 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Dickens11/19/2004
The defendant, Cassey D. Dickens, appeals after convictions for misdemeanor driving under the influence of alcohol (DUI) and refusal to submit to a preliminary screening test of breath for alcohol concentration (PBT). The controlling issue on appeal is whether Dickens was brought to trial within 180 days after arraignment as provided in K.S.A. 22-3402(2). Dickens contends computation of speedy trial rights should include that period of time similar charges arising out of the same underlying incident were pending in municipal court prior to dismissal and before the county attorney filed charges of felony DUI and failure to submit to a PBT under state law.
We affirm.
The question of whether a defendant's statutory right to a speedy trial has been violated is a question of law. State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003). Likewise, interpretation of a statute is a question of law. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
Dickens argues the period of time charges were pending in municipal court should be included in the calculation of the 180 days under K.S.A. 22- 3402(2) because the State never made a showing of necessity for dismissal. Dickens relies upon State v. Jamison, 248 Kan. 302, 304, 806 P.2d 972 (1991), and State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979), to support his argument. In Jamison and Cuezze, the Kansas Supreme Court held the State could not avoid the statutory speedy trial provision by dismissing and then refiling the same charges against the same defendant without a showing of necessity for the dismissal. Dickens' reliance is misplaced. In both reported cases the State's prosecutions were in the appropriate district court. Neither Jamison or Cuezze suggests speedy trial calculations in a State prosecution should include that period of time similar charges were pending in a municipal court.
Dickens also states there are cases that have held "when a criminal case is appealed from municipal court to district court and the State fails to bring the case to trial within 180 days, then K.S .A. 22-3402(2) applies and runs from the time the defendant is arraigned in the municipal court." He cites City of Elkhart v. Bollacker, 243 Kan. 543, 757 P.2d 311 (1988), and City of Dodge City v. Rabe, 14 Kan.App.2d 468, 794 P.2d 301 (1990).
In Bollacker, the defendant appealed his municipal court conviction to district court and requested a trial. The trial was scheduled more than 180 days after the appeal was docketed in district court. The court noted that in a previous case it had held:
" '[I]n district court cases involving appeals from municipal courts, the time limitations provided in K.S.A.1977 Supp. 22-3402 shall commence to run from the date the appeal is docketed in district court or at the expiration of the time the appeal should have been docketed under the time schedule set forth in K.S.A.1977 Supp. 22-3609(3), whichever occurs first. This holding places a duty on the city to see that the appeal is docketed in a timely fashion. The time limitations for trial in district court should commence to run when there is, or should be, a complaint against the defendant pending in district court.' [City of Overland Park v. Fricke, 226 Kan. 496, 502, 601 P.2d 1130 (1979) ]." 243 Kan. at 545.
*2 The Bollacker court concluded the city did not meet its burden of bringing the defendant to trial within 180 days as required by K.S.A. 22- 3402(2) and affirmed the district court's dismissal of the case. 243 Kan. at 546.
In Rabe, the defendant was convicted in municipal court and filed a notice of appeal in district court. Because the city did not receive notice of the appeal, no trial was set until 14 months later when the defendant filed a motion to dismiss, claiming a statuto
Page 1 2 Kansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|