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CITY OF DODGE CITY v. DOWNING4/21/1995
The opinion of the court was delivered by
The City of Dodge City (City) appeals from an order of the district court dismissing a criminal case against Gregory A. Downing on the grounds that the case was not brought to trial within the 180 days required by K.S.A. 22-3402(2). The City contends that the court erred by failing to deduct 30 days occasioned by the defendant's motion for suppression of evidence. We agree, and reverse and remand for further proceedings.
The facts in this case are not disputed. The parties have entered into the following agreed statement of facts pursuant to Supreme Court Rule 3.05 (1994 Kan. Ct. R. Annot. 20):
"The defendant, Gregory A. Downing, was charged on February 28, 1993, in the Municipal Court of the City of Dodge City, having violated the City Ordinance
against driving a motor vehicle under the influence of alcohol. On March 19, 1993, he pleaded not guilty and was tried by the City Judge of the City of Dodge City on October 20, 1993. The City Judge found the defendant guilty of driving a motor vehicle under the influence of alcohol.
"The defendant appealed his conviction by filing a Notice of Appeal in the District Court of Ford County, Kansas, on November 2, 1993.
"A pretrial conference was held on December 20, 1993, in front of District Judge Daniel L. Love. At that time, the defendant moved the Court to suppress the Intoxilyzer-Alcohol Analyzer test results obtained from the defendant by the Dodge City Police Department on February 28, 1993.
"Judge Love ordered the parties to submit briefs on the issue of whether the Intoxilyzer test results should be suppressed. Judge Love ordered that those briefs be filed with the court by January 5, 1994. Both the plaintiff and the defendant filed their briefs with the Court, and the Court took the defendant's Motion under advisement.
"On April 4, 1994, the District Judge entered his ruling, denying the defendant's Motion to Suppress the Intoxilyzer test results.
"On April 19, 1994, the City of Dodge City, through its attorney, Terry J. Malone, requested the District Court to schedule the case for trial. On April 25, 1994, the parties received notice that the District Court ordered the case be tried on April 29, 1994. The City Prosecutor orally informed the Court and the defense attorney that he would be unavailable for trial on April 29, 1994, and that the matter would have to be continued. The City Prosecutor contacted Judge Love on or about April 27 to inform him that he would not be available on April 29 for trial. The City Prosecutor informed Judge Love that he had informed attorney Leslie Hess of his unavailability and would be needing a continuance. Judge Love ordered a continuance based upon the status of the Court's docket which was incorrect. The continuance was at the request of the City Prosecutor.
"The actual reason for the continuance was the unavailability of the City Prosecutor to be at trial on April 29, 1994, and the City Prosecutor requested the continuance to May 25, 1994. The continuance was not because of other cases pending for trial on the Court's docket.
"On May 6, 1994, the defendant filed his Motion to Dismiss with the District Court. As grounds for the Motion for Dismissal, the defendant alleged that he had not been brought to trial within 180 days pursuant to K.S.A. 22-3402.
"On May 13, 1994, the District Court Judge Daniel L. Love convened a hearing to hear arguments concerning the defendant's Motion to Dismiss. On May 13, 1994, the District Court Judge
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