Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge.
1. An action under K.S.A. 60-1507 is civil in nature and is governed by the rules of civil procedure. To begin this action a prisoner must file a pleading referred to as a motion.
2. The rules of civil procedure provide that a civil action is commenced at the time of the filing of a petition or motion with the clerk of the court.
3. A motion challenging the validity of a sentence is an independent civil action which should be separately docketed, and the procedure before the trial court is governed by the rules of civil procedure. Rule 183(a) (2007 Kan. Ct. R. Annot. 243).
4. A motion relates to some question collateral to the main object of the action and is connected with, and dependent on, the principal remedy.
5. Under the facts of this case, where an inmate filed a motion in his criminal case for an extension of time to file a K.S.A. 60-1507 motion, which was granted, and a second motion, which was denied, the district court had no jurisdiction to grant or deny such relief because the motion had nothing to do with the criminal cause of action.
The opinion of the court was delivered by: Hill, J.
Before HILL, P.J., GREEN and STANDRIDGE, JJ.
Darren R. Hickson appeals an order in his criminal case denying him extra time to file a collateral attack against his conviction. In Kansas, a prisoner in custody, like Hickson, under sentence of a court of general jurisdiction, claiming the right to be released, must file a new civil action, commonly called a K.S.A. 60-1507 motion, to make such an attack. A defendant must bring this action within 1 year of 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. Because Hickson has not filed a civil case, and the district court had no jurisdiction to grant an extension of time to file a civil action in the criminal case, we dismiss this appeal.
Case history shows criminal case was finished.
Hickson was convicted in Sedgwick County District Court case 02CR2238 of rape and aggravated burglary in May 2003. This court affirmed Hickson's convictions in his direct appeal. State v. Hickson, No. 91,071, unpublished opinion filed January 14, 2005, rev. denied 279 Kan. 1008. The Supreme Court denied his petition for review on May 3, 2005.
Then on January 30, 2006, Hickson filed a motion in his criminal case, 02CR2238, asking for an extension of time until February 18, 2006, to get a transcript and "prepare petitioner 60-1507." On the same date, Hickson filed a "Request for Transcript" of a January 14, 2006, hearing. The district court granted the motion for extension, stating that "Defendant is granted a 30 day extension from 2-1-06 until 3-3-06 to file his 60-1507 petition."
After that, on March 30, 2006, Hickson sent the judge a letter stating that he had still not received his requested transcripts, even though the court "sustained my motions." Hickson also stated in the letter that an "actual motion for extension" accompanied it, because "I erred on the date on my previous motion my year is up May 3, 06 so please extend it to June 3, 06." Therefore, on April 13, 2006, Hickson filed a second motion for extension of time in case ...