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State v. Gomez

Court of Appeals of Kansas

September 19, 2014

STATE OF KANSAS, Appellee,
v.
ADOLFO GOMEZ, JR., Appellant

Editorial Note:

This decision has been designated as "not for publication" in the Pacific Reporter, it is published in table format. See KS R S AND ACTS RULE 7.04

Appeal from Douglas District Court; PAULA B. MARTIN, judge.

Adam D. Stoke, of Kansas Appellate Defender Office, for appellant.

Patrick J. Hurley, assistant county attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

BEFORE ATCHESON, P.J., HILL and ARNOLD-BURGER, JJ.

OPINION

MEMORANDUM OPINION

Per Curiam:

Adolfo Gomez entered pleas of no contest to two counts of abuse of a child and three counts of child endangerment. But before his sentencing, he sought to withdraw his pleas. He raises two issues in this appeal, Gomez claims the court erred in denying his motion to withdraw his pleas and argues the jury should decide his criminal history and not the judge. Before we can address these issues we must first determine what issues we have jurisdiction to review based on the notice of appeal filed by Gomez.

Gomez' notice of appeal states: " COMES NOW the Defendant and gives notice that he wishes to appeal the sentence imposed against him on the 19th day of June, 2013."

In State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012), our Supreme Court ruled there is a jurisdictional aspect to the notice of appeal:

" 'It is a fundamental proposition of Kansas appellate procedure that an appellate court obtains jurisdiction over the rulings identified in the notice of appeal." [Citations omitted.]'

But Coman went on to state that the words of the notice of appeal will not be stretched beyond their normal meanings:

" Although our appellate courts have, at times, liberally construed a notice of appeal to retain jurisdiction, one simply cannot construe a notice that appellant is appealing his or her sentence to mean that he or she ...

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