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State v. Seems2/20/2004
of Appeals. The Court of Appeals affirmed the district court, reasoning in part:
"To establish the basis for charging and trying a defendant for a felony, a determination of probable cause to believe that a felony has been committed must be made pursuant to K.S.A. 2002 Supp. 22-2902(3). This probable cause determination is made by a judge after a preliminary hearing. Without a showing that the necessary prior convictions have occurred, the trial court would lack the jurisdiction to try the defendant for a felony.
"In order to prosecute a defendant under K.S.A. 8-1567(f), a felony, there must first be a preliminary hearing finding of probable cause to believe that the necessary prior convictions have occurred." State v. Seems, 31 Kan. App. 2d 794, 797, 74 P.3d 55 (2003).
We agree with the Court of Appeals. The defendant was properly charged with a felony offense of DUI in violation of K.S.A. 8-1567(f). The court had jurisdiction to conduct a preliminary hearing, as K.S.A. 2003 Supp. 22-2902(1) grants the defendant charged with a felony "a right to a preliminary examination before a magistrate, unless such warrant has been issued as a result of an indictment by a grand jury." K.S.A. 2003 Supp. 22-2902(3) provides that "a defendant shall be bound over if the evidence shows that a felony has been committed and there is probable cause to believe that the felony has been committed by the defendant." State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 (2000). Where the evidence fails to establish that a felony has been committed by the defendant, the case must be dismissed.
In this case, the State presented no evidence of the defendant's two prior DUI convictions. Felony DUI under K.S.A. 8-1567(f) requires two prior DUI convictions. Failure to present some evidence of two prior convictions at the preliminary hearing results in the failure to establish that a felony has been committed and that there was probable cause to believe that the felony has been committed by the defendant. Under these circumstances, the magistrate "shall discharge the defendant." K.S.A. 2003 Supp. 22-2902(3).
We conclude that the Court of Appeals properly affirmed the dismissal of the K.S.A. 8-1567(f) nonperson felony DUI charge where the State failed to establish at the preliminary hearing that a felony had been committed and that probable cause existed to believe a felony was committed by the defendant by failing to present evidence of the defendant's two prior DUI convictions.
Affirmed.
BEIER, J., not participating.
BRAZIL, S.J., assigned.
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