City of Dodge City v. Wetzel5/28/1999
SYLLABUS BY THE COURT
Appeal from Ford district court; VAN HAMPTON, Judge.
Reversed and remanded.
The ultimate issue in this appeal is whether Dodge City loses subject matter jurisdiction over Russell Wetzel when a second driving under the influence (DUI) charge and conviction is appealed to the district court, and before trial Wetzel commits and obtains a diversion from a new DUI offense.
The trial court held that because of the timing of the convictions and our holding in City of Junction City v. Cadoret, 263 Kan. 164, 946 P.2d 1356 (1997), that municipalities have no jurisdiction over felony charges, the second DUI offense became a felony offense requiring the conviction to be vacated and the charges dismissed.
We disagree with the trial court.
We first set forth the tangled facts by a chronology of Wetzel's various DUI charges and the time and nature of the actions thereon:
"February 24, 1991 Wetzel charged in Manhattan with DUI; "March 20, 1991 DUI diversion agreement in Manhattan on "February 24, 1991, charge; "September 24, 1995 Wetzel charged in the case before us on appeal with DUI in Dodge City; complaint does not specify whether it is a first or second offense; "October 14, 1996 Wetzel charged in Pawnee County with DUI; "November 13, 1996 Wetzel convicted of DUI in Dodge City "Municipal Court, sentenced as if it were a "second offense, appeal is perfected to Ford "County District Court; "January 9, 1997 DUI diversion agreement in Pawnee County "on October 14, 1996, charge; "November 21, 1997 Wetzel convicted of DUI by jury in Ford County District Court, Wetzel sentenced as a first DUI offender to 30 days' imprisonment and a fine of $200; after 48 consecutive hours of imprisonment, "Wetzel is placed on probation for two years; "December 1, 1997 Dodge City moves to correct the illegal sentence, "suggesting K.S.A. 8-1008(c) requires a presentence alcohol and drug evaluation, that Wetzel had been sentenced in Dodge City Municipal Court as a second-time DUI offender but on appeal as a first-time offender b ased upon Dodge City's failure to give notice of the severity level charged, State "v. "Masterson, 261 Kan. 158, 929 P.2d 127 (1996), and "the court should have the benefit of more recent information concerning Wetzel's subsequent "DUI offenses; "January 13, 1998 Trial court grants Dodge City's motion to vacate "Wetzel's sentence of November 21, 1997, finding a "presentence drug and alcohol evaluation pursuant "to K.S.A. 8-1008(c) should have been ordered, that State v. Masterson is not applicable to DUI prosecutions in Municipal Court; "February 9, 1998 Wetzel moves to set aside his judgment/conviction, contending he is now a "third-time offender, that Dodge City does not have subject matter jurisdiction pursuant to the "City of Junction City v. Cadoret, 263 Kan. 164, which held that municipalities do not have jurisdiction over crimes designated as felonies by a State statute, that the existence of jurisdiction may be considered and raised at any time and may not be waived, and that a judgment rendered without jurisdiction is void; "April 9, 1998 Trial court finds Wetzel had entered into DUI diversion agreements dated March 20, 1991, and "January 9, 1997, making the November 21, 1997, "conviction a third DUI conviction over which "the Municipal Court of Dodge City did not have subject matter jurisdiction pursuant to City of Junction City v. Cadoret. The court declared the November 21, 1997, DUI conviction void and dismissed the complaint; "April 17, 1998 Dodge City appeals the trial court's April 9, 1998, "decision setting aside Wetzel's DUI conviction "and dismissing the complaint pursuant to "K.S.A. 22-3602(b)(1)
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