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CITY OF DODGE CITY v. HADLEY4/18/1997
ached to the petition for review an affidavit, which states in part:
"1. My name is Leslie Phelps Hess and I was counsel for the defendant/appellant during the district court trial of his D.U.I. and transportation of an open container ticket in Ford County and the subsequent appeal to the Court of Appeals.
"2. After the court trial's finding of guilt upon the defendant/appellant, the defendant/appellant requested trial counsel to appeal the judge's decision.
"3. The defendant/appellant was notified by counsel that an appeal could not be filed until such time as the journal entry of conviction had been filed and the sentencing had occurred.
"4. It has always been the defendant/appellant's intention to appeal the district court's finding of his guilt on the D.U.I. charge and the transportation of an open container charge.
"5. The sole reason the appeal was not timely filed was based upon the mistake of defense counsel in this matter."
The possibility of construing K.S.A. 22-3608(c) as Ms. Hess did lies in the legislature's use of the term "judgment" rather than a more descriptive phrase such as "pronouncement of sentence in open court." The Court of Appeals cited State v. Bost, 21 Kan. App. 2d 560, Syl. 1, 903 P.2d 160 (1995), for the definition of judgment in a criminal case as sentencing and the rule that the time to file a notice of appeal runs from oral pronouncement of sentence instead of the filing of a journal entry. Thus, it appears that accurate construction of the statute requires knowledge of or reference to case law in addition to consultation of the statute.
In State v. Shortey, 256 Kan. 166, 884 P.2d 426 (1994), the court considered the request of a defendant in circumstances similar to those in which Hadley finds himself. The notice of appeal filed by Shortey's counsel was untimely. An affidavit of the appointed counsel responsible for the filing of the notice of appeal stated: "`I didn't realize that Notice of Appeal needed to be filed earlier. If that is indeed the case, it is wholly my fault, as Mr. Shortey has taken every step to insure that his appeal is prosecuted."' 256 Kan. at 168. The court summarized the applicable principles as follows:
" n general, Kansas appellate courts> do not have jurisdiction to entertain an appeal in a criminal case unless a notice of appeal is filed within the time established by the statute. However, in State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982), we recognized an exception to the general rule where in the interest of fundamental fairness `a defendant either was not informed of his or her rights to appeal or was not furnished an attorney to exercise those rights or was furnished an attorney for that purpose who failed to perfect and complete an appeal.' (Emphasis supplied.)" 256 Kan. at 167-68. The court concluded that in the circumstances described in the affidavit of Shortey's counsel, "the exception set forth in Ortiz should be applied." 256 Kan. at 168. Accordingly, the court entertained the appeal.
The City argues that the court wrongly recognized an exception to the strict rule governing appellate jurisdiction. The City would have this court overrule cases such as Shortey, 256 Kan. 166, State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), and Brizendine v. State, 210 Kan. 241, 242-44, 499 P.2d 525 (1972). We decline to do so.
The uncontroverted affidavit of Hadley's counsel, in which she assumes complete responsibility for the untimely filing of the notice of appeal, sufficiently establishes that it was the attorney who
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