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CITY OF DODGE CITY v. HADLEY4/18/1997
though Strader had not observed Hadley driving on the night of the arrest, he was of the opinion that Hadley could not have operated a vehicle safely due to his being under the influence of alcohol. His opinion testimony was admitted over defense counsel's objection.
Judgment was entered in municipal court against Hadley on charges of DUI and transportation of an open alcoholic beverage container. After sentencing, Hadley filed a notice of appeal of his convictions and sentence to district court. Trial took place in the district court on February 14, 1996. Before adjourning, the trial judge announced from the bench that he found Hadley guilty of both offenses. Upon being advised that Hadley already was in treatment for alcohol abuse, the trial judge stated to the city prosecutor and defense counsel: " f you would, please prepare a release for your treatment providers, Mr. Hadley. And, I will leave the
scheduling to the two of you for sentencing. I suppose that could occur any time after we get [Hadley's treatment records] released." The journal entry of conviction is file-stamped July 2, 1996. According to the journal entry of sentencing, sentencing occurred on March 15, 1996. The journal entry of sentencing is file-stamped June 17, 1996. The notice of appeal to the Court of Appeals was filed in the district court on July 2, 1996. It states that Hadley "does hereby appeal to the Court of Appeals . . . from the decision made and entered on the 14th day of February, 1996, and filed on the 2nd day of July, 1996."
In an order dated September 11, 1996, the Court of Appeals dismissed the appeal for lack of jurisdiction. The reasoning of the Court of Appeals was as follows:
"A criminal defendant has 10 days from judgment to file a notice of appeal. K.S.A. 22-3608(c). Judgment in a criminal case is sentencing, and the time to file a notice of appeal runs from oral pronouncement of sentence instead of the filing of a journal entry. State v. Bost, 21 Kan. App. 2d 560, Syl. 1, 903 P.2d 160 (1995).
"In the present case, Hadley was sentenced on March 15, 1996, but did not file his notice of appeal until July 2, 1996, beyond the 10-day limitation of K.S.A. 22-3608(c). . . . This court lacks jurisdiction over the appeal because the notice of appeal is untimely."
We first determine if this court has jurisdiction of the appeal. K.S.A. 22-3608 provides:
"(a) If sentence is imposed, the defendant may appeal from the judgment of the district court not later than 10 days after the expiration of the district court's power to modify the sentence. The power to revoke or modify the conditions of probation or the conditions of assignment to a community correctional services program shall not be deemed power to modify the sentence. The provisions of this subsection shall not apply to crimes committed on or after July 1, 1993.
"(b) If the imposition of sentence is suspended, the defendant may appeal from the judgment of the district court within 10 days after the order suspending imposition of sentence. The provisions of this subsection shall not apply to crimes committed on or after July 1, 1993.
"(c) For crimes committed on or after July 1, 1993, the defendant shall have 10 days after the judgment of the district court to appeal." By eliminating variables and conditions, the legislature simplified calculation of the deadline for filing a notice of appeal for crimes
committed on or after July 1, 1993. It does not appear, however, that the legislature succeeded in enacting a plain and completely unambiguous formulation. Defense counsel att
Page 1 2 3 4 5 6 7 8 9 Kansas DUI Attorneys
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