Review of the judgment of the Court of Appeals from an order filed July 27, 2011, dismissing the appeal for lack of jurisdiction.
Appeal from Ellis District Court; Edward E. Bouker, judge.
BY THE COURT
A defendant charged with felony driving under the influence (DUI) under K.S.A. 2007 Supp. 8-1567 may challenge before the district court the validity of a prior misdemeanor DUI used to classify the severity level of the current charge or to enhance the sentence following conviction on the current charge. However, if the defendant pleads guilty or no contest to the felony, the defendant will be limited on appeal to arguing the impropriety of the prior misdemeanor's effect as a sentencing enhancement. Under K.S.A. 22-3602(a), there is no appellate jurisdiction for a direct appeal of a felony conviction after a guilty or no contest plea.
Michael S. Holland, II, of Holland and Holland, of Russell, argued the cause and was on the brief for appellant.
Natalie A. Chalmers, assistant solicitor general, argued the cause, and David J. Basgall, assistant county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Defendant Sean Aaron Key was charged with driving under the influence of alcohol, a nonperson felony because of his two previous misdemeanor convictions for the same offense. During the felony proceeding, Key challenged the State's reliance on one of his misdemeanor convictions, claiming his attorney in that case had filed a guilty plea without consulting him. The district court judge was unwilling to entertain what he saw as an impermissible collateral attack on the prior conviction. Key entered a guilty or no contest plea to the felony charge.
At sentencing Key again objected to the State's reliance on the earlier misdemeanor conviction, but the district judge overruled [298 Kan. 316] the objection and sentenced Key to the penalty for a felony conviction.
Key appealed. The Court of Appeals issued an order in which it determined that, absent a motion to withdraw plea, it lacked jurisdiction to hear Key's appeal under K.S.A. 22-3602(a). Key filed a petition for review by this court, which we granted.
Factual and Procedural Background
In August 2007, Kansas Highway Patrol Trooper Doug Schulte stopped Key after the vehicle Key was driving swerved over the fog line multiple times. Once Schulte reached the vehicle, he smelled alcohol and noticed that Key's eyes were glassy. Key failed several field sobriety tests and a preliminary breath test. Key was arrested for driving under the influence.
Because Key had two prior convictions for driving under the influence of alcohol, the State charged Key with a nonperson felony instead of a misdemeanor. The version ...