State v. Wilson
| Decision Date | 15 March 1991 |
| Docket Number | No. 65114,65114 |
| Citation | 15 Kan.App.2d 308,808 P.2d 434 |
| Parties | STATE of Kansas, Appellee, v. Melvin L. WILSON, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
Neither K.S.A. 22-3609a, which governs appeals from the decision of a district magistrate judge, nor the statute governing a motion for new trial in a criminal case, K.S.A. 22-3501, extends the time in which to file a notice of appeal from a magistrate judge's decision where the defendant elects to file such a motion after judgment is entered. These statutes are unlike the statute governing post-trial motions in a civil case, K.S.A. 1990 Supp. 60-2103(a), which specifically provides that the time for filing a notice of appeal is suspended while a party seeks relief from a judgment by filing timely post-trial motions.
Robert A. Levy, Garden City, for appellant.
Mary Ann Shirley, Asst. County Atty., Ricklin R. Pierce, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before LARSON, P.J., and RULON and PIERRON, JJ.
Melvin L. Wilson, defendant, appeals from a decision of the district court dismissing his appeal from a magistrate judge's ruling finding him guilty on two traffic counts. We affirm.
Wilson contends the district court erred in determining that the magistrate's letter ruling dated August 8, 1989, and filed August 10, 1989, constituted a "verdict or finding of guilty" as those terms are used in either K.S.A. 22-3501 or K.S.A. 22-3609a. He contends the judgment in this case was rendered on the date of sentencing, August 31, 1989; that his motion for new trial filed September 7, 1989, was timely filed within ten days of August 31, 1989, as required by K.S.A. 22-3501(1); and that his notice of appeal from the magistrate's judgment was timely filed within ten days of the denial of his motion for new trial, as required by K.S.A. 22-3609a. We disagree.
Resolution of the issue in this case obviously turns on the proper interpretation of jurisdictional statutes. Statutory interpretation is a question of law, and this court's function is to interpret a statute to give it the effect intended by the legislature. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984); White v. VinZant, 13 Kan.App.2d 467, 471, 773 P.2d 1169 (1989). This court may construe and determine the legal effect of a statute regardless of the construction adopted by the trial court. Palmer v. First Nat'l Bank of Kingman, 10 Kan.App.2d 84, 86, 692 P.2d 386 (1984).
Appeals from the judgment of a district magistrate judge are governed by K.S.A. 22-3609a, the relevant portion of which provides:
Also relevant to this case is the statute governing motions for a new trial, K.S.A. 22-3501, which provides:
Generally, the filing of a timely notice of appeal is jurisdictional and, if the record discloses a lack of jurisdiction, the appellate court has a duty to dismiss the appeal. State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). In this case, two questions must be answered in determining whether Wilson's notice of appeal to the district court was timely filed: (1) When was the magistrate's judgment rendered, and (2) did Wilson's September 7, 1989, motion for new trial extend the time in which to file a notice of appeal?
Generally, an order finding a defendant guilty is not an appealable judgment until sentence is imposed or the imposition of sentence is suspended. Roberts v. State, 197 Kan. 687, 689, 421 P.2d 48 (1966); State v. Woodbury, 133 Kan. 1, 298 P. 794 (1931); State v. Rucas, 12 Kan.App.2d 68, 72, 734 P.2d 673 (1987); City of Topeka v. Martin, 3 Kan.App.2d 105, 590 P.2d 106 (1979). The 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. Moses, 227 Kan. at 402-03, 607 P.2d 477.
Wilson principally relies upon two statutes in asserting that August 31, 1989, was the actual date of the judgment in this case. He cites K.S.A. 22-3405(2), which requires the defendant or his counsel to be present at every stage of a traffic infraction and misdemeanor case, and K.S.A. 22-3424(1), which requires a judgment to be rendered and sentence imposed in open court. He argues that Magistrate Blake's August 8, 1989, letter did not constitute "open court" and, because neither he nor his counsel appeared on August 8, 1989, the actual date of the judgment must have been August 31, 1989.
Wilson is correct in his assertion that Magistrate Blake's August 8 letter ruling does not constitute a judgment. Although the letter ostensibly was a "finding of guilty" within the meaning of K.S.A. 22-3501 which governs motions for a new trial, Magistrate Blake's finding of guilty was not announced in open court, nor was Wilson or his counsel present when the finding was announced. The judgment of the magistrate must be announced in open court, and either the defendant or the defendant's counsel must be present. K.S.A. 22-3424(1); K.S.A. 22-3405(2). Thus, the August 8, 1989, letter cannot be considered the judgment of the magistrate within the meaning of K.S.A. 22-3609a.
In this case, the district court did not specify whether the time for filing a timely notice of appeal began to run on August 8, 1989, or August 31, 1989. However, because the notice of appeal had to have been filed within ten days of the judgment and it was not filed until February 26, 1990, no such determination was needed as the notice was clearly untimely. While judgment in this case was not rendered until August 31, 1989, the later judgment date is of no avail to Wilson in this appeal. Judgment in this case was rendered on the date of Wilson's sentencing, August 31, 1989, and the notice of appeal must have been filed by September 14, 1989, to be considered timely. See K.S.A.1990 Supp. 60-206(a). His notice of appeal to the district court, filed February 26, 1990, was untimely unless some exception to the ten-day time limit applies.
The appellate courts have generally recognized two exceptions to the time limits in criminal cases. In State v. Ortiz, 230 The second exception is illustrated by State v. Myers, 10 Kan.App.2d 266, 697 P.2d 879 (1985). The Myers exception applies when the defendant has filed a timely motion to modify the sentence imposed, but the district court does not rule on the motion within the 120-day period provided in K.S.A.1990 Supp. 21-4603(4). In such a case, the defendant must file a notice of appeal within ten days of the filing of the journal entry deciding the motion to modify sentence. 10 Kan.App.2d at 270-71, 697 P.2d 879. Wilson's argument that his notice of appeal was timely filed because he filed it within ten days of Magistrate Goering's decision denying his motion for new trial appears to be based on an analogy to this court's holding in Myers, although the case is not cited in his brief.
Kan. 733, 640 P.2d 1255 (1982), the Kansas Supreme Court recognized an exception when an indigent defendant...To continue reading
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