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CITY OF DODGE CITY v. RABE

June 15, 1990.

CITY OF DODGE CITY, Appellee,
v.
KENNY RABE, Appellant.



This is a direct appeal by Kenny Rabe from his conviction for driving under the influence of alcohol (DUI). Rabe was convicted in the Municipal Court of Dodge City, Kansas, and appealed that conviction to the District Court of Ford County, Kansas. This appeal arises as a result of the trial court's refusal to dismiss the case because Rabe was not brought to trial within the 180-day limit required by K.S.A. 22-3402(2).

Rabe filed a timely notice of appeal in the district court on February 25, 1988. On that same day, he executed an appeal bond that was approved by the municipal court judge and filed in the district court. A certificate of service was filed showing service by regular mail on the city attorney who prosecuted the case, as well as the municipal court judge who tried the case and approved the appeal bond and the clerk of the municipal court. The appeal was docketed and a case number was assigned. The appeal languished on the docket for some 14 months, at which time counsel for Rabe filed a motion to dismiss the case because he had not been brought to trial within the 180 days mandated by K.S.A. 22-3402(2). K.S.A. 22-3402(2) provides:
"If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3)."
Rabe was brought to trial some 17 months after the notice of appeal was filed.
The city attorney and municipal court clerk denied they received copies of the notice of appeal. The trial court appears to have held counsel for Rabe had mailed the notice of appeal, but it was not received. The trial court then reasoned:
"5. That since the statute K.S.A. 22-3609(3) states that the defendant shall cause notice of appeal to be served upon the City Attorney prosecuting the case and the City attorney did not receive the mailed notice pursuant to the Certificate of Service filed by defense attorney Leslie A. Phelps, that the appeal is not properly docketed, as defense attorney should have used certified mail service or personal service of process by the Sheriff."
  Rabe relies solely on the right to a speedy trial as provided by K.S.A. 22-3402(2). He does not raise as an issue a claim that

[14 Kan. App. 2d 470]

      he was denied his constitutional right to a speedy trial, nor did he do so in the trial court. For those interested in the distinction between the statutory and constitutional right to a speedy trial, see Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972); State v. Rosine, 233 Kan. 663, 668-70, 664 P.2d 852 (1983); State v. Taylor, 3 Kan. App. 2d 316, 321, 594 P.2d 262 (1979).

  Only one case is cited by the parties and both sides rely on that case to support their respective positions. Rabe interprets City of Overland Park v. Fricke, 226 Kan. 496, 601 P.2d 1130 (1979), to hold that when an appeal from a municipal court conviction is properly filed and a notice of appeal mailed to the city attorney, the accused has done what he or she is required to do by statute, and the statutory speedy trial period commences to run. The City, in its two-page brief, argues that, while Fricke places the obligation upon the City to docket an appeal in a timely fashion, in this case, since the City did not receive notice of the appeal being filed, the time limitations of the speedy trial statute did not commence to run until there was actual notice to the city attorney.

  Historically, the duty to prosecute a case rested with the prosecution. That view has been modified, and the trial judge now also has responsibility for management of the trial calendar. Obviously, the prosecution also has at least an equal duty to see that an accused is not denied a speedy trial.

  In State v. Higby, 210 Kan. 554, 502 P.2d 740 (1972), our Supreme Court held that the obligation to bring a defendant to trial within the time limitations provided by the speedy trial statute is on the State and the defendant is not required to take any affirmative action. The court went on to hold:
"Only the state is empowered to bring a criminal charge to trial; hence the duty of procuring prompt trial rests upon the state (see ABA Standards, Speedy Trial, Approved Draft, 1968, § 2.2, p. 17); however, the ultimate responsibility for management of the trial calendar is in the trial court (ibid., § 1.2, pp. 11-12; ABA Standards; The Function of the Trial Judge, Tentative Draft, § 1.1 (a), pp. 25-26; § 3.8, pp. 48-49)." 210 Kan. at 556.
  Our dilemma in this appeal arises because of three cases decided before the statutes permitted notice of appeal from municipal courts> to be filed directly in the district court. The results

[14 Kan. App. 2d 471]

      reached in those cases appear to us to be inconsistent with a second line of cases dealing with misdemeanor criminal cases commenced in the district court. The three cases involving appeals from a municipal court are City of Elkhart v. Bollacker, 243 Kan. 543, 757 P.2d 311 (1988); City of Garnett v. Zwiener, 229 Kan. 507, 625 P.2d 491 (1981); and City of Overland Park v. Fricke, 226 Kan. 496.

  In Fricke, the Supreme Court affirmed the trial court's dismissal of a case for denial of a statutory speedy trial. Fricke was convicted in the municipal court. He perfected an appeal. At that time, notices of appeal were filed in the municipal court. Fricke appeared in the district court at a docket call and announced he was maintaining his not guilty plea and wanted a trial. Some eight months later, the trial judge dismissed the case for failure to bring the defendant to trial within the 180-day limit required by K.S.A. 22-3402(2). The city argued on appeal that the speedy trial statute was not applicable to municipal court appeals in the district court. This argument is premised on the fact that the speedy trial statute requires an accused to be brought to trial within 180 days "after arraignment on the charge." The city conceded that the appeal was properly taken, that defendant was held to answer under appeal bond, and that the defendant was not tried within 180 days from his first appearance in district court.

  The Supreme Court held that the obligation is placed on the prosecution to proceed with reasonable dispatch in the trial of criminal cases and that the speedy trial statute applies to appeals from a municipal court. 226 Kan. at 501-02. The court then concluded that the time limitations provided in the speedy trial statute commences to run from the date the appeal is, or should have been, docketed in the district court. In the same paragraph, the court stated the time limitation should commence to run when there is, or should be, a complaint against the defendant pending in the district court. 226 Kan. at 502.

  In the case before this court, the appeal was docketed in the district court, but no complaint was filed in the district court because the city attorney did not receive notice the appeal had been filed.

[14 Kan. App. 2d ...


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