State v. Flowers

873 P.2d 226, 19 Kan. App. 2d 563, 1994 Kan. App. LEXIS 43
CourtCourt of Appeals of Kansas
DecidedMay 6, 1994
DocketNo. 69,594
StatusPublished
Cited by1 cases

This text of 873 P.2d 226 (State v. Flowers) 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
State v. Flowers, 873 P.2d 226, 19 Kan. App. 2d 563, 1994 Kan. App. LEXIS 43 (kanctapp 1994).

Opinion

Lewis, J.:

Defendant Albert E. Flowers entered a plea of guilty to robbery and was sentenced to a term of 3 to 10 years. He appealed the sentence to this court, and we affirmed in an unpublished opinion, No. 67,526, filed September 25, 1992. Defendant then filed a motion to withdraw his plea of guilty. The trial court denied the motion. This appeal is from that denial.

Defendant raises a number of issues, some of which relate to his attempt to withdraw his plea of guilty. The State argues that we have no jurisdiction to entertain this appeal, and we first turn to that issue.

K.S.A. 22-3210(d) deals with the authority of the district court to allow a defendant to withdraw a plea of guilty:

“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set [564]*564aside the judgment of conviction and permit the defendant to withdraw the plea.” (Emphasis added.)

This statute deals only with the authority of a trial court to permit withdrawal of a plea of guilty. It contains no provision affecting appellate jurisdiction and does not provide for an appeal from a decision denying or allowing a motion to withdraw a plea of guilty.

The right of a defendant to appeal his conviction after a plea of guilty or nolo contendere is set forth by K.S.A. 22-3602(a):

"Except as otherwise provided, an appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against the defendant in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed. No appeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507 and amendments thereto.” (Emphasis added.)

“ ‘This court has only such appellate jurisdiction as is provided by law. Jurisdiction to entertain an appeal is conferred by statute pursuant to article 3, § 3 of the Constitution of Kansas, and when the record discloses a lack of jurisdiction it is the duty of this court to dismiss the appeal. State v. Leopard, 191 Kan. 581, 582, 382 P.2d 330 (1963); Fildes v. Fildes, 215 Kan. 622, 527 P.2d 1007 (1974).’ ” State v. Ortiz, 230 Kan. 733, 735, 640 P.2d 1255 (1982). “The right to appeal in a criminal case is strictly statutory and absent statutory authority there is no right to an appeal.” State v. Freeman, 234 Kan. 278, 279, 670 P.2d 1365 (1983). See State v. Beechum, 251 Kan. 194, 201-02, 833 P.2d 988 (1992); State v. Crozier, 225 Kan. 120, 122, 587 P.2d 331 (1978). “The right to an appeal in this state is neither a vested nor a constitutional right. The right to an appeal is statutory and, in the absence of a statute which authorizes an appeal, an appeal is not available to the losing party. State v. Freeman, 234 Kan. 278, 670 P.2d 1365 (1983).” U.S.D. No. 503 v. McKinney, 236 Kan. 224, 228, 689 P.2d 860 (1984).

The law in Kansas is clear that a defendant may maintain an appeal only if it is authorized by statute. If the appeal in question is not authorized, we have no power or jurisdiction to hear the [565]*565appeal. The existence of jurisdiction has nothing to do with the merits of the appeal. If jurisdiction does not exist, we are powerless to act regardless of the merits.

In this case, defendant is appealing' from the denial of his motion to withdraw a plea of guilty. If successful, this appeal would reverse his conviction. Thus, an appeal from the denial of a motion to withdraw a plea of guilty is a direct attack on the conviction itself. The provisions of K.S.A. 22-3602(a) do not permit defendant to prosecute an appeal from his conviction. It could be argued that this is an appeal from the denial of a motion to withdraw a plea of guilty and not an appeal from a judgment of conviction. This is a distinction based only on the manipulation of words, and it ignores reality. The legislature has determined that a defendant may not directly appeal a conviction based upon a plea of guilty. In order to give meaning to this legislation, we look to substance over form. The reality is that this appeal is a direct attack on the conviction under any title we may wish to use. The statute prohibits an appeal from a conviction following a plea of guilty or nolo contendere. The first appeal taken'in this action provides an illustration. In that appeal, defendant challenged only the sentence imposed and did not challenge his conviction. That appeal did not fall within the provisions of 22-3602(a) and was permitted. This appeal attacks the conviction and is not permitted.

Our decision is supported by other Kansas decisions in point. In State v. Larry, 252 Kan. 92, 843 P.2d 198 (1992), the Supreme Court held in Syl. ¶ 2: “No appeal shall be taken by a defendant from a plea of guilty before a district judge. K.S.A. 22-3602(a).” The court went on to say:

“An appeal may be taken by the defendant as a matter of right from any judgment against the defendant in the district court. A defendant is required to be sentenced without unreasonable delay after conviction by a judge or jury. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court must advise the defendant of the right to appeal. K.S.A. 22-3424(5). A defendant, however, may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere. K.S.A. 22-3602(a)." (Emphasis added.) 252 Kan. at 95.

In Lill v. State, 4 Kan. App. 2d 40, 41-42, 602 P.2d 129 (1979), we dealt with a motion pursuant to K.S.A. 60-1507

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Cite This Page — Counsel Stack

Bluebook (online)
873 P.2d 226, 19 Kan. App. 2d 563, 1994 Kan. App. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-flowers-kanctapp-1994.