378 P.3d 1107
Kan. Ct. App.2016Background
- Timothy Webb was charged with first-degree murder and criminal possession of a firearm; jury convicted him of the firearm count but deadlocked on murder.
- The district court, with no objection from Webb, declared a mistrial on the murder count.
- Webb filed a pretrial motion to dismiss the murder charge on double jeopardy grounds; the district court denied the motion.
- Webb sought immediate appellate review of that denial and filed a timely notice of appeal after the district court refused reconsideration.
- The Kansas Court of Appeals raised the issue of appellate jurisdiction sua sponte because Kansas law limits criminal appeals to final judgments (conviction plus sentence).
- The court retained briefing, considered federal precedent (Abney), state precedent, and statutory text before dismissing the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of pretrial double jeopardy motion is immediately appealable | Webb: Abney requires immediate appellate review of pretrial double jeopardy denials to prevent retrial burden | State/Kansas: Kansas appellate jurisdiction is statutory and limited to final judgments (conviction + sentence) | Denied jurisdiction — appeal dismissed because Kansas law permits appeals only from final judgments |
| Whether federal Abney collateral-order rationale controls Kansas appeals | Webb: Abney's reasoning should apply and trump state rule | State: Abney does not override plain statutory limits on appeals in Kansas | Abney not applied; state statute and precedent control |
| Whether alternative remedies allow pretrial review (e.g., habeas or special writ) | Webb argued immediate appeal appropriate here | Court noted other jurisdictions or Kansas practice have used habeas or special writs to obtain review | The court did not grant relief via appeal; suggested statutory or other procedural avenues exist but declined jurisdiction |
| Whether Kansas precedent requires change in light of federal cases | Webb urged change to align with federal protection of double jeopardy | Kansas courts emphasize statutory nature of appeal rights and precedent (Fisher, Wiechman) | Court declined to alter state rule; followed precedent and statute |
Key Cases Cited
- Abney v. United States, 431 U.S. 651 (1977) (pretrial double jeopardy dismissal is immediately appealable under federal collateral-order principles)
- State v. Fisher, 2 Kan. App. 2d 353 (1978) (Kansas appellate statute limits criminal appeals to judgments; Abney does not alter that rule)
- Wiechman v. Huddleston, 304 Kan. 80 (2016) (Kansas Supreme Court declined a federal-based appellate exception and emphasized adherence to statutory text)
- State v. Freeman, 236 Kan. 274 (1984) (conviction not appealable until defendant is sentenced or sentence suspended)
- State v. Cameron, 32 Kan. App. 2d 187 (2003) (reiterating that criminal judgment requires conviction and sentence for appealability)
- In re Berkowitz, 3 Kan. App. 2d 726 (1979) (discussing habeas as an alternative route to raise pretrial double jeopardy issues in Kansas)