State v. Berreth, 273 P.3d 752

Berreth was convicted in 1994 of one count aggravated kidnapping and three counts aggravated criminal sodomy of a child under 14, and sentenced to 254 months with 24 months’ postrelease supervision; direct appeals affirmed.
In 2004–2005 Berreth moved to correct an illegal sentence under 22-3504 and expanded via 60-1507 motions alleging multiplicity between kidnapping and sodomy convictions.
The district court vacated the aggravated kidnapping conviction, substituting a kidnapping conviction and resentencing to simple kidnapping; the State appealed as a question reserved under 22-3602(b)(3).
Court of Appeals reversed and reinstated Berreth’s original sentence; after district court complied, a different Court of Appeals panel affirmed.
The Supreme Court granted review to determine (1) whether the State’s appeal was properly based on a question reserved and (2) the effect of a question-reserved ruling on Berreth.”
The Court ultimately held that the Court of Appeals failed to treat the State’s appeal as a question reserved and reversed and remanded for reinstatement of the reduced sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State’s appeal basis was properly a question reserved	State elected 22-3602(b)(3) as basis	Berreth contends State cannot shift basis; improper	No; State’s basis could not be changed without notice/amendment
Whether the Court of Appeals may sua sponte change the State’s election	State argued panel could adopt 60-1507(d)	State did not properly amend or plead new basis	No; appellate court cannot sua sponte alter the State’s elected basis
Whether a State question reserved affects the defendant in the underlying case	State sought statewide clarification	Decision would affect future cases only	An answer to a question reserved has no effect on Berreth’s case

State v. Robbins, 272 Kan. 158, 32 P.3d 171 (2001) (Kan. 2001) (multiplicity framework for Robbins guidance (overruled by Schoonover))
State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006) (Kan. 2006) (rejected Robbins’ multiplicity approach; clarified when multiplicity claims arise)
State v. Edwards, 281 Kan. 1334, 135 P.3d 1251 (2006) (Kan. 2006) (multiplicity not a challenge to jurisdiction under 22-3504(1))
State v. Verge, 272 Kan. 501, 34 P.3d 449 (2001) (Kan. 2001) (grounds for jurisdiction must be stated in notice of appeal)
State v. Kerby, 259 Kan. 104, 910 P.2d 836 (1996) (Kan. 1996) (dismissed for failure to amend notice to reflect proper basis)
State v. Woodling, 264 Kan. 684, 957 P.2d 398 (1998) (Kan. 1998) (grounds for jurisdiction not identified in notice may not be considered)
State v. Martin, 232 Kan. 778, 658 P.2d 1024 (1983) (Kan. 1983) (early practice allowing sua sponte question-reserved treatment)
State v. Harpool, 246 Kan. 226, 788 P.2d 281 (1990) (Kan. 1990) (lenient stance on jurisdiction in certain interlocutory appeals)