City of Wichita v. Smith8/22/2003
ourt extended the time to file a notice of appeal pursuant to Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988). As the City points out, Schroeder dealt with an extension of time for filing an appeal in civil cases within the 30-day period fixed by K.S.A. 60-2103(a). The Schroeder court applied the doctrine of unique circumstances to allow an appeal which was otherwise untimely filed if the appellant reasonably and in good faith relied upon judicial action seemingly extending the appeal period and filed a notice of appeal within the period apparently judicially extended. 242 Kan. 710, Syl.
In State v. Moses, 227 Kan. 400, 607 P.2d 477 (1980), the Kansas Supreme Court held the trial court had no jurisdiction to grant an extension of time to file a notice of appeal under K.S.A. 60-2103(a) in a criminal proceeding.
The Moses court noted:
"The court's order does not derive its effectiveness from the journal entry, or from any act of the clerk, it is effective when announced. The defendant is personally present, and thus knows that at that moment he or she has been sentenced, fined, or placed on probation, or that imposition of sentence has been suspended." (Emphasis added.) 227 Kan. at 402-03.
The Moses court appears to be saying that suspending imposition of the sentence does not alter the effective date of sentencing for the purpose of starting the clock running for the purpose of appeal.
Also, contrary to Smith's argument, the trial court apparently did not grant an extension to file a notice of appeal for 30 days. The court was probably aware that it did not have that authority. Instead, it set deadlines for Smith to pay fines if an appeal was not filed. The sentence was pronounced from the bench on September 4, 2002, and Smith had 10 days from then to file his notice of appeal. Smith does not argue that he or his counsel was unaware of the right to appeal under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).
This appeal could be dismissed for lack of jurisdiction. However, for reasons of judicial economy, we will address the issues raised.
Wichita city ordinance 7.41.010 (2003), "Loud and unnecessary noise prohibited," states in pertinent part:
"(a) It is unlawful for any person to make, continue, or allow to be made or continued, any excessive, unnecessary, unusual or loud noise which creates a nuisance or injures or endangers the comfort, repose, health or safety of others, or which interferes with the use or enjoyment of property of any person of reasonable sensibilities residing in or occupying the area unless the making and continuing of such noise is necessary for the protection and preservation of property or the health and safety of some individual.
"(b) The following acts, which enumeration shall not be deemed to be exclusive, are hereby declared to be noise nuisances in violation of this section and are unlawful:
(1) The playing or permitting or causing the playing of any radio, radio receiving set, television, phonograph, 'boom box,' loudspeaker, drum, juke box, nickelodeon, musical instrument, sound amplifier or similar device which produces, reproduces, or amplifies sound when done in such a manner or with such volume, intensity, or with continued duration so as to annoy, to distress, or to disturb the quiet, comfort, or repose of any person of reasonable sensibilities within the vicinity or hearing thereof. This subsection shall not apply to persons who have written authorization for an event which includes use of such a device, or to the police or public authorities who are using such a device in the performance of their duties."
(Emphasis added
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