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State v. Legero8/29/2003
strict magistrate judge. Considered in isolation from the remainder of the statute, this language may seem to encompass a probation revocation order. However, construing 22-3609a in its entirety reveals a legislative intent that only convictions or judgments of guilt can be appealed from a magistrate to a district judge. Although 22-3609a(1) refers to "any judgment," 22-3609a(3) directs the clerk of the district court to "deliver the complaint, warrant and any appearance bond to the district judge" and that the "case shall be tried de novo before the assigned district judge." K.S.A. 22-3609a(5) directs that "All appeals . . . from a district magistrate judge in misdemeanor cases shall be tried by the court unless a jury trial is requested. . . ." (Emphasis added.) This language supports an interpretation that the only type of "judgment" the legislature intended to be appealed from a magistrate is a conviction resulting in a trial de novo in district court. Had the legislature intended a broader interpretation of 22-3609a, it could have allowed for an appeal from "any final order" of a magistrate instead of from "any judgment" as the statute provides.
This interpretation of K.S.A. 2002 Supp. 22-3609a also makes that statute harmonious with the language of K.S.A. 22-3610. K.S.A. 22-3610, which applies to appeals to district court from both municipal courts and magistrates, provides in part:
"(a) When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint . . . . The case shall be tried de novo in the district court."
Again, the statutory language only seems to encompass the appeal of a conviction resulting in a trial de novo in district court.
Construing 22-3609a in its entirety together with 22-3610, and also considering the Supreme Court's rulings in Lashley and Remlinger, I agree with the district court's ruling that it lacked subject matter jurisdiction to hear an appeal from the magistrate's order revoking Legero's probation. A determination that Legero has no right to appeal a probation revocation to a district judge may seem unfair, especially since a probation revocation by a district judge can be appealed to the Court of Appeals. However, the right to appeal is entirely statutory. I also find it unfair that a defendant cannot appeal a probation revocation from municipal court, but no such right is provided by statute.
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