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City of Salina3/12/2004
Reversed and remanded.
The City of Salina (City) appeals the district court's dismissal of criminal charges against John Leroy Amador based upon a double jeopardy violation. We reverse, concluding that Amador's double jeopardy rights were not violated.
Amador was convicted of battery and criminal damage to property in Salina Municipal Court on November 8, 2001. He appealed his conviction to the district court and a trial de novo was scheduled for January 28, 2002. On the day of the trial, the City was not ready to proceed because three witnesses it believed were necessary to prove the charges were not present. The district court denied the City's request for a continuance and granted Amador's motion to dismiss the charges without prejudice for failure to prosecute the case.
The City refiled the case in Salina Municipal Court on April 5, 2002. Amador was again convicted of battery and criminal damage to property by the municipal court. Amador appealed this conviction to the district court and filed a motion to dismiss, claiming that jeopardy had attached in the first proceeding and that he could not be prosecuted again on the same charges.
The district court agreed and dismissed the case. The district court reasoned the City should have appealed the original dismissal without prejudice to the Court of Appeals. Since the City failed to do so, the district court concluded that Amador's second prosecution in municipal court violated his double jeopardy rights.
The City timely appealed.
"Whether a retrial is barred due to double jeopardy is a question of law subject to de novo review. [Citation omitted.]" In re Habeas Corpus Petition of Minnis, 29 Kan. App. 2d 644, 646, 29 P.3d 462 (2001), rev. denied 273 Kan. 1035 (2002).
Both the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights prohibit a criminal defendant from being placed in jeopardy twice for the same offense.
"The Double Jeopardy Clause of the United States Constitution provides three different types of protection for a person charged with a crime. Double jeopardy protection shields an accused from: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense." State v. Mertz, 258 Kan. 745, Syl. 3, 907 P.2d 847 (1995).
Kansas has codified the protection against double jeopardy. K.S.A. 21-3108(1)(a) states:
"(1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal or in a deter-mination that the evidence was insufficient to warrant a conviction . . . ."
Amador argues, and the district court agreed, that procedurally the City was required to appeal the district court's original dismissal of the case to the Court of Appeals. Amador contends the process is governed by K.S.A. 2003 Supp. 22-3602(b)(1), which states:
"(b) Appeals to the court of appeals may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others:
(1) From an order dismissing a complaint, information or indictment . . . ."
Amador further contends that since the City failed to follow proper appellate procedure, the refiling of the charges against him in municipal court violated the prohibition against double jeopardy.
However, while K.S.A. 2003 Supp. 22-3602(b)(1) provides that a district court's decision to dismi
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