BY THE COURT
Whether a K.S.A. 22-3501 motion for new trial is timely is a
question of law over which an appellate court exercises
an appellate court's decision and mandate is fully
determinative of the issues presented in the proceedings
below, they become a part of the judgment of the case without
further order of the trial court.
from Sedgwick District Court; John J. Kisner, Jr., judge.
F.A. Maughan, of Maughan Law Group LC, of Wichita, was on the
brief for appellant.
J. Gillett, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
E. Phillips challenges the district court's denial of his
motion for a new trial as untimely. The issue presented asks:
for purposes of the timeliness of a K.S.A. 22-3501 motion for
new trial based on newly discovered evidence, when is a
conclude the district court correctly held the two-year
period in which the motion must be filed began from the date
the Supreme Court mandate was issued, i.e., when the judgment
became final. Because Phillips' motion was not filed
during this time, we affirm the district court.
and Procedural History
convicted Phillips of first-degree felony murder, two counts
of attempted aggravated robbery, and criminal possession of a
firearm. He was sentenced to life in prison, with a mandatory
minimum of 20 years and lifetime postrelease supervision for
felony murder; a consecutive 47 months for one attempted
aggravated robbery conviction; a consecutive 34 months on the
other attempted aggravated robbery conviction; and a
concurrent 9 months for criminal possession of a firearm.
Phillips appealed his conviction, resulting in our upholding
all four counts and the term of imprisonment. State v.
Phillips, 295 Kan. 929, 287 P.3d 245 (2012).
did make one change to Phillips' sentence.
Phillips, 295 Kan. at 950. The district court had
ordered postrelease supervision for life. We vacated that
part of his sentence, holding a "sentencing court has no
authority to order a term of postrelease supervision in
conjunction with an off-grid indeterminate life
sentence." Phillips, 295 Kan. at 950. We did
not include an order of remand in our opinion. The Clerk of
the Supreme Court issued a mandate on February 11, 2013,
notifying the district court that the Supreme Court had
affirmed its judgment, except for vacating the postrelease
later filed a K.S.A. 60-1507 motion to vacate, amend, or set
aside the judgment. The motion was summarily denied at the
district court level.
the February 11, 2013 mandate contained no order of remand,
the last paragraph read, "You are therefore commanded,
[t]hat without delay you cause execution to be had of the
judgment of the Supreme Court, according to law."
Apparently acting on this language, the district court held a
hearing on August 15, 2014, to discuss the mandate, stating
it "appears that the Court has remanded this case back
to this [c]ourt . . . ...