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City of Wichita v. Smith8/22/2003
Affirmed.
Scott A. Smith appeals the conviction of a violation of a noise ordinance of the City of Wichita (City).
On January 18, 2002, at about 11:30 p.m., Harlin and Janet Gray called the Wichita Police to complain about the excessive noise coming from a business establishment known as "Central Brews and Blues" (Club). The officer reported the music from the club could be heard while standing inside the front room of the Grays' residence. Gray's affidavit stated he had heard loud noises from rock bands from 9:30 p.m. to 2 a.m. continuously for years. The officer contacted Smith, who identified himself as the person in charge of the club.
Smith was issued a criminal complaint for " llow to be made or continued loud noise by use of a loudspeaker or sound amplifier which created a nuisance or interfered with the use or enjoyment of property of any person of reasonable sensibilities residing in or occupying the area" under Wichita city ordinance, 7.41.010(a) (2003).
The club provided a forum for musicians to play live music and had a cabaret license properly issued by the City. The license states:
"The person, firm or corporation named below is granted this business certificate pursuant to the provisions of the City Business License Ordinances to engage in, carry on or conduct the business, trade, calling, profession, exhibition or occupation described below. Issuance of the certificate is not an endorsement, nor certification of compliance with other ordinances or laws."
Smith pled no contest to the charge and was found guilty of violating the City's loud noise ordinance. He was sentenced to 90 days in jail and fined $250 and court costs. Smith appealed his municipal conviction to the district court.
Following a bench trial on September 4, 2002, the district court found Smith guilty of the loud noise ordinance violation and ordered him to pay a fine of $250 and municipal court costs of $108. The court also stated it "stays imposition of sentence for 30 days to allow an appeal, if [the defendant] desires. Upon passage of 30 days, if no appeal is filed [the defendant] will have 90 days to pay said fine and costs."
Smith filed a notice of appeal to the Court of Appeals on October 4, 2002.
The Court of Appeals ordered the parties to show cause why the appeal should not be dismissed for lack of jurisdiction. The record shows the sentence was pronounced on September 4, 2002, but the notice of appeal was not filed until October 4, 2002, beyond the 10-day limitation of K.S.A. 22-3608(c).
Smith responded by claiming that the trial court stayed the imposition of the sentence for 30 days to allow an appeal; therefore, his appeal filed within the 30-day period was timely. On the other hand, the City claims the appeal was untimely because even though the parties agreed to allow 30 days to file an appeal, that agreement did not grant jurisdiction to the Court of Appeals. The appeal was retained with the order that parties were to brief the jurisdiction issue.
Whether jurisdiction exists is a question of law over which the appellate court's scope of review is unlimited. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000). The right to appeal is entirely a statutory right; the Court of Appeals has only such appellate jurisdiction as is conferred by statute pursuant to the Kansas Constitution, and when the record discloses a lack of jurisdiction, it is the duty of this court to dismiss the appeal. See State v. Ji, 255 Kan. 101, 102-03, 872 P.2d 748 (1994).
Smith argues this court has jurisdiction to hear his appeal because the trial c
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