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Allison v. State

Court of Appeals of Kansas

November 2, 2018

Joshua D. Allison, Appellee,
v.
State of Kansas, Appellant.

         SYLLABUS BY THE COURT

         1. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited.

         2. The right to appeal is entirely statutory, and the limits of appellate jurisdiction are imposed by the Legislature. Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute; the appellate courts do not have discretionary power to entertain appeals from all district court orders.

         3. K.S.A. 2017 Supp. 60-2102(a)(4) provides for an appeal to the Kansas Court of Appeals as a matter of right from a final decision in any action, except in an action where a direct appeal to the Supreme Court is required by law.

         4. A "final decision" generally disposes of the entire merits of a case and leaves no further questions or possibilities for future directions or actions by the lower court. The term "final decision" is self-defining and refers to an order that definitely terminates a right or liability involved in an action or that grants or refuses a remedy as a terminal act in the case.

         5. Under the facts of this case, the district court's order granting the petitioner a new hearing on his K.S.A. 60-1507 motion was not a final decision in the civil proceeding subject to appeal by the State.

          Appeal from Montgomery District Court; F. William Cullins, judge.

          Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for appellant.

          Kristen B. Patty, of Wichita, for appellee.

          Before Standridge, P.J., Malone, J., and Stutzman, S.J.

          MALONE, J.

         This appeal began when Joshua D. Allison appealed the district court's order denying his K.S.A. 60-1507 motion alleging ineffective assistance of counsel at his criminal trial. In the process of the appeal, this court remanded for an evidentiary hearing pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), for examination of Allison's claim that the counsel appointed to represent him in district court in the K.S.A. 60-1507 proceeding was ineffective. On remand, the district court found that Allison's K.S.A. 60-1507 counsel had provided deficient representation, and the court ordered a new hearing on Allison's original K.S.A. 60-1507 motion. The State seeks to appeal from that ruling, presenting to us a jurisdictional issue of first impression in Kansas. For the reasons stated below, we find that this court lacks jurisdiction over the issue raised by the State in this appeal, so we dismiss the appeal without prejudice until we have a final decision from the district court in the K.S.A. 60-1507 proceeding.

         Factual and Procedural Background

         We will review the complex factual and procedural background presented in this appeal. In 2012, a jury found Allison guilty of two counts of aggravated robbery and two counts of driving while suspended, and the district court sentenced him to a controlling term of 274 months' imprisonment. Allison filed a direct appeal, and this court affirmed his convictions on November 8, 2013. State v. Allison, No. 108, 340, 2013 WL 5976066 (Kan. App. 2013) (unpublished opinion). Notably, Allison tried to bring an ineffective assistance of trial counsel claim in his direct criminal appeal, but ...


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