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City of Salina3/12/2004
The court reasoned that it became the district court's obligation to hear the case de novo, "'as if it had not been heard before and as if no decision had been previously rendered.' [Citation omitted.]" 29 Kan. App. 2d at 359-60; see also State v. Burkett, 231 Kan. 686, Syl. 1, 648 P.2d 716 (1982) (an appeal by a defendant in a criminal case from a district magistrate judge to the district judge automatically vacates the plea, judgment of conviction, and disposition before the district magistrate judge).
Rose and Burkett establish that an appeal from a magistrate judge for a trial de novo in district court vacates the judgment of the magistrate judge. Because of the similarities of procedure involved in an appeal from municipal court to district court, we conclude that Amador's first conviction by the municipal court was vacated when he appealed to district court for a trial de novo.
Furthermore, the district court's original dismissal of the charges against Amador was granted without prejudice. In a case involving the voluntary dismissal of charges by the prosecutor, the court held that the dismissal of a case without prejudice does not "'prejudice a fresh prosecution on a new information charging the identical offense set forth in the prior information.'" State v. Heigele, 14 Kan. App. 2d 286, 288, 789 P.2d 218 (1990) (quoting State v. Rowland, 172 Kan. 224, 227-28, 239 P.2d 949 ). "As generally understood, the phrase 'without prejudice' means '"there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another application as though no suit had ever been brought.'" [Citation omitted.]" 14 Kan. App. 2d at 288.
Here, Amador appealed his municipal court conviction for a trial de novo in district court. Consequently, the municipal court conviction was vacated. The district court dismissed the case without prejudice and without hearing any evidence on the merits of the charges. The City was not required to appeal the dismissal to the Court of Appeals. Furthermore, jeopardy never attached at the district court level because no evidence was heard or witness sworn. Therefore, after the first case was dismissed without prejudice, the City was not barred from bringing a subsequent case against Amador for the same offenses in municipal court. The subsequent prosecution was not a violation of Amador's double jeopardy rights.
The district court erred in dismissing the City's complaint as a violation of double jeopardy. This case is remanded to the district court with directions to set aside the order dismissing the case based upon the claimed double jeopardy violation.
Reversed and remanded.
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