Thompson v. State, 44212
| Court | United States State Supreme Court of Kansas |
| Writing for the Court | PRICE |
| Citation | 195 Kan. 318,403 P.2d 1009 |
| Parties | Burton D. THOMPSON, Appellant, v. The STATE of Kansas, Appellee. |
| Docket Number | No. 44212,44212 |
| Decision Date | 10 July 1965 |
Page 1009
v.
The STATE of Kansas, Appellee.
Syllabus by the Court
In an appeal from an order denying a motion to vacate judgment and sentence (K.S.A. 60-1507), the record is examined and considered and it is held:
(1) Application of the habitual criminal statute does not constitute it an ex post facto law;
(2) Application of the habitual criminal statute does not constitute double jeopardy;
(3) A contention that defendant in a prior criminal prosecution was not given proper notice of the state's intention to invoke the habitual criminal statute is without merit, and
(4) The motion to vacate judgment and sentence was properly denied.
Karl W. Friedel, Wichita, argued the cause and was on the brief for appellant.
A. J. Focht, Deputy County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for appellee.
PRICE, Justice.
Plaintiff, Burton D. Thompson, being confined in the state penitentiary under a sentence of life imprisonment, filed a motion to vacate the judgment and sentence under the provisions of K.S.A. 60-1507.
He has appealed from an order and judgment denying relief, and the principal question presented is whether the state gave proper and sufficient notice of its intention to invoke the habitual criminal statute.
Although a proceeding under K.S.A. 60-1507 is an inquiry as to the validity
Page 1010
of a sentence imposed in a prior criminal prosecution, the proceeding is civil in nature and the movant is technically a 'plaintiff'. (Ramsey v. State, 194 Kan. 508, at pp. 509 and 510, 399 P.2d 881). We will, however, throughout this opinion refer to Thompson (movant--plaintiff--appellant) as defendant.The background of the matter is this:
[195 Kan. 319] In 1962, in the district court of Sedgwick county, defendant, being represented by experienced retained counsel, was convicted by a jury of the offense of attempting to cheat and defraud (G.S.1949, 21-101 and 21-551, now K.S.A. 21-101 and 21-551).
A motion for a new trial was filed and, after argument thereon was overruled. The court then inquired if there were any legal reasons why sentence should not be imposed. None being offered, the court proceeded to pronounce sentence, but was interrupted by the assistant county attorney who stated that he had evidence of prior convictions so as to invoke the habitual criminal statute (G.S.1949, 21-107a, now K.S.A. 21-107a). Counsel for defendant objected on the ground the state had not given proper notice of its intention to introduce such evidence. During a discussion of the matter between the court and counsel for both sides it was brought out and admitted that during the trial counsel for defendant had been...
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