Tyrell v. State, 44813
| Decision Date | 13 May 1967 |
| Docket Number | No. 44813,44813 |
| Citation | 199 Kan. 142,427 P.2d 500 |
| Parties | Richard D. TYRELL, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Evidence of prior convictions by a court of a sister state of felonies, as defined by a statute of the sister state, may be properly received by a trial court of this state when imposing sentence under K.S.A. 21-107a.
2. The record in a proceeding commenced pursuant to K.S.A. 60-1507 is examined and it is held: Petitioner was not denied dur process of law when sentenced according to the provisions of K.S.A. 21-107a.
Keith G. Sebelius, Norton, argued the cause and was on the briefs, for appellant.
Elmo Lund, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the briefs, for appellee.
This is an appeal by the petitioner, Richard D. Tyrell, from a ruling of the trial court denying relief in proceedings under K.S.A. 60-1507.
On January 5, 1965, the petitioner was convicted of forgery in the third degree (K.S.A. 21-616) after entering a plea of guilty. The trial court admitted evidence of two prior convictions and imposed sentence of not less than fifteen years in the Kansas State Penitentiary pursuant to K.S.A. 21-616, 21-631 and 21-107a.
Thereafter the motion involved in this appeal was filed. On June 2, 1965, the trial court made findings of fact and conclusions of law on petitioner's motion and held he motion, files and records conclusively showed that petitioner was entitled to no relief. Present counsel was appointed and perfected this appeal.
Petitioner presents three points for review. All of his contentions have to do with the imposition of an enhanced sentence pursuant to the Habitual Criminal Act (21-107a, supra.)
Petitioner's first, and principal, contention is that he did not have adequate notice of the state's intention to invoke the provisions of the Habitual Criminal Act. In this connection the trial court set out a portion of the transcript of the sentencing proceedings and found that petitioner's present contentions are absolutely contrary to his statements at the time of his plea in the criminal action. The record shows that petitioner was represented by counsel at his preliminary hearing and that the same counsel was appointed in the district court. The transcript of the sentencing proceedings discloses the following:
'(Thereupon, State's Exhibits No. 1 and No. 2 were marked identification.)
'(Thereupon, State's Exhibits No. 1 and No. 2 were handed to the Judge for examination.)'
It is obvious, from the above quoted portions of the transcript showing petitioner's own admissions and the statement of his counsel, that the records of the prior convictions had been previously examined and further that the petitioner and his attorney both knew of the state's intention to invoke the Habitual Criminal Act. It follows that we must agree with the trial court's findings in this regard that the record conclusively shows petitioner and his attorney had adequate notice.
The state offered evidence of a prior felony conviction on November 16, 1959, in the Trego County district court, about which petitioner makes no complaint, and felony convictions in the district court of Red Willow County, Nebraska, on March 23, 1961, about which petitioner makes his second and third contentions.
Petitioner claims the Nebraska convictions could not be used for the reason that the offenses charged therein were not felonies under Kansas law. The Nebraska convictions referred to stemmed from nine counts in which felonious violations of the Nebraska no-fund check law (Section 28-1212, Neb.R.R.S.1943) were charged. Petitioner entered a plea of guilty and was sentenced to an indeterminate period of not less that one year nor more than eighteen months at hard labor in the State Reformatory for men at Lincoln, Nebraska. The sentence amounts to punishment by which a felony is defined in Section 29-102, Neb.R.R.S.1943.
Petitioner argues that since each noaccount check, involved in the Nebraska convictions, was for an amount less than $50 such offenses would have been misdemeanors rather than felonies under the Kansas law and therefore the Nebraska convictions cannot be considered felony convictions within the provisions of 21-107a, supra.
Our statute provides that judgment in such cases shall not be given for increased penalty unless the court shall find from the record and other competent evidence the fact of former convictions for felony committed by the prisoner 'in or out of this state.' In State v. Stiff, 148 Kan. 224, 80 P.2d 1089 (rehearing 148 Kan. 457, 83 P.2d 424), the state sought an increased penalty based upon prior federal court convictions for conspiracy. The defendant argued that conspiracy was not a felony under the Kansas statutes, since conspiracy was not declared to be a crime under Kansas law. We stated:
...
To continue reading
Request your trial
-
State v. Paxton
...of this state; it is sufficient that the offense was a felony as defined by the law of such other state or jurisdiction. (Tyrell v. State, 199 Kan. 142, 427 P.2d 500; State v. Stiff, 148 Kan. 224, 80 P.2d 1089, rehearing 148 Kan. 457, 83 P.2d 424.) Courts-martial convictions frequently rela......
-
State v. Coltharp, 44586
...not have been convicted of a crime in this state at the time does not avail defendant. Our holding in the recent case of Tyrell v. State, 199 Kan. 142, 427 P.2d 500, resolves the issue. It was 'Evidence of prior convictions by a court of a sister state of felonies, as defined by a statute o......
-
State v. Crowe
...of this state; it is sufficient that the offense was a felony as defined by the laws of the other state or jurisdiction (Tyrell v. State, 199 Kan. 142, 427 P.2d 500; State v. Paxton, 201 Kan. 353, 440 P.2d 650). The trial court did not err in invoking the provisions of the habitual criminal......
-
Tyrrell v. Crouse
...than fifteen years, imposed in 1965, upon his plea of guilty to third-degree forgery. He has exhausted state remedies. Tyrell v. State, 199 Kan. 142, 427 P.2d 500 (1967). He attacks his sentence as an habitual offender on the grounds that he was not advised of invocation of the habitual cri......