State v. FinicalState v. Finical
- Reporters:
- , ,
- Before:
- Davis
The opinion of the court was delivered by
Davis, J.:
The State appeals the dismissal of nine indictments in eight separate actions. The eight separate actions were consolidated below for the purposes of the defendants’ motion to
On May 12, 1992, pursuant to
The defendants do not challenge the validity or sufficiency of the signatures on the petition for a grand jury. On May 18, 1992, District Magistrate Judge Philip M. Fromme issued an order finding that the petition was in proper form and bore the signatures of the required number of electors. He then ordered that “a Grand Jury be summoned in Coffey County, Kansas, to investigate alleged violations of law pursuant with the provisions of
On August 19, 1992, that grand jury handed down indictments against George Finical, Harry L. Hunsley, Melvin Bunge, Vernon Sergeant, David Beard, Johnnie Sleezer, and Melvin Cummings. Those cases were assigned to District Judge John Sanders. Defendant David Beard entered a plea of no contest, which was accepted by the court. This indictment is not at issue in this appeal.
All other defendants filed a motion to dismiss before Judge Sanders, claiming that the “Grand Jury was not properly impaneled in compliance with the law.” Upon hearing, Judge Sanders concluded that
On December 7, 1992, Judge Stevenson dismissed the indictments. He stated, “[I]t does not appear that any change was made concerning the Grand Jury with the exception of extending the life thereof.” Judge Stevenson noted that
We agree with Judge Stevenson’s decision. We hold that the State’s failure to appeal from Judge Sanders’ dismissal of the first indictments bars its appeal of Judge Stevenson’s order dismissing the second group of indictments.
There is no dispute in this case that Judge Sanders dismissed the indictments in the first series of cases because he found a flaw in the manner in which the grand jury was summoned. The State contends, however, that Judge Sanders’ order had no effect on the cases now before the court and that Judge Sanders’ order did not require or support Judge Stevenson’s dismissal of the indictments in this case. Defendants argue that Judge Sanders determined the validity of the indictments issued by the improperly convened grand jury and that the State could not revisit that issue before Judge Stevenson.
“The right to appeal is entirely statutory .... Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner
We have held that “[t]he dismissal of a complaint in a criminal prosecution is a final order arid precludes further prosecution of the defendant unless the State should overcome the reasons for the prior dismissal at a subsequent preliminary examination on a refiled complaint.” State v. Zimmerman & Schmidt, 233 Kan. 151, 155, 660 P.2d 960 (1983). The State did not appeal Judge Sanders’ decision, and the State took no action to “overcome the reasons for the prior dismissal.” Judge Sanders dismissed the indictments because he found the grand jury was not properly convened. The State simply returned to the same grand jury and sought additional indictments against the same and additional defendants.
When the State chose not to appeal Judge Sanders’ ruling that the grand jury was not properly convened and lacked authority to issue valid and enforceable indictments, Judge Sanders’ ruling became the law of the case. We repeatedly have held that when an appealable order is not appealed it becomes the law of the case. See, e.g., Vaughan v. Hornaman, 195 Kan. 291, 403 P.2d 948 (1965) Grohusky v. Atlas Assurance Co., 194 Kan. 460, 399 P.2d 797 (1965); Hodge v. Freeman, 187 Kan. 650, 359 P.2d 845 (1961); Schauf v. Peter Kiewit & Sons Co., 187 Kan. 180, 354 P.2d 687 (1960); Neuvert v. Woodman, 185 Kan. 373, 343 P.2d 206 (1959).
As stated in
Neuvert,
our decision “does not require that we here plow any virgin field or announce new and startling principles of law.” 185 Kan. at 380. The State did not timely appeal Judge Sanders’ order. The time to appeal that order has expired. Judge Sanders’ ruling determined that the grand jury was not properly convened and lacked authority to issue indictments. It therefore became the law of the case not only with respect to indictments issued against Finical, Hunsley, Bunge, Cummings,
The State’s failure to appeal the dismissal of indictments based on the trial court’s determination that the grand jury was not properly convened and lacked the authority to issue indictments forecloses a later appeal involving the dismissal of new indictments issuing from that same grand jury. The State is bound by the earlier ruling.
Appeal denied.