City of Lenexa v. Higgins

825 P.2d 1152, 16 Kan. App. 2d 499, 1992 Kan. App. LEXIS 31
CourtCourt of Appeals of Kansas
DecidedFebruary 7, 1992
DocketNo. 66,688
StatusPublished
Cited by4 cases

This text of 825 P.2d 1152 (City of Lenexa v. Higgins) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Lenexa v. Higgins, 825 P.2d 1152, 16 Kan. App. 2d 499, 1992 Kan. App. LEXIS 31 (kanctapp 1992).

Opinion

Brazil, J.:

Brian J. Higgins appeals the district court’s order granting the City of Lenexa’s (City) motion to dismiss due to Higgins’ failure to file a notice of appeal. K.S.A. 22-3609(2). Higgins contends the time in which to file an appeal had not run and the City’s policies deny a defendant equal protection. We affirm. The facts are not in dispute. Higgins was convicted in Lenexa Municipal Court of obstructing and resisting an officer and criminal damage to property in violation of Lenexa city ordinances. On the same day, Higgins was sentenced by the court and given a 10-day stay of sentence. The court’s decision, sentence) and stay were signed by the judge on the back of the complaints filed with the court. It is undisputed Higgins was represented by counsel at those proceedings.

Five days later, Higgins filed his appeal bond through a bonding company with the municipal court clerk. He was given a date [500]*500to appear in-Johnson County District Court. Apparently, Higgins bejieved he had filled out, with the clerk’s office, the papers necessary to perfect his appeal,. It is undisputed that Higgins failed to file a notice of appeal with either the Lenexa Municipal Court or the Johnson. County District Court. Higgins also failed to serve a notice of appeal on the Lenexa City Attorney’s office.

The City filed a motion to dismiss for lack of jurisdiction, due to Higgins’ failure to file a notice of' appeal. The court granted the City’s motion. ,■ ,

1. Notice of appeal.

Higgins contends that, because the municipal court never filed a journal entry or judgment form, the 10-day filing period found in K.S.A. 22-3609(2) never commenced! Higgins states, and both parties ágree, the code of procedure for municipal courts, K.S.A. 12-4101 et seq., does not expressly state whether the time to file an appeal runs from the court’s oral pronouncement of sentence or from the filing of a joúrhal entry. Higgins consequently asserts the filing of a journal .entry is governed not by the Code of criminal procedure, but by the code of civil-procedure, specifically K.S.A. 60-258.

The City contends the municipal court proceeding is more in the nature of a. criminal rather than civil proceeding. As such, K.S.A. 60-258 is inapplicable. Further, the court’s oral pronouncement of conviction and sentence meets the applicable requirements found in the code of criminal procedure. The City asserts the 10-day filing period of K.S.A. 22-3609(2) had expired.

K.S.A. 22-3609(2) reads:

“An appeal to the district court shall be taken by filing, in the district court of the county in which the municipal court is located, a notice of appeal and any appearance bond required by the municipal court, Municipal court clerks are hereby authorized to accept notices of appeal and appearance bonds under this subsection and shall forward such notices and bonds, to the district court. No appeal shall be taken more than 10 days after the date of the judgment appealed from.”

Higgins asserts that the judgment referred to in K.S.A. 22-3609(2) must be filed and journalized according to the provisions of K.S.A. 60-258. K.S.A. 60-258 states that “[n]o judgment shall be effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of thé court.” [501]*501We disagree. The municipal code’s provisions regarding judgment read: “If the accused' person is found not guilty, judgment shall be rendered immediately. If the accused person is found guilty, sentence shall be imposed and judgment rendered without unreásonable deláy.” K.S.A. 12-4507. “When a judgment is rendered, thé municipal judge or clerk of thé municipal court shall enter such judgment on the. docket; however, the omission of this duty shall not affect the validity.of the judgment.” K.S.A. 12-4508.

It is well settled that failure to perfect an appeal from a conviction in municipal court to the district court by filing a written notice of appeal as required by K.S.A. 22-360.9(2) is a jurisdictional defect. City of Bonner Springs, v. Clark, 3 Kan. App. 2d 8, 588 P.2d 477 (1978). See also City of Overland Park v. Nikias, 209 Kan. 643, Syl. ¶ 4, 498 P.2d 56 (1972) (“in an appeal from orders of . the district court dismissing, two attempted criminal appeals from the Municipal Court of Overland Park, Kansas, the record is examined and it -is held both attempted appeals were properly dismissed since written notices of appeal were not filed in the municipal court as required by K.S.A. 1970 Supp. 22-3609[2],”). It is also the case that “[t]he judgment, in a criminal case, whether it imposes confinement, imposes a fine, grants probátion, suspends the imposition of sentence, or imposes any combination of those alternatives, is effective upon its pronouncement from the bench.” State v. Moses, 227 Kan. 400, Syl. f 2, 607 P.2d 477 (1980). '

A conviction in a municipal court proceeding is more criminal in nature than civil. K.S.A. 12-4103 reads:

“This code is intended to provide for the just determination of every proceeding for violation of city ordinances. Its provisions shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. If no procedure is provided by this code, the court shall proceed in any lawful manner consistent with any applicable law and not inconsistent with this code.”

It is undisputed that the municipal court judge pronounced Higgins’ convictions and sentence in open court, in the presence of Higgins and his counsel. The judge’s handwritten minutes found on the back of the complaints filed with the court reflect Higgins’convictions, sentence, and stay of 10 days.

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Bluebook (online)
825 P.2d 1152, 16 Kan. App. 2d 499, 1992 Kan. App. LEXIS 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-lenexa-v-higgins-kanctapp-1992.