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CITY OF DODGE CITY v. RABE6/15/1990
d and that the burden is on the city to see that timely prosecution is had. 243 Kan. at 546.
Arrayed against the municipal court appeal cases, which make no specific holding about the statutory language that the speedy trial time limit commences as of arraignment, is a line of cases clearly holding that the statutory speedy trial clock commences to tick when arraignment is held. In State v. Rosine, 233 Kan. 663 at 669, the Supreme Court so held and stated:
"It is clear that Scott's and Rosine's court appearances on November 25, 1981, and November 5, 1981, respectively, wholly lacked the essential elements of an arraignment. No complaint was read to either defendant as no complaint existed. For like reason, no copy of the complaint could have been handed to either defendant. Further, there was no complaint on which to base a plea. The existence of a complaint, information or indictment filed against a defendant is a fundamental prerequisite to an arraignment."
See State v. Huber, 10 Kan. App. 2d 560, 561-62, 704 P.2d 1004 (1985); State v. Taylor, 3 Kan. App. 2d 316, 320.
In Rosine, it was held that the failure to arraign the accused resulted in the statutory speedy trial period not commencing. Apparently, in the other line of cases, the Supreme Court relied on the municipal court proceeding as an acceptable substitute for arraignment. We thus have two rules — one for misdemeanors filed directly in the district court and one for appeals from municipal courts>. Perhaps this could have been avoided by following the same rule as demonstrated in State v. Rosine (time starts with arraignment) and by requiring a violation of the constitutional right to a speedy trial when an appeal from a municipal court is not docketed, a complaint is not filed, or an arraignment is not held.
We are duty bound to follow the Supreme Court, and, based on the fact that City of Elkhart v. Bollacker was filed in 1988 and is the third case on the subject, we are unable to say the Supreme Court would change the result if faced with that issue today.
Here, Rabe did all he was required to do by statute to perfect his appeal. He is not required, as the trial court held, to have the sheriff serve the notice of appeal on the city attorney or send the notice of appeal by certified mail, return receipt requested. Service is not defined in the statute, nor is it defined in the code of criminal procedure. In a civil case, service is provided for by statute:
"Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or a party or by mailing it to the attorney or a party at the last known address or, if no address is known, by leaving it with the clerk of the court. . . . Service by mail is complete upon mailing." K.S.A. 1989 Supp. 60-205(b).
Rabe contends notice was mailed, and, since he filed a certificate of service with the district court, under K.S.A. 22-3606 and K.S.A. 1989 Supp. 60-205, service was complete. See Thompson v. Groendyke Transport, Inc., 182 Kan. 616, 620-21, 322 P.2d 341 (1958) (when notice of appeal is filed in proper court with proof of service made by affidavit, appeal should be deemed perfected). Whether the city attorney and the municipal court
actually received the notice is immaterial. Rabe has met the requirements of K.S.A. 22-3609.
The next question is whether the judge whose judgment is at issue, or the clerk of that court, had certified the complaint and warrant to the district court as required under K.S.A. 22-3609(3). No such certification appears in the record. The statute, however, specifically states that failure to meet th
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