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State v. Gillen

April 18, 2008

STATE OF KANSAS, APPELLEE,
v.
LEANDER D. GILLEN, APPELLANT.



Appeal from Pottawatomie District Court; MICHEAL A. IRELAND, judge.

SYLLABUS BY THE COURT

1. The law in Kansas is clear that the right to an appeal and the procedure to be followed is strictly statutory in nature.

2. Interpreting statutes involves resolution of questions of law over which an appellate court has unlimited review.

3. The primary rule for statutory construction is that the intent of the legislature governs if that intent can be ascertained. We presume the legislature expressed its intent through the statutory language. Ordinary words are given their ordinary meanings without adding something that is not readily found in the statute or eliminating that which is readily found therein.

4. K.S.A. 22-3609a(1) provides that a defendant shall have the right to appeal any judgment of a district magistrate judge and the appeal shall stay all further proceedings upon the judgment appealed from. K.S.A. 22-3610(a) provides that when a case is appealed to the district court, the case shall be tried de novo in the district court. De novo review of convictions from the magistrate judge to the district court encompasses a new trial on the convictions appealed from and is not limited to evidence and arguments raised to the magistrate.

5. Kansas courts have repeatedly defined a criminal judgment as a pronouncement of guilt and the determination of the punishment. The difference in the wording relative to appealable judgments contained in K.S.A. 22-3609 (applicable to municipal court appeals) and K.S.A. 22-3609a (appeals from district magistrate) amounts to a distinction without a difference, as far as what judgments are appealable.

6. The prohibition in K.S.A. 22-3602(a) against appeals taken by a defendant from a judgment of conviction based upon a plea does not apply to pleas accepted by a district magistrate judge.

7. There is no express requirement in K.S.A. 22-3609a requiring a motion to withdraw a plea, nor will we read such a requirement into the statute.

8. K.S.A. 22-3210 is not the more specific statute in the situation where the case involves an appeal from a district magistrate judge, not the withdrawal of a plea.

9. The underlying fact in this case is that if a criminal defendant decides to appeal the judgment of a district magistrate judge, the right to appeal the judgment is unlimited pursuant to K.S.A. 22-3609a.

10. The district court erred in this case in determining that it had no jurisdiction when, in fact, it could properly consider defendant's appeal from a judgment of the district magistrate judge.

11. There is no requirement that a defendant be aggrieved before he or she can appeal the judgment of a district magistrate judge.

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

Reversed and remanded with directions.

Before MARQUARDT, P.J., MALONE, J., and BRAZIL, S.J.

Leander D. Gillen appeals a decision of the district court that it lacked jurisdiction to consider his appeal from a conviction before a district magistrate judge ...


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