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Tolen v. State

February 1, 2008

GARNET C. TOLEN, JR., APPELLANT,
v.
STATE OF KANSAS, APPELLEE.



Appeal from Saline district court; DAN D. BOYER, judge.

SYLLABUS BY THE COURT

1. The constitutionality of a statute is presumed, and all doubts must be resolved in favor of the validity of the statute. Before the statute may be stricken, it must clearly appear to violate the constitution. This court must construe the statute as constitutionally valid if there is any reasonable way to do so.

2. Defendants for whom a statute is constitutionally applied cannot challenge the constitutionality of the statute on the grounds that the statute may conceivably be applied unconstitutionally in circumstances other than those before the court.

3. An appellate court is not required to consider new issues or arguments raised at oral arguments. However, it has authority to address issues that it has raised sua sponte.

4. The 1-year limitations period in K.S.A. 60-1507(f)(1) requires a 1-year grace period from the date the amendment became effective for all pre-existing claims.

5. The failure to challenge the K.S.A. 60-1507(f)(1) statute of limitations before the 1-year grace period runs does not extend a prisoner's rights by default.

The opinion of the court was delivered by: Rosen, J.

Affirmed.

Garnet Tolen appeals the dismissal of his K.S.A. 60-1507 motion for failing to file it within the 1-year statutory limit. Tolen was convicted of rape and aggravated criminal sodomy in February 1999. He filed a direct appeal to the Court of Appeals, and his convictions were affirmed. State v. Tolen, No. 84,058, unpublished opinion filed January 11, 2002. This court denied his petition for review on March 20, 2002, and the mandate was issued on March 22, 2002.

On January 18, 2005, Tolen filed a 60-1507 motion. Concluding that Tolen's motion had not been filed within the 1-year time limitation of K.S.A. 60-1507(f), the district court summarily denied it without a hearing or the appointment of counsel, Tolen appeals. We transferred the matter from the Court of Appeals on our own motion pursuant to K.S.A. 20-3018(c).

Analysis

Tolen asserts that K.S.A. 60-1507(f) is unconstitutional because it does not include language granting a grace period for pre-existing claims that were final before the 1-year time limitation became effective. We review the constitutionality of a statute as a question of law and apply a de novo standard of review. State v. Rupnick, 280 Kan. 720, 736, 125 P.3d 541 (2005). The constitutionality of a statute is presumed, and all doubts must be resolved in favor of the validity of the statute. Before the statute may be stricken, it must clearly appear to violate the constitution. This court must construe the statute as constitutionally valid if there is any reasonable way to do so. 280 Kan. at 736.

K.S.A. 60-1507 was amended effective July 1, 2003, to include the following provision:

"Time limitations. (1) Any action under this section must be brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (ii) the denial of a petition for writ of certiorari to the United States ...


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