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State v. Legero8/29/2003
Reversed.
Antonio L. Legero appeals the district court's ruling that it lacked jurisdiction to hear Legero's appeal of a district magistrate judge's order revoking his probation. The issue is whether a magistrate's order revoking a defendant's misdemeanor probation is a judgment pursuant to K.S.A. 2002 Supp. 22-3609a, which can be appealed to the district court. This is an issue of first impression.
Legero pled guilty in separate cases to disorderly conduct and attempted criminal damage to property, both misdemeanors. On September 20, 2001, a district magistrate judge sentenced Legero to 30 days in jail for each count, to run concurrently. Legero was granted 12 months' probation.
On May 9, 2002, Legero was before the magistrate for a probation revocation hearing. Legero stipulated to the allegation that he had been arrested and charged with driving under the influence of alcohol. The magistrate revoked Legero's probation and ordered Legero to serve his jail sentence.
Legero filed a notice of appeal to the district court pursuant to K.S.A. 2002 Supp. 22-3609a. The notice appealed the magistrate's revocation of Legero's probation and imposition of sentence. The district court dismissed the appeal, finding that it lacked subject matter jurisdiction to review a magistrate's order revoking probation. Legero appeals from the order of the district court.
We must decide whether the district court has jurisdiction under 22-3609a to entertain an appeal from the magistrate's ruling revoking Legero's probation. " hether jurisdiction exists is a question of law over which our court's scope of review is unlimited." Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000). Furthermore, interpretation of a statute is a question of law permitting unlimited review. State v. Engles, 270 Kan. 530, 532, 17 P.3d 355 (2001).
Initially, the State argues the issue is moot as Legero has already served his sentence. Appellate courts do not decide moot questions or render advisory opinions. In re T.D., 27 Kan. App. 2d 331, 333, 3 P.3d 590, rev. denied 269 Kan. 933 (2000). However, an exception exists if the issue raised is capable of repetition and is of public importance. 27 Kan. App. 2d at 333. The issue raised in this appeal meets this exception and, accordingly, we will address the merits of the case.
The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. Wasson v. United Dominion Industries, 266 Kan. 1012, 1018-19, 974 P.2d 578 (1999).
Both parties agree that Legero's right of appeal is controlled by the provisions of K.S.A. 2002 Supp. 22-3609a, which states:
"(1) A defendant shall have the right to appeal from any judgment of a district magistrate judge. The chief judge shall be responsible for assigning a district judge for any such appeal. The appeal shall stay all further proceedings upon the judgment appealed from.
"(2) An appeal to a district judge shall be taken by filing a notice of appeal with the clerk of the court. No appeal shall be taken more than 10 days after the date of the judgment appealed from.
"(3) The clerk of the district court shall deliver the complaint, warrant and any appearance bond to the district judge to whom such appeal is assigned. The case shall be tried de novo before the assigned district judge.
"(4) No advance payment of a docket fee shall be required when the appeal is taken.
"(5) All appeals
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