State v. GrimesState v. Grimes
- Reporters:
- , ,
- Before:
- Miller
Lead Opinion
The opinion of the court was delivered by
Miller, J.:The State appeals from an order of the Rice District Court discharging the defendant in this criminal case, James T. Grimes, due to the State’s failure to comply with the Kansas speedy trial statute,
Dr. James T. Grimes discovered his wife, Gloria, sitting with Kevin McClure in McClure’s car in Lyons on November 17,1978. Grimes suspected that his wife was romantically involved with McClure. Grimes was armed; he ran to the window of McClure’s car and confronted him; a shot was fired; McClure was slightly injured. Grimes was then charged with aggravated battery of McClure and with aggravated assault of Gloria. On July 25, 1979, a jury found Grimes guilty of aggravated battery but acquitted him of aggravated assault. Dеfendant filed a motion for a new trial, alleging among other things that the trial court erred in its jury instruction on presumption of intent, which followed PIK Crim. 54.01. He contended that the instruction was unconstitutional under the rationale of the recently announced decision of the United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450 (1979). The trial judge granted the motion for new trial on that ground on September 14, 1979.
The State then filed its notice of appeal to this court from the order “made on September 14, 1979, granting Defendant a new trial.” After the State’s brief was filed, Grimes was granted an extension of 30 days in which to file his brief. Within that time he filed a motion for involuntary dismissal, contending that
Grimes, on March 26, 1980, filed a motion in the trial court alleging that the State’s failure to bring him to trial within 180 days after a new trial was granted was in violation of
(1) that its earlier appeal from the order granting a new trial qualified as a “question reserved” under
(2) that the earlier appeal was “pending” and pursuant to
(3) that the defendant should be charged with the 30-day extension of time which he sought and was granted in which to file his brief in this court during the earlier appeal.
The four sections of the Kansas Statutes Annotated which are involved in this case were all enacted, substantially in their present form, when our code of criminal prоcedure was revised in 1970. See Laws of Kansas, 1970, chapter 129,
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitlеd to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant . . . .”
“Appeals to the supreme court may be taken by the prosecution from cases before a district judge or associate district judge as a matter of right in thе following cases, and no others:
“(1) From an order dismissing a complaint, information or indictment;
“(2) From an order arresting judgment;
“(3) Upon a question reserved by the prosecution.”
“When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an apрeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal.”
“(1) A defendant shall not be held in jail nor subject to an appearance bond during the pendency оf an appeal by the prosecution.
“(2) The time during which an appeal by the prosecution is pending shall not be counted for the purpose of determining whether a defendant is entitled to discharge undersection 22-3402 of this code.”
“When a question in a ease has been decided once on appeal and is final that decision becomes the law of the case.”
However, since we did not write a formal oрinion upon our dismissal of the earlier appeal, we wish to state our reasons for that dismissal. When the State filed its notice of appeal in September of 1979, the case was pending. A new trial had been ordered. The appeal was interlocutory, one taken between the commencement and termination of the action in the trial court. The order did not terminate the case; it directed that a trial be held. The legislature provided for interlocutory appeals by the State by
The appellant wants us to hold that an order of a trial court granting a new trial may form the basis for an appeal “[u]pon a question reserved by the prosecution” under
We have held, since the 1970 code was enacted, that questions reserved under
“Alternatively, the State contends the appeal herein is proper, pursuant toK.S.A. 1979 Supp. 22-3602(b) , as a question reserved. . . . Inherent in appeals as a matter of right by the prosecution is the element that the trial court has entered finаl judgment in the case. An appeal on a question reserved is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. A question reserved by the State will not be entertained on appeal merely to demonstrate errors of a trial court in rulings adverse to the State .... Questions reserved presuppose that the case at hand has concluded, but that an answer is necessary for proper disposition of future cases which may arise. No final judgment has been entered in the case before us.
“It is clear that the appeal herein is interlocutory in character and, accordingly, is governed byK.S.A. 1979 Supp. 22-3603 ....
“The appeal herein does not come within any of the situations set forth in 22-3603 and, accordingly, an interlocutory appeal is not available to the State. Inasmuch as no statutory basis for the appeal is shown, this court is without jurisdiction to hear the appeal and the appeal must be dismissed.” 227 Kan. at 912-913.
In State v. Gustin, 212 Kan. 475, 481, 510 P.2d 1290 (1973), Justice Owsley, speaking for a unanimous court, said:
“If a criminal defendant’s motion for judgment of acquittal is granted after a jury verdict of guilty, there is no appeal by the state and no need for an alternative or accompanying motion for new trial by defendant. If defendant’s motion for judgment of acquittal is denied, defendant should move for a new trial. If motion for new triаl is granted, there is no appeal by either state or defendant since that is not a final order. If defendant’s motion for new trial is denied, defendant may then appeal.”
We hold that
The second point raised is whether the time the earlier appeal was pending in this court should be counted in computing the 180 days, or whether that time should not be countеd pursuant to
In the case before us, it appears that the defendant’s bond was reduced by the trial court at the time the new trial was granted— but he was not granted an outright release. He was retained on an appearance bond — contrary to -3604(1) if that section applies. We hold that it does not.
The protection of -3604(2) is necessary to protect the State from the limits of the speedy trial statute,
The issue which the State attempted to raise in its earlier appeal in this case was not one which needed to be resolved in order for the prosecution to proceed with trial and to prove its case. It was not hampered by suppressed evidence or the like. A similar situation arose in the second appeal in the Hess case, the sequel to the one cited above. Hess was granted a new trial, but the State neglected to provide him with a trial while it appealed the order
“When the State appealed there was on file a sufficient information upon which the defendant had joined issue by his plea of not guilty. This Court had ordered a new trial; there were terms of court at which such trial might have been had; the appeal did not, of itself, prevent a retrial; there was no stay order. What prevented the prosecution from proceeding to try thе defendant again? There was no obstacle which prevented it; the only thing which may explain the delay is that such retrial would have been effort wasted if the State’s appeal had been successful. But in the face of the peremptory commands of the Bill of Rights and Section 62-1432, considerations of expediency can have no weight. The alternative would have been to secure defendant’s consent to the delay or to force him to apply for a stay order, but neither of these was done.” (p. 477.)
We conclude that -3604 is inapplicable to unauthorized interlocutory appeals attempted by the State, and that the 180-day period continued to run during the first appeal.
We now turn to the final issue: should the defendant be charged with the 30-day continuance which he requested and was granted in this court during the State’s initial appeal?
We conclude that the continuance in this court did not delay trial, and should not be charged against defendant in the computation of the 180-day period.
We should note also that the State did not raise the matter of the 30-day extension in the trial court, but presents it for the first time
An accused has the right to trial within the time fixed by the legislature, and when the State fails to commence trial within the time limit, the accused is entitled to be discharged. That is the situation which the trial court found. We find no error in its order.
The judgment is affirmed.
Dissenting Opinion
dissenting: My concern in the present case arises primarily from the majority opinion’s application of
“(1) A defendant shall not be held in jail nor subject to an appearance bond during the pendency of an appeal by the prosecution.
“(2) The time during which an appeal by the prosecution is pending shall not be counted fоr the purpose of determining whether a defendant is entitled to discharge undersection 22-3402 of this code.”
Section (2) of the statute states when an appeal by the prosecution is pending the time shall not be counted for purposes of the speedy trial statute. Section (1) prohibits bonding and incarceration of the defendant during an appeal by the prosecution. I do not read Section (1) as a limitation upon Section (2).
Further, although not expressly so stating, the majority opinion infers that an unauthorized appeal is not an appeal within the purview of Section (2). The statute speaks of an appeal. Whether authorized or not, an appeal is still an appeal.
If the appeal by the State from the order granting a new trial had been merely to harass the defendant or to gain time I would have no quarrel with the result reached.
In hindsight, the trial court’s granting of a new trial was clearly an erroneous decision. PIK Crim. 54.01 has repeatedly been upheld since the decision in Sandstrom v. Montana, 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450 (1979), was announced (starting with State v. Egbert, 227 Kan. 266, 606 P.2d 1022, cert. denied 449 U.S. 965 [1980]). At the time the trial court made its decision, however, the appellate courts of Kansas had not hаd the issue before them.
The issue of the effect of the Sandstrom decision upon what was a stock instruction across Kansas was of concern in this case and in many criminal cases across the state. The issue was
State v. Puckett, 227 Kan. 911, 610 P.2d 637 (1980), cited in the majority opinion, was decided subsequent to the order appealed from in the case before us. The State, accordingly, cannot be faulted for failure to know the Puckett determination that the prosecution is not authorized to appeal from an order granting a new trial.
For the reasons expressed herein I would reverse the trial court’s discharge of the defendant.
Herd, J., joins the foregoing dissenting opinion.