentence imposed will not be disturbed on appeal if it is within the limits prescribed by law.
Lucille Marino, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.
Jennifer J. Kassebaum, Asst. County Atty., argued the cause, and Michael F. Powers, County Atty., and Robert T. Stephan, Atty. Gen., were on the brief, for appellee.
This is a direct appeal by Robert R. Waterberry from his conviction following a plea of guilty of one count of aggravated sodomy (K.S.A. 21-3506).
Waterberry contends that the information charging him with aggravated sodomy is fatally defective because it fails to allege he was not married to the victim when the act occurred and that the trial court abused its discretion in sentencing the defendant to a term of 10 years to life and in refusing to modify that sentence.
The information does not set forth the victim's sex, age, or that the defendant was not married to the victim when the act occurred. Waterberry argues the name of the victim is such that the victim could be either a male or female and, as a result of these omissions in the information, the information does not contain all the essential elements of the crime; thus, the trial court did not have jurisdiction.
In the past, this court has held that an information which omits an essential element of a crime is fatally defective for lack of jurisdiction. State v. Browning, 245 Kan. 26, 28, 774 P.2d 935 (1989). In State v. Jackson, 239 Kan. 463, 466-67, 721 P.2d 232 (1986), we held that the failure to allege in the information that the victim was not married to the accused was jurisdictional and reversed the conviction for aggravated sodomy.
In State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), this court reviewed jurisdiction as it applies to defective informations and unanimously adopted new rules to be applied prospectively to informations filed after May 31, 1990.
This court stated that, although the defendant could still challenge the sufficiency of the information for the first time on appeal, tardily challenged informations are to be construed liberally in favor of validity, and the longer the period between conviction and the challenge, the greater the presumption of regularity. 246 Kan. at 761, 764, 793 P.2d 737. We said:
246 Kan. at 754, 793 P.2d 737.
In summary, we adopted a prospective rule as follows:
246 Kan. at 765, 793 P.2d 737.
The State argues that we should apply a common-sense rule in this case and that the information could then be construed as containing the missing element. The argument made is that the information states the victim is under 16 years of age, has a different last name than the defendant, and has a first name that normally is a boy's name. This court is unwilling to do that. It is not uncommon today for married couples to use different last names, and the spelling used for the victim's first name in this case, while normally indicative of a boy, is not conclusive and is occasionally a name and spelling used by females. Taken separately or as a whole, the State's argument is insufficient to overcome the pre-Hall test as set forth in State v. Jackson.
The general rule in Kansas is that an overruling decision is applied retroactively to all similar cases pending as of the date of the overruling decision, regardless of when the cause of action accrued. In State v. Osbey, 238 Kan. 280, 283, 710 P.2d 676 (1985), this court said:
A majority of this court is of the opinion we were too restrictive in State v....
To continue reading
Request your trial-
Whisler v. State
...similar cases pending as of the date of the overruling decision, regardless of when the cause of action accrued." State v. Waterberry, 248 Kan. 169, 172, 804 P.2d 1000 (1991) (expanding its own restriction of the rule of State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), to include cases pen......
-
Stechschulte v. Jennings
...still pending on appeal when the new opinions are filed. See Murphy v. Nelson, 260 Kan. 589, 597, 921 P.2d 1225 (1996) (citing State v. Waterberry, 248 Kan. 169, Syl. ¶ 1, 804 P.2d 1000 [1991] ). An exception may be made when (1) the new opinion establishes a new rule of law; (2) retroactiv......
-
Murphy v. Nelson, 73848
...a decided case is binding not only on those cases arising in the future, but also on those pending when the case is decided. State v. Waterberry, 248 Kan. 169, Syl. p 1, 804 P.2d 1000 Although our analysis will necessarily primarily involve Sandin and the cases cited therein, as well as app......
-
Carmichael v. State
...filed after the filing date of the Hall decision, May 31, 1990. 246 Kan. 728, Syl. p 13, 793 P.2d 737. In State v. Waterberry, 248 Kan. 169, 172, 804 P.2d 1000 (1991), the court expanded Hall 's applicability to cases pending in the courts of this state as of May 31, 1990. We note the infor......