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CITY OF DODGE CITY v. RABE6/15/1990
This is a direct appeal by Kenny Rabe from his conviction for driving under the influence of alcohol (DUI). Rabe was convicted in the Municipal Court of Dodge City, Kansas, and appealed that conviction to the District Court of Ford County, Kansas. This appeal arises as a result of the trial court's refusal to dismiss the case because Rabe was not brought to trial within the 180-day limit required by K.S.A. 22-3402(2).
Rabe filed a timely notice of appeal in the district court on February 25, 1988. On that same day, he executed an appeal bond that was approved by the municipal court judge and filed in the district court. A certificate of service was filed showing service by regular mail on the city attorney who prosecuted the case, as well as the municipal court judge who tried the case and approved the appeal bond and the clerk of the municipal court. The appeal was docketed and a case number was assigned. The appeal languished on the docket for some 14 months, at which time counsel for Rabe filed a motion to dismiss the case because he had not been brought to trial within the 180 days mandated by K.S.A. 22-3402(2). K.S.A. 22-3402(2) provides:
"If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3)." Rabe was brought to trial some 17 months after the notice of appeal was filed.
The city attorney and municipal court clerk denied they received copies of the notice of appeal. The trial court appears to have held counsel for Rabe had mailed the notice of appeal, but it was not received. The trial court then reasoned:
"5. That since the statute K.S.A. 22-3609(3) states that the defendant shall cause notice of appeal to be served upon the City Attorney prosecuting the case and the City attorney did not receive the mailed notice pursuant to the Certificate of Service filed by defense attorney Leslie A. Phelps, that the appeal is not properly docketed, as defense attorney should have used certified mail service or personal service of process by the Sheriff."
Rabe relies solely on the right to a speedy trial as provided by K.S.A. 22-3402(2). He does not raise as an issue a claim that
he was denied his constitutional right to a speedy trial, nor did he do so in the trial court. For those interested in the distinction between the statutory and constitutional right to a speedy trial, see Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972); State v. Rosine, 233 Kan. 663, 668-70, 664 P.2d 852 (1983); State v. Taylor, 3 Kan. App. 2d 316, 321, 594 P.2d 262 (1979).
Only one case is cited by the parties and both sides rely on that case to support their respective positions. Rabe interprets City of Overland Park v. Fricke, 226 Kan. 496, 601 P.2d 1130 (1979), to hold that when an appeal from a municipal court conviction is properly filed and a notice of appeal mailed to the city attorney, the accused has done what he or she is required to do by statute, and the statutory speedy trial period commences to run. The City, in its two-page brief, argues that, while Fricke places the obligation upon the City to docket an appeal in a timely fashion, in this case, since the City did not receive notice of the appeal being filed, the time limitations of the speedy trial statute did not commence to run until there was actual notice to the city at
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