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State v. Legero6/25/2004
The narrow single issue in this case is whether a defendant in a criminal case whose probation has been revoked by a district magistrate judge may appeal the revocation to the district court under authority of K.S.A. 2003 Supp. 22-3609a.
FACTS
The relevant facts and procedural history are not in dispute and may be summarized as follows. 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. 2003 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 appealed the district court's dismissal to the Court of Appeals. In a two to one decision, the Court of Appeals reversed the district court, concluding K.S.A. 2003 Supp. 22-3609a confers appellate jurisdiction in the district court. State v. Legero, 31 Kan. App. 2d 897, 75 P.3d 273 (2003). We granted the State's petition for review.
ISSUE PRESENTED
K.S.A. 2003 Supp. 22-3609a(1) provides in part: "A defendant shall have the right to appeal from any judgment of a district magistrate judge." (Emphasis added.)
Legero contends that a revocation of probation order issued by a district magistrate is included in the term "any judgment." The State contends the term "any judgment" as used in the statute is defined as a pronouncement of guilt and the determination of punishment. The parties agree that the resolution of this appeal depends upon the construction of the term "any judgment" as used in K.S.A. 2003 Supp. 22-3609a(1).
SCOPE OF REVIEW
Interpretation of a statute is a question of law permitting unlimited review. State v. Engles, 270 Kan. 530, 532, 17 P.3d 355 (2001).
ANALYSIS
The right to appeal is entirely statutory and is not contained in either 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 Wasson v. United Dominion Industries, 266 Kan. 1012, 1018-19, 974 P.2d 578 (1999). No exception to the rule is claimed herein.
The precise question of whether K.S.A. 2003 Supp. 22-3609a affords a defendant an appeal from a district magistrate's revocation of his or her probation is a question of first impression. However, there are three cases involving somewhat different factual situations which warrant discussion herein.
In State v. Lashley, 233 Kan. 620, 664 P.2d 1358 (1983), the defendant sought to appeal from a magistrate's order binding him over for arraignment. The district court ruled that the order was not appealable under 22-3609a. We affirmed the district court, stating:
"The order binding the defendant over for arraignment was not a 'judgment' from which a defendant has a right to an appeal. Judgments that can be appealed under K.S.A. 1982 Supp. 22-3609a are convictions in traffic or misdemeanor cases and those convictions rendered pursu
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