State v. Walker

413 P.2d 128, 196 Kan. 464, 1966 Kan. LEXIS 299

• Court: Supreme Court of Kansas
• Decided: April 9, 1966
• Docket: No. 44,239
• Status: Published

Opinion

The opinion of the court was delivered by

Price, J.:

Defendant, Odom Walker, being represented by his retained counsel at both his preliminary examination and trial, was, on October 27, 1964, convicted of the offense of robbery in the first degree.

On or about March 1, 1965, defendant filed a notice of appeal pro se. On June 29, 1965, this court denied the state’s motion to dismiss the appeal. On July 21, 1965, the district court appointed present counsel to represent defendant in the appeal. On October 15, 1965, this court sustained the state’s motion to dismiss the appeal. Shortly thereafter present counsel filed a motion to reinstate the appeal. On November 3, 1965, the motion was sustained and the appeal was reinstated. Abstracts and briefs were filed and the appeal was heard at the March 1966 session.

Despite the fact the state — apparently through a misunderstanding of our order of November 3, 1965, reinstating the appeal — does not now specifically urge that the appeal should be dismissed, adherence to recent decisions of this court compels its dismissal.

The record shows — and it is conceded — that following his conviction and the denial of his motion for a new trial, defendant, on December 16, 1964, filed an application for parole. It was denied on January 8, 1965.

In a number of recent cases it has been held that when a defendant in a criminal action, following conviction and sentence, makes application to the district court for a parole or for suspension of execution of the sentence imposed, he thereby recognizes the validity of the judgment and acquiesces therein, thus precluding appellate review (State v. Hasty, 196 Kan. 5, 410 P. 2d 318, and cases there cited).

The appeal is therefore dismissed.

Price, Fontron and O’Connor, JJ., dissent.