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City of Wichita v. Marlett3/28/2003
Affirmed.
The City of Wichita seeks reversal of the district court's decision disallowing amendment of its complaint against defendant Christopher J. Marlett after he appealed his municipal conviction to the district court.
We must decide whether the City's failure to include the severity level for its original charge of driving under the influence (DUI) dooms its later attempt to include the appropriate severity level in the district court proceeding. We have jurisdiction pursuant to K.S.A. 2002 Supp. 22-3602(b)(3), because this issue is one of statewide interest reserved by the prosecution.
Resolution of this case requires interpretation of K.S.A. 22-3610. We thus have unlimited review. See State v. Murry, 271 Kan. 223, 224, 21 P.3d 528 (2001).
K.S.A. 22-3610(a) states:
"When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint, unless the complaint shall be found defective, in which case the court may order a new complaint to be filed and the case shall proceed as if the original complaint had not been set aside." (Emphasis added.)
In other words, if a complaint that fails to allege the appropriate severity level for a DUI charge is "defective," the City was entitled to amend the complaint against Marlett on appeal to the district court. If not, the City was properly forced to live with its mistake.
The district court relied on State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996), and State v. Larson, 265 Kan. 160, 958 P.2d 1154 (1998), to rule that the City's original complaint had not been defective. The judge also ruled that allowing the City to amend its complaint would violate Marlett's due process rights based on Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628, 945 S. Ct. 2098 (1974).
In Masterson, the State charged the defendant with violation of "[K.S.A.] 8-1567 Class A or B misdemeanor or Severity Level 9 Felony, to be determined at sentencing." At the bond hearing, the State said it would be trying a B misdemeanor and amended its complaint to reflect this plan. At sentencing, the State asked the court to sentence the defendant as a second offender, i.e., as if he had been convicted of a class A misdemeanor, because it had learned the defendant had a prior DUI diversion at the time the complaint was filed, and the defendant's record of prior offenses should be relevant only for determining the severity level of the crime charged. The district court disagreed and sentenced the defendant for a class B misdemeanor.
The State appealed, arguing the defendant should have been sentenced as a second-time offender. The Kansas Supreme Court affirmed. Although proof of a prior conviction was not an element of the offense, "a defendant is entitled under due process to notice in the information or complaint of the severity level of the DUI offense being charged . . . ." 261 Kan. at 163.
The holding in Masterson was extended to charges and convictions in municipal court and their appeals in City of Dodge City v. Wetzel, 267 Kan. 402, 410, 986 P.2d 353 (1999). There, the Kansas Supreme Court effectively reversed the district court's decision to grant the City of Dodge City's motion to correct the defendant's sentence for DUI from that due a first-time offender to that due a second-time offender, even though the City had not given notice of the severity level of the crime charged. 267 Kan. at 410.
Next, in Larson, the Kansas Supreme Court clarified the implications of Masterson when the defendant's motion to arrest judgment was granted because the State had failed to plead the severity level of his DUI of
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