Joshua D. Allison, Appellee,
State of Kansas, Appellant.
BY THE COURT
Whether jurisdiction exists is a question of law over which
an appellate court's scope of review is unlimited.
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.
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.
"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.
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.
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.
Standridge, P.J., Malone, J., and Stutzman, S.J.
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.
and Procedural Background
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 ...