State v. Legero

91 P.3d 1216, 278 Kan. 109, 2004 Kan. LEXIS 419
CourtSupreme Court of Kansas
DecidedJune 25, 2004
Docket89,485
StatusPublished
Cited by31 cases

This text of 91 P.3d 1216 (State v. Legero) is published on Counsel Stack Legal Research, covering Supreme Court 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. Legero, 91 P.3d 1216, 278 Kan. 109, 2004 Kan. LEXIS 419 (kan 2004).

Opinions

The opinion of the court was delivered by

McFarland, C.J.:

The narrow single issue in this case is whether a defendant in a criminal case whose probation has been revoked by a district magistrate judge may appeal the revocation to the district court under authority of K.S.A. 2003 Supp. 22-3609a.

[110]*110FACTS

The relevant facts and procedural history are not in dispute and may be summarized as follows. Legero pled guilty in separate cases to disorderly conduct and attempted criminal damage to property, both misdemeanors. On September 20, 2001, a district magistrate judge sentenced Legero to 30 days in jail for each count, to run concurrently. Legero was granted 12 months’ probation.

On May 9, 2002, Legero was before the magistrate for a probation revocation hearing. Legero stipulated to the allegation that he had been arrested and charged with driving under the influence of alcohol. The magistrate revoked Legero’s probation and ordered Legero to serve his jail sentence.

Legero filed a notice of appeal to the district court pursuant to K.S.A. 2003 Supp. 22-3609a. The notice appealed the magistrate’s revocation of Legero’s probation and imposition of sentence. The district court dismissed the appeal, finding that it lacked subject matter jurisdiction to review a magistrate’s order revoking probation.

Legero appealed the district court’s dismissal to the Court of Appeals. In a two to one decision, the Court of Appeals reversed the district court, concluding K.S.A. 2003 Supp. 22-3609a confers appellate jurisdiction in the district court. State v. Legero, 31 Kan. App. 2d 897, 75 P.3d 273 (2003). We granted the State’s petition for review.

ISSUE PRESENTED

K.S.A. 2003 Supp. 22-3609a(l) provides in part: “A defendant shall have the right to appeal from any judgment of a district magistrate judge.” (Emphasis added.)

Legero contends that a revocation of probation order issued by a district magistrate is included in the term “any judgment.” The State contends the term “any judgment” as used in the statute is defined as a pronouncement of guilt and the determination of punishment. The parties agree that the resolution of this appeal depends upon the construction of the term “any judgment” as used in K.S.A. 2003 Supp. 22-3609a(l).

[111]*111SCOPE OF REVIEW

Interpretation of a statute is a question of law permitting unlimited review. State v. Engles, 270 Kan. 530, 532, 17 P.3d 355 (2001).

ANALYSIS

The right to appeal is entirely statutory and is not contained in either fire United States or Kansas Constitutions. Subject to certain exceptions, Kansas courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by Wasson v. United Dominion Industries, 266 Kan. 1012, 1018-19, 974 P.2d 578 (1999). No exception to the rule is claimed herein.

The precise question of whether K.S.A. 2003 Supp. 22-3609a affords a defendant an appeal from a district magistrate’s revocation of his or her probation is a question of first impression. However, there are three cases involving somewhat different factual situations which warrant discussion herein.

In State v. Lashley, 233 Kan. 620, 664 P.2d 1358 (1983), the defendant sought to appeal from a magistrate’s order binding him over for arraignment. The district court ruled that the order was not appealable under 22-3609a. We affirmed the district court, stating:

“The order binding the defendant over for arraignment was not a ‘judgment’ from which a defendant has a right to an appeal. Judgments that can be appealed under K.S.A. 1982 Supp. 22-3609a are convictions in traffic or misdemeanor cases and those convictions rendered pursuant to K.S.A. 1982 Supp. 22-2909(c).” (Emphasis added.) 233 Kan. at 624.

In City of Wichita v. Patterson, 22 Kan. App. 2d 557, 919 P.2d 1047, rev. denied 260 Kan. 992 (1996), the defendant, over a 3-year period, pled guilty to several offenses in municipal court. On each occasion, the Wichita municipal court imposed a fine and a sentence, but placed the defendant on probation. In 1994, the municipal court revoked defendant’s probation. Under K.S.A. 22-3609, defendant tried to appeal the probation revocation to the district court, which then dismissed the appeal for lack of jurisdiction. Defendant then appealed the district court’s order dismissing his appeal to the Court of Appeals.

[112]*112The precise issue in Patterson was whether 22-3609(1) authorized an appeal to the district court of an order entered in municipal court revoking defendant’s probation. The Patterson court held:

“K.S.A. 22-3609(1) is clear and unambiguous. It provides that one may only appeal from ‘any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas.’ This is the only right of appeal from the judgment of a municipal court provided by the legislature. Defendant seeks to appeal from an order revoking his probation. He is not appealing from an order adjudging him guilty of violating an ordinance, and under the clear and unambiguous language of the statute, his appeal is not permitted.
“. . . K.S.A. 22-3610(a) states in part: ‘When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint.’ Interpreting this statute together with 22-3609 clearly indicates a legislative intent that appeals from municipal court will be limited to original adjudications of guilt and that post-trial decisions will not be appealable.” 22 Kan. App. 2d at 558-59.

In State v. Remlinger, 266 Kan. 103, 968 P.2d 671

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re K.S.
Court of Appeals of Kansas, 2026
In re T.T.
480 P.3d 790 (Court of Appeals of Kansas, 2020)
State v. Bunyard
Court of Appeals of Kansas, 2020
In re J.S.P.
439 P.3d 344 (Court of Appeals of Kansas, 2019)
City of Topeka v. Ramos
414 P.3d 255 (Court of Appeals of Kansas, 2018)
Ismael Dominguez-Herrera v. Jefferson B. Sessions
850 F.3d 411 (Eighth Circuit, 2017)
In Re the Care & Treatment of Emerson
369 P.3d 327 (Court of Appeals of Kansas, 2016)
In re C.D.A.-C.
360 P.3d 443 (Court of Appeals of Kansas, 2015)
State v. Roberts
259 P.3d 691 (Supreme Court of Kansas, 2011)
Albright v. State
251 P.3d 52 (Supreme Court of Kansas, 2011)
In Re Dm-T.
249 P.3d 418 (Supreme Court of Kansas, 2011)
State v. Thompson
250 P.3d 282 (Court of Appeals of Kansas, 2011)
State v. Schad
206 P.3d 22 (Court of Appeals of Kansas, 2009)
State v. Gill
196 P.3d 369 (Supreme Court of Kansas, 2008)
State v. Ehrlich
189 P.3d 491 (Supreme Court of Kansas, 2008)
State v. Gillen
181 P.3d 564 (Court of Appeals of Kansas, 2008)
Rector v. Tatham
174 P.3d 445 (Court of Appeals of Kansas, 2008)
State v. Vasquez
170 P.3d 910 (Court of Appeals of Kansas, 2007)
State v. Inkelaar
164 P.3d 844 (Court of Appeals of Kansas, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
91 P.3d 1216, 278 Kan. 109, 2004 Kan. LEXIS 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-legero-kan-2004.