The opinion of the court was delivered by
The district court denied as untimely defendant Tyrone
Bradley's motion for a new trial based on newly discovered
evidence. Bradley appeals, claiming: (1) the two-year period of
limitation contained in K.S.A. 22-3501(1) is discretionary; and
(2) the district court abused its discretion in denying the
motion. We disagree and affirm the district court.
On October 2, 1981, Tyrone Bradley was convicted in two
separate cases of four counts of aggravated robbery (K.S.A.
21-3427) and one count of aiding and abetting attempted
aggravated robbery (K.S.A. 21-3301, -3427). On October 27, 1981,
Bradley was sentenced under the Habitual Criminal Act to a
controlling term of 45 years to life imprisonment.
Approximately four years later, in 1985, Henry Holliday, an
acquaintance of Bradley's and a prisoner at Lansing, gave a
hand-written statement to prison officials which purported to
exonerate Bradley of the crimes for which he had been convicted.
Bradley, also a prisoner at Lansing, claims he discovered this
in December 1988 and immediately secured counsel. On December 30,
1988, Bradley's lawyer took a statement from Holliday which, if
true, would exonerate Bradley.
On April 25, 1989, pursuant to K.S.A. 22-3501, Bradley filed a
motion for new trial based on Holliday's statement, claiming he
had moved for a new trial as soon as possible after learning of
Holliday's statement. At a hearing on May 22, 1989, the district
court found the motion was filed after the two-year limitation
for a new trial based on newly discovered evidence.
At common law, there was no limitation of time for prosecuting
a criminal offense. Limitations are set by the legislature.
Statutes of limitation in a criminal case are considered an act
of grace by the legislature. Though limitations are usually
placed upon the power of the sovereign to act, the legislature
may also limit an accused or an individual convicted of a crime
the right to a remedy.
K.S.A. 22-3501(1) limits the right of a person convicted of a
"The court on motion of a defendant may grant a new
trial to him if required in the interest of justice.
. . . A motion for a new trial based on the ground of
newly discovered evidence may be made within two
years after final judgment, but if an appeal is
pending the court may grant the motion only on remand
of the case. A motion for a new trial based on any
other grounds shall be made within 10 days after the
verdict or finding of guilty or within such further
time as the court may fix during the 10-day period."
Bradley filed the present motion almost seven years after his
convictions were affirmed on appeal. See State v. Bradley, No.
53,850, unpublished opinion filed July 16, 1982. Bradley argues
that the word "may" in the statute renders the two-year
limitation "discretionary and advisory" and that it was error for
the court to deny his motion as untimely.
Our appellate courts> have never defined the nature of the
two-year period of limitation contained in 22-3501(1). However,
this statute was modeled after Fed.R.Crim.Proc. 33, which
provides: "A motion for a new trial based on the ground of newly
discovered evidence may be made only before or within two years
after final judgment." (Emphasis added.) The italicized words do
not appear in K.S.A. 22-3501(1).
In United States v. White, 557 F.2d 1249
(8th Cir.), cert.
denied 434 U.S. 870
(1977), the court of appeals affirmed the
district court's denial of a motion for new trial based on newly
discovered evidence. In doing so, the court said:
"We conclude that White's new trial motion, filed
more than three years after the termination of his
direct appeal, was untimely. The purpose behind the
two-year limitation embodied in Rule 33 is to cut off
claims concerning the question of guilt or innocence
at a certain time after trial." 557 F.2d at 1251.
Like Rule 33, K.S.A. 22-3501(1) also provides: "The court on
motion of a defendant may grant a new trial to him if required in
the interest of justice." This provision in our statute is
modified by subsequent language which sets the two-year period of
limitation. The intent of the two-year limitation for a new trial
based on newly discovered evidence is to terminate questions of
the guilt or innocence at a specific time after trial. Under the
facts of this case, the limitation imposed by 22-3501 was final
and the district court properly found that the 22-3501 motion was
When time-barred by Federal Rule 33's two-year limitation for a
new trial based on newly discovered evidence, federal prisoners
may seek a new trial under 28 U.S.C. § 2255 (1982), a separate
civil procedure, which is similar to K.S.A. 60-1507. K.S.A.
60-1507 allows a prisoner in custody under sentence of a court of
general jurisdiction to claim that he or she should be released
because: (1) the sentence was imposed in violation of the
constitutions or laws of the United States or the state of
Kansas; (2) the court was without jurisdiction to impose such
sentence; (3) the sentence was in excess of the maximum
authorized by law; or (4) the sentence is otherwise subject to
collateral attack. Under 60-1507, the prisoner has the right to
move the court which imposed the sentence to vacate, set aside,
or correct the sentence at any time.
K.S.A. 60-1507, like 28 U.S.C. § 2255, provides the method for
a prisoner to request that his or her sentence be set aside and
the prisoner be granted a new trial for newly discovered evidence
after the two-year limitation of 22-3501 has expired. See Van
Bebber v. State, 220 Kan. 3, 551 P.2d 878 ...