BY THE COURT
right to appeal is entirely statutory, and the limits of
appellate jurisdiction are imposed by the legislature.
determination of whether the Court of Appeals had
jurisdiction over an appeal rests on the interpretation of
statutes and involves a question of law over which the Kansas
Supreme Court, upon review of a Court of Appeals decision,
exercises unlimited review.
district court must have entered a final judgment before the
prosecution may bring a question-reserved appeal under K.S.A.
2015 Supp. 22-3602(b)(3).
Question-reserved appeals under K.S.A. 2015 Supp.
22-3602(b)(3) may proceed only where they seek a ruling on
questions of statewide interest that are important to the
correct and uniform administration of the criminal law and
the interpretation of statutes.
order granting postconviction DNA testing under K.S.A. 2015
Supp. 21-2512 occurs at the midpoint in the proceedings
required by the statute and is not a final judgment from
which the State may appeal on a question reserved under
K.S.A. 2015 Supp. 22-3602(b)(3).
State's question-reserved appeal from an interim order
allowing postconviction DNA testing may not be treated as a
premature appeal that may lie dormant until a final judgment
order allowing postconviction DNA testing cannot be
considered final for purposes of a question-reserved appeal
simply because a judgment of conviction and sentence has been
entered in the underlying criminal case.
Under the circumstances of this case, the State, having
invoked the appellate courts' jurisdiction over a
question reserved in a criminal case, as provided for in
K.S.A. 2015 Supp. 22-3602(b)(3), cannot expand its elected,
and repeatedly asserted, statutory basis for jurisdiction.
of the judgment of the Court of Appeals in 51 Kan.App.2d 742,
355 P.3d 694 (2015). Appeal from Johnson District Court;
Kevin P. Moriarty, judge. Judgment of the Court of Appeals
dismissing the appeal is affirmed. Appeal dismissed.
J. Obermeier, assistant district attorney, argued the cause,
and Stephen M. Howe, district attorney, and Derek Schmidt,
attorney general, were with him on the briefs for appellant.
Richard Ney, of Ney & Adams, of Wichita, argued the cause
and was on the briefs for appellee.
appeal, we are presented with a novel question: May the State
use K.S.A. 2015 Supp. 22-3602(b)(3), which allows the
prosecution to take a criminal appeal "upon a question
reserved, " after a district court grants postconviction
DNA testing under K.S.A. 2015 Supp. 21-2512 but before the
testing is conducted and thus before any posttesting court
proceedings have been completed? The Court of Appeals
concluded the State could not bring such a "question
reserved" appeal because there had been no final order
in the case. Specifically, at the time the State tried to
bring its appeal the district court had only entered an order
granting DNA testing-which, under the testing statute, was
merely a midpoint in the statutory proceedings. The Court of
Appeals further concluded the State's inability to meet
the requirements for a question-reserved appeal meant the
Court of Appeals lacked jurisdiction. See State v.
LaPointe, 51 Kan.App.2d 742, 355 P.3d 694 (2015).
petition for review, the State asks us to reverse the Court
of Appeals and determine that it may take an appeal from an
order granting postconviction DNA testing. But the State
fails to persuade us that a final order had been entered, and
we hold that the Court of Appeals lacked jurisdiction over
the State's appeal in this case and that the appeal was
and Procedural History
question before us rests on the procedural history of the
case, not the underlying facts of the crime. For our
purposes, it is enough to know that a jury convicted LaPointe
of aggravated robbery and aggravated assault. LaPointe's
criminal history scored as a category A on the Kansas
sentencing guidelines grid, and the district court sentenced
him to a total of 245 months' imprisonment to run
consecutive to sentences imposed in other state and federal
cases. On direct appeal, the Court of Appeals affirmed
LaPointe's convictions and sentences. State v.
LaPointe, No. 93, 709, 2006 WL 2936496 (Kan. App. 2006)
(unpublished opinion), rev. denied 283 Kan. 932
7 years later, LaPointe filed, in his underlying criminal
case, a request for postconviction DNA testing pursuant to
K.S.A. 2015 Supp. 21-2512(a). LaPointe acknowledged that the
statute was written to apply only to criminal defendants
convicted of first-degree murder or rape and that he had not
been convicted of those crimes. He argued, however, that the
statute should be extended to cover him because his
controlling term of 245 months' imprisonment (more than
20 years) equaled or exceeded the terms for first-degree
murder or rape and therefore caused him to be similarly
situated to someone who had been convicted of those crimes.
Citing State v. Cheeks, 298 Kan. 1, 6-14, 310 P.3d
346 (2013), LaPointe argued there was no rational basis to
treat his offenses and resulting sentences differently from
first-degree murder or rape and, as a result, the
postconviction DNA testing statute violated the Equal
Protection Clause of the United States Constitution.
district court agreed, over the State's objections. The
State then appealed from the district court's order, and
in its notice of appeal stated: "This appeal is taken to
the Court of Appeals of the State of Kansas upon a question
reserved pursuant to K.S.A. 22-3602(b)(3), K.S.A. 60-2101(a)
and K.S.A. 60-2102(a)(2)." Through the question-reserved
appeal, the State argued the district court erred in
extending the postconviction DNA testing statute to a