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State of Kansas v. Roy Hannebohn

May 3, 2013

STATE OF KANSAS, APPELLEE,
v.
ROY HANNEBOHN, APPELLANT.



Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. 2. The filing of a timely notice of appeal is jurisdictional, and any appeal not taken within the statutory deadline must be dismissed. A limited exception to this general rule is recognized in those cases where an indigent defendant either (1) was not informed of the right to appeal, including the appeal filing deadline; (2) was not furnished an attorney to perfect an appeal; or (3) was furnished an attorney for that purpose who failed to perfect and complete an appeal. 3. Generally, an appellate court's jurisdiction is limited to a final judgment. To have a final judgment in a criminal case, the defendant must be convicted and sentenced. The defendant's sentence is not final if the district court has ordered restitution but no amount has been set.

4. Kansas district courts should follow the proper procedure when sentencing a criminal defendant in a felony case and ordering restitution to be determined at a later hearing. First, because the sentencing is not complete until the district court determines the amount of restitution, the district court should refrain from notifying the defendant of his or her deadline to file an appeal at the initial sentencing hearing. Next, the district court should hold the restitution hearing as soon as possible so that the defendant's sentence can become a final judgment. Because restitution is part of a defendant's sentence, the amount of restitution must be determined and imposed in open court in the defendant's presence, unless the defendant voluntarily waives his or her presence. Finally, at the completion of the restitution hearing, the district court should notify the defendant of his or her appeal rights, including the deadline for filing the appeal. 5. Under the facts of this case in which the defendant filed a motion to file an appeal out of time and the record reflects that the district court failed to notify the defendant of his statutory appeal rights at the completion of the restitution hearing, the district court should hold a hearing and make findings of fact and conclusions of law as to whether the defendant should be permitted to file an out-of-time appeal pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).

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

Reversed and remanded with directions.

Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.

Roy Hannebohn appeals the district court's denial of his motion to file an appeal out of time. Hannebohn was convicted of criminal threat following a guilty plea. At the initial sentencing hearing, the district court ordered restitution but left the amount to be determined at a later time. The district court also notified Hannebohn of his statutory appeal rights and the deadline for filing an appeal. At a subsequent hearing, the district court determined the amount of restitution but did not advise Hannebohn of his right to appeal. Hannebohn later filed a motion to file an appeal out of time, claiming that he mistakenly believed that his court-appointed attorney was pursuing an appeal. The district court denied the motion without hearing evidence on the ground that the court had informed Hannebohn of his appeal rights at the initial sentencing hearing. We conclude the district court erred by summarily denying Hannebohn's motion to file an appeal out of time, and we remand with directions for the district court to hold a hearing and make findings pursuant to State v. Ortiz, 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982).

FACTS

On July 9, 2010, the State charged Hannebohn with one count of aggravated assault and one count of criminal damage to property. Because Hannebohn was indigent, the district court appointed the public defender to represent him. On March 31, 2011, following plea negotiations, Hannebohn pled guilty to an amended charge of criminal threat. At the plea hearing, the district court accepted Hannebohn's plea and advised him of his right to appeal any sentence imposed.

The district court held a sentencing hearing on April 29, 2011. Pursuant to the plea agreement, the district court sentenced Hannebohn to 7 months' imprisonment and placed him on probation for 12 months. At the hearing, Hannebohn objected to the amount of restitution being requested by the victim. The district court ordered restitution but left the amount to be determined at a later time. The district court also informed Hannebohn of his right to appeal his sentence by filing a written notice of appeal within 14 days.

The district court held a restitution hearing on September 29, 2011. Both the crime victim and Hannebohn testified at the hearing. After hearing the evidence, the district court ordered restitution in the amount of $2,776.64. But at the conclusion of the hearing, the district court did not advise Hannebohn of his right to appeal.

Several months later, Hannebohn's court services officer informed Hannebohn's counsel that Hannebohn was under the impression that his case was on appeal. Based on this information, counsel followed up with Hannebohn and advised him that, in fact, his case was not on appeal. On February 2, 2012, Hannebohn's counsel filed a motion to file an appeal out of time. The motion stated there was no record at the restitution hearing that either the district court or defense counsel had advised Hannebohn of his right to appeal and that Hannebohn erroneously believed that his case was on appeal.

On February 3, 2012, the district court held a nonevidentiary hearing on the motion. At the hearing, Hannebohn's counsel advised the court that she thought she needed to withdraw in order to be a witness because based upon her notes there was no record that she advised Hannebohn of his right to appeal after the September 29, 2011, restitution hearing. Counsel also noted that the record of the restitution hearing reflected that the district court did not inform Hannebohn of his right to appeal. The district court found that because it had informed Hannebohn of his appeal rights at the plea hearing and at the initial sentencing hearing, the court was not required to inform Hannebohn of his appeal rights for a third time at the restitution hearing. The district court also found that it was unnecessary to determine whether Hannebohn's appeal deadline began to run ...


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