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Kansas Code of Criminal Procedure

K.S.A. Chapter 22 - Article 36 - Appeals

Current through end of 2018 legislative session

22-3601 Appellate jurisdiction of court of appeals and supreme court in criminal cases.

22-3602 22-3602. Appeals by defendant, when; appeals by prosecution; transfers to supreme court.

22-3603 Interlocutory appeals by the state.

22-3604 Release of defendant pending appeal by prosecution.

22-3605 Decision and disposition of case on appeal.

22-3606 Procedure on appeal.

22-3607 Disposition of defendant when judgment reversed on appeal.

22-3608 Time for appeal from judgment of district court.

22-3609 Appeals from municipal courts.

22-3609a Appeals from district magistrate judges.

22-3610 Hearing on appeal; exception.

22-3611 Judgment on appeal.

22-3612 Criminal appeals from district court; attorney general to invoke county or district attorney's assistance; costs.

22-3613 Stay during prosecution appeal from order granting relief under K.S.A. 60-1507.

22-3601. Appellate jurisdiction of court of appeals and supreme court in criminal cases.

(a) Any appeal permitted to be taken from a district court’s final judgment in a criminal case shall be taken to the court of appeals, except in those cases reviewable by law in the district court or in which a direct appeal to the supreme court is required. Whenever an interlocutory appeal is permitted in a criminal case in the district court, such appeal shall be taken to the court of appeals.

(b) Any appeal permitted to be taken from a district court’s final judgment in a criminal case shall be taken directly to the supreme court in the following cases:

(1) any case in which a statute of this state or of the United States has been held unconstitutional;

(2) any case in which the defendant has been convicted of a class A felony;

(3) any case in which a maximum sentence of life imprisonment has been imposed, unless the maximum sentence has been imposed pursuant to K.S.A. 21-4643, prior to its repeal, or 21-6627, and amendments thereto; and

(4) except as provided further, any case in which the crime was committed on or after July 1, 1993, and the defendant has been convicted of an off-grid crime. The provisions of this paragraph shall not apply to any case in which the off-grid crime was:

(A) Aggravated human trafficking, K.S.A. 2016 Supp. 21-5426(c)(3), and amendments thereto;

(B) rape, K.S.A. 2016 Supp. 21-5503(b)(2)(B), and amendments thereto;

(D) aggravated indecent liberties with a child, K.S.A. 2016 Supp. 21-5506(c)(2)(C)(ii), and amendments thereto;

(E) sexual exploitation of a child, K.S.A. 2016 Supp. 21-5510(b)(2)(B), and amendments thereto;

(F) aggravated internet trading in child pornography, section 3(c)(3) [of 2017 SB 40], and amendments thereto;

(G) commercial sexual exploitation of a child, K.S.A. 2016 Supp. 21-6422(b)(2), and amendments thereto; or

(H) an attempt, conspiracy or criminal solicitation, as defined in K.S.A. 2016 Supp. 21-5301, 21-5302 or 21-5303, and amendments thereto, of any such felony.

History: L. 1970, ch. 129, § 22-3601; L. 1975, ch. 178, § 21; L. 1989, ch. 102, § 1; L. 1992, ch. 239, § 262; L. 2011, ch. 100, § 9, L. 2013, ch. 120, § 26; L. 2017, ch. 78, § 19; July 1.

22-3602. Appeals by defendant, when; appeals by prosecution; transfers to supreme court.

(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.

(b) Appeals to the court of appeals may be taken by the prosecution from cases before a district judge as a matter of right in the 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; or

(4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid crime.

(d) Appeals to a district judge may be taken by the prosecution from cases before a district magistrate judge as a matter of right in the cases enumerated in subsection (b) and from orders enumerated in K.S.A. 22-3603 and amendments thereto.

(e) Any criminal case on appeal to the court of appeals may be transferred to the supreme court as provided in K.S.A. 20-3016 and 20-3017, and amendments thereto, and any party to such case may petition the supreme court for review of any decision of the court of appeals as provided in subsection (b) of K.S.A. 20-3018 and amendments thereto, except that any such party may appeal to the supreme court as a matter of right in any case in which a question under the constitution of either the United States or the state of Kansas arises for the first time as a result of the decision of the court of appeals.

(f) For crimes committed on or after July 1, 1993, an appeal by the prosecution or the defendant relating to sentences imposed pursuant to a presumptive sentencing guidelines system as provided in K.S.A. 21-4701 et seq. prior to their repeal, or the revised Kansas sentencing guidelines act, K.S.A. 21-6801 through 21-6824, and amendments thereto, shall be as provided in K.S.A. 21-4721 prior to its repeal, or K.S.A. 21-6820, and amendments thereto.

History: L. 1970, ch. 129, § 22-3602; L. 1976, ch. 167, § 1; L. 1977, ch. 112, § 9; L. 1986, ch. 115, § 65; L. 1987, ch. 117, § 1; L. 1992, ch. 239, § 263; L. 1993, ch. 291, § 196; L. 1999, ch. 159, § 7; L. 2011, ch. 30, § 133, July 1.

22-3603. Interlocutory appeals by the state.

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 appeal may be taken by the prosecution from such order if notice of appeal is filed within 14 days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal.

History: L. 1970, ch. 129, § 22-3603; L. 1971, ch. 118, § 1; L. 1975, ch. 178, § 23; L. 2010, ch. 135, § 27; July 1.

22-3604. Release of defendant pending appeal by prosecution.

(1) Except as provided in subsection (3), 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 for the purpose of determining whether a defendant is entitled to discharge under K.S.A. 22-3402 and amendments thereto. For purposes of this section, "an appeal by the prosecution" includes, but is not limited to, appeals authorized by subsection (b) of K.S.A. 22-3602, and amendments thereto, appeals authorized by K.S.A. 22-3603, and amendments thereto, and any appeal by the prosecution which seeks discretionary review in the supreme court of Kansas or the United States supreme court. Such an appeal remains "pending" until final resolution by the court of last resort.

(3) A defendant charged with a class A, B or C felony or, if the felony was committed on or after July 1, 1993, an off-grid felony, a nondrug severity level 1 through 5 felony or a drug severity level 1 through 4 felony crime shall not be released from jail or the conditions of such person's appearance bond during the pendency of an appeal by the prosecution. The time during which an appeal by the prosecution is pending in a class A, B or C felony or, if the felony was committed on or after July 1, 1993, an off-grid felony, a nondrug severity level 1 through 5 felony or a drug severity level 1 through 3 felony case shall not be counted for the purpose of determining whether the defendant is entitled to discharge under K.S.A. 22-3402 and amendments thereto.

History: L. 1970, ch. 129, § 22-3604; L. 1990, ch. 111, § 1; L. 1994, ch. 291, § 64; L. 2009, ch. 61, § 3, L. 2012, ch. 150, § 42; July 1.

22-3605. Decision and disposition of case on appeal.

Any appellate court may reverse, affirm or modify the judgment or order appealed from, or may order a new trial in the district court. In either case the cause must be remanded to the district court with proper instructions, together with the decision of the appellate court, within the time and in the manner to be prescribed by rule of the supreme court.

History: L. 1970, ch. 129, § 22-3605; L. 1975, ch. 178, § 24; Jan. 10, 1977.

22-3606. Procedure on appeal.

Except as otherwise provided by statute or rule of the supreme court, the statutes and rules governing procedure on appeals to an appellate court in civil cases shall apply to and govern appeals to an appellate court in criminal cases.

History: L. 1970, ch. 129, § 22-3606; L. 1971, ch. 114, § 9; L. 1975, ch. 178, § 25; Jan. 10, 1977.

22-3607. Disposition of defendant when judgment reversed on appeal.

When a judgment of conviction or sentence is reversed, and it appears that no crime has been committed, the appellate court shall direct that the defendant be discharged. If it appears that the defendant is guilty of a crime, although improperly charged, the appellate court shall order the defendant to be held in custody, subject to the order of the court in which he or she was convicted.

History: L. 1970, ch. 129, § 22-3607; L. 1975, ch. 178, § 26; Jan. 10, 1977.

22-3608. Time for appeal from judgment of district court.

(a) If sentence is imposed, the defendant may appeal from the judgment of the district court not later than 10 days after the expiration of the district court's power to modify the sentence. The power to revoke or modify the conditions of probation or the conditions of assignment to a community correctional services program shall not be deemed power to modify the sentence. The provisions of this subsection shall not apply to crimes committed on or after July 1, 1993.

(b) If the imposition of sentence is suspended, the defendant may appeal from the judgment of the district court within 10 days after the order suspending imposition of sentence. The provisions of this subsection shall not apply to crimes committed on or after July 1, 1993.

(c) For crimes committed on or after July 1, 1993, the defendant shall have 14 days after the judgment of the district court to appeal.

History: L. 1970, ch. 129, § 22-3608; L. 1986, ch. 123, § 23; L. 1992, ch. 239, § 264; L. 1993, ch. 291, § 197; L. 2010, ch. 135, § 28; July 1.

22-3609. Appeals from municipal courts.

(a) The defendant shall have the right to appeal to the district court of the county from any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas or any findings of contempt. The appeal shall be assigned by the chief judge to a district judge. The appeal shall stay all further proceedings upon the judgment appealed from.

(b) 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 filed until after the sentence has been imposed. No appeal shall be taken more than 14 days after the date the sentence is imposed.

(c) The notice of appeal shall designate the judgment or part of the judgment appealed from. The defendant shall cause notice of the appeal to be served upon the city attorney prosecuting the case. The judge whose judgment is appealed from or the clerk of the court, if there is one, shall certify the complaint and warrant to the district court of the county, but failure to do so shall not affect the validity of the appeal.

(d) Except as provided herein, the trial of municipal appeal cases shall be to the court unless a jury trial is requested in writing by the defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant's counsel. The time requirement provided in this subsection regarding when a jury trial shall be requested may be waived in the discretion of the court upon a finding that imposing such time requirement would cause undue hardship or prejudice to the defendant. A jury in a municipal appeal case shall consist of six members. All appeals taken by a defendant from a municipal judge in cigarette or tobacco infraction or traffic infraction cases shall be tried by the court.

(e) Notwithstanding the other provisions of this section, appeal from a conviction rendered pursuant to K.S.A. 12-4416(b), and amendments thereto, shall be conducted only on the record of the stipulation of facts relating to the complaint.

(f) At the conclusion of the case, the district court shall send notice of dismissal, conviction or acquittal to the municipal court clerk.

History: L. 1970, ch. 129, § 22-3609; L. 1971, ch. 114, § 10; L. 1975, ch. 202, § 1; L. 1976, ch. 163, § 21; L. 1977, ch. 112, § 10; L. 1981, ch. 154, § 3; L. 1982, ch. 149, § 1; L. 1982, ch. 144, § 18; L. 1983, ch. 115, § 1; L. 1986, ch. 115, § 66; L. 1992, ch. 176, § 1; L. 1998, ch. 192, § 8; L. 1999, ch. 57, § 32; L. 2004, ch. 71, § 5; L. 2010, ch. 135, § 29; L. 2013, ch. 118, § 5; L. 2016, ch. 93, § 15; July 1.

22-3609a. Appeals from district magistrate judges.

(1) A defendant shall have the right to appeal from any judgment of a district magistrate judge. The chief judge shall be responsible for assigning a district judge for any such appeal. The appeal shall stay all further proceedings upon the judgment appealed from.

(2) An appeal to a district judge shall be taken by filing a notice of appeal with the clerk of the court. No appeal shall be filed until after the sentence has been imposed. No appeal shall be taken more than 14 days after the date the sentence is been imposed.

(3) The clerk of the district court shall deliver the complaint, warrant and any appearance bond to the district judge to whom such appeal is assigned. The case shall be tried de novo before the assigned district judge.

(4) No advance payment of a docket fee shall be required when the appeal is taken.

(5) All appeals taken by a defendant from a district magistrate judge in misdemeanor cases shall be tried by the court unless a jury trial is requested in writing by the defendant. All appeals taken by a defendant from a district magistrate judge in traffic infraction and cigarette or tobacco infraction cases shall be to the court.

(6) Notwithstanding the other provisions of this section, appeal from a conviction rendered pursuant to subsection (c) of K.S.A. 22-2909 and amendments thereto shall be conducted only on the record of the stipulation of facts relating to the complaint.

History: L. 1976, ch. 163, § 22; L. 1977, ch. 112, § 11; L. 1982, ch. 144, § 19; L. 1984, ch. 39, § 44; L. 1986, ch. 115, § 67; L. 1996, ch. 214, § 36; L. 1998, ch. 192, § 9; L. 1999, ch. 57, § 33; L. 2010, ch. 135, § 30; L. 2013, ch. 118, § 6; July 1.

22-3610. Hearing on appeal; exception.

(a) When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint, unless the complaint shall be found defective, in which case the court may order a new complaint to be filed and the case shall proceed as if the original complaint had not been set aside. The case shall be tried de novo in the district court.

(b) Notwithstanding subsection (a), appeal from a conviction rendered pursuant to subsection (b) of K.S.A. 12-4416 shall be conducted only on the record of the stipulation of facts relating to the complaint.

History: L. 1970, ch. 129, § 22-3610; L. 1982, ch. 144, § 20; July 1.

22-3611. Judgment on appeal.

If upon appeal to the district court the defendant is convicted, the district court shall impose sentence upon him and render judgment against him for all costs in the case, both in the district court and in the court appealed from.

History: L. 1970, ch. 129, § 22-3611; July 1.

22-3612. Criminal appeals from district court; attorney general to invoke county or district attorney's assistance; costs.

In representing the interests of the state in appeals from criminal actions in the district courts of this state to the supreme court or court of appeals or in other post-conviction actions arising from criminal prosecutions, the attorney general shall invoke the assistance of the county or district attorney of the county in which the action originally commenced. The reasonable costs of such assistance shall be allowed and paid by the board of county commissioners from the county general fund for any services rendered by such county's county or district attorney pursuant to this section.

History: L. 1977, ch. 119, § 1; July 1.

22-3613. Stay during prosecution appeal from order granting relief under K.S.A. 60-1507.

(a) When a district court has granted relief in a proceeding under K.S.A. 60-1507, and amendments thereto, and the prosecution files a docketing statement in an appellate court seeking an appeal from the district court’s decision to grant relief, the underlying criminal case shall automatically be stayed, and the time during which the prosecution’s appeal is pending shall not be counted for the purpose of determining whether a defendant is entitled to discharge under K.S.A. 22-3402, and amendments thereto, until the mandate in the prosecution’s appeal is issued.

(b) Notwithstanding the stay required by subsection (a), a court may release the prisoner on bond in accordance with K.S.A. 22-2804, and amendments thereto, regardless of whether the prisoner has filed a notice of appeal.

(c) The stay of the underlying criminal case in subsection (a) may be lifted upon a motion filed in appellate court if the court finds that the prisoner:

(1) Has made a strong showing that the prisoner is entitled to relief; and

(2) will be irreparably injured if the stay is not lifted.

(d) If the stay in subsection (a) is lifted:

(1) The time during which the prosecution’s appeal is pending shall not be counted for the purpose of determining whether a defendant is entitled to discharge under K.S.A. 22-3402, and amendments thereto, until the mandate in the prosecution’s appeal is issued; and (2) the prisoner shall be entitled to a new bond hearing in the underlying criminal case pursuant to K.S.A. 22-2802, and amendments thereto.

(e) This section shall be a part of and supplemental to the Kansas code of criminal procedure.

History: L. 2018, ch. 105, § 1; July 1.