Petition for Writ of Certiorari — Ransom v. Kansas

Od ~idlep — FILED

APR 19 J984

ALEXANDER L. STEVAS,

CLERK

NO. eeee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

PETER H. RANSOM,

Petitioner,

vs.

STATE OF KANSAS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE KANSAS SUPREME COURT

ROGER D. THOMPSON

BENGTSON, WATERS, THOMPSON

AND BARRY, CHARTERED

1206 West 8th Street

Junction City, Kansas 66441

(913) 762-2901

Attorneys for Petitioner,

Peter H. Ransom

JU pp

QUESTIONS PRESENTED

1. Were Peter H. Ransom's Constitutional

Rights to a speedy trial violated by the State

of Kansas?

2. Were Peter H. Ransom's Constitutional

Rights concerning double jeopardy, due process

and equal protection under the law violated by

the rehearing of this case by the Kansas

Supreme Court?

ii

TABLE OF CONTENTS

Questions Preeseneee ..« s « « 2% BCe ew Soe

Opinions Below. .. +s 4 é¢ « #6 « 5 s s s°s &

Jurie@ictiam. « « «6 «54 « Ss eee eee

Constitutional and Statutory Provisions ,

Involved. « + + + #0e4e 4 6 S818 °os eS © =o

Statement of the Case .<«s«s« «646s» «se

Reasons for Granting Review ....... .ll

I.

Were Peter H. Ransom's Constitutional

Rights to a Speedy Trial Violated

by the State of Kansas?. ........ itl

il.

Were Peter A. Ransom's Constitutional

Rights Concerning Double Jeopardy,

Due Process and Equal Protection

Under the Law Violated by the

Rehearing of this Case by the

Kansas Supreme Court? ......«.e«.e IL?

Concivuesion «<< =o ‘el a> ee eee

iii

INDEX TO APPENDICES

Appendix A. Kansas Supreme Court

Decision, March 31, 1983 ........el

Appendix B. Order of Rehearing

Rg 4 6 Ses ewe ee 0S

Appendix C. Kansas Supreme Court

Decision, December 2, 1983 a ae oe oe ee

Appendix D. Order Denying Rehearing

January 20, 1984 .... +. ++. « « «© « «23

Appendix E. Mumems BeeeseO2 « « + « s ww 0b

Appendix F. Picture of New Justice

and Kansas Attorney General ..... . .26

iv

TABLE OF AUTHORITIES CITED

Cases

Barker v. Wingo, 407 U.S. 514 (1972). .

Chevron Oil Co. v. Huson, 404 U.S. 97

esc bs 6.4 Ss 8 OR Ow aoe

Dickey v. Florida, 398 U.S. 374 (1970).

Kadans v. Collins, 404 U.S. 1244 (1971)

Klopfer v. North Carolina, 386 U.S. 213

Penis eS 6 6 6 ble 6 6 se ee Oe eS

People v. Kurtz, 6 N.Y. St. 394, 43 Hun

OFF 4 4 4 8 6 68% & 6% Os Oe eee

Smith v. Hooey, 393 U.S. 374 (1969) ..

State v. Cuezze, 225 Kan. 274, 589 P.2d

yb: : ee ee ee ee ee ae

State v. Fink, 217 Kan. 671, 538 P.2d

(ee 2. ) Pe es ee al en ee

State v. Hunt, 8 Kan. App.2d 162, 651 P.

Par) Cee & 63 OS Se eee ee ae

State v. Otero, 210 Kan. 530, 502 P.2d

pie SS >) eee ee ee ee ee

State v. Ransom, 233 Kan. 185, 661

ee me: as ee ee ee ee

State v. Warren, 224 Kan. 454, 58 P.2d

ASa@ (REIOP + 6 5 8 4 eee we ee

Strunk v. United States, 412 U.S. 434

(20002 s. 4 we 8 ee ea ees

Constitutions

United States Constitution,

Pifth Amendment... . +. « «- « « « 3d,

United States Constitution,

Sixth Amen@ment. . <«:-« 2+ +s see dy

United States Constitution,

Fourteenth Amendment ...... . 3,

Kansas Constitution, Bill of Rights,

BOUEtee BO. 1 ss 8 4 le ey ee

Statutes

Kansas Statutes Annotated

rr 22-3402 ce 2 . ° e e . e. . e

Other Authorities

5 AmJur 2d, Appeal & Error, 8 989.

24A C.J.S., Criminal Law S 21830. ..

17

11

11

12

13

18

19

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

PETER H. RANSOM,

Petitioner,

vs.

STATE OF KANSAS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE KANSAS SUPREME COURT

Petitioner, Peter H. Ransom respectfully

prays that a Writ of Certiorari issue to review

the judgments and opinions of the Supreme Court

of Kansas, entered in this proceeding on March

31, 1983, rehearing upon State of Kansas'

request on December 2, 1983 and denial of

petitioner's request for rehearing on January

20, 1984.

—

OPINIONS BELOW

Copies of the Opinions and Judgments of

the Court entered on March 31, 1983, May 6

1983, December 2, 1983 and January 20, 1984

are reproduced and attached to this petition

in the Appendix.

JURISDICTION

The Judgments of the Kansas Supreme Court,

entered on December 2, 1983 and its denial of

rehearing on January 20, 1984, violated the

Constitutional Rights of Peter H. Ransom under

the 5th, 6th and 14th Amendments to the United

States Constitution concerning his rights to

a speedy trial, his rights of due process and

equal protection under the law. A Petition for

a Writ of Certiorari has been timely filed.

antes

CONSTITUTIONAL PROVISIONS INVOLVED

or United States Constitution:

Fifth Amendment (in relevant part):

"No person shall be. . .subject for

the same offense to be twice put in

jeopardy of life or limb. . .deprived

of life, liberty or property, without

due process of law. . ."

Sixth Amendment (in relevant part):

"In all criminal prosecutions, the

accused shall enjoy the right to

a speedy and public trial..."

Fourteenth Amendment (in relevant part):

"No state shall. . . deprive any per-

son of life, liberty or property, with-

out due process of law; nor deny to

any person within its jurisdiction

the equal protection of the laws."

Kansas Constitution

Section Ten-Bill of Rights (in relevant

part):

"In all prosecutions, the accused shall

be allowed...a speedy public trial

by an impartial jury...

— a

STATEMENT OF THE CASE

Peter H. Ransom was charged with four

felony criminal counts in the District Court of

Geary County, Kansas on July 3, 1981. Ransom

was arrested on July 15, 1981 and confined in

Geary County jail. Ransom was arraigned on

August 13, 1981. Ransom was confined in jail

until his release on a $100,000 bond on Septem-

ber 10, 1981.

The third request for continuance in the

trial of Ransom by the State of Kansas was

denied by Judge William D. Clement of the Geary

County District Court on March 5, 1982. The

State of Kansas chose to dismiss all criminal

charges without prejudice against Peter H. Ran-

som. Judge Clement cautioned the State of Kan-

sas concerning the possible violation of Ran-

som's right to a speedy trial. Kansas has a

statute that prescribes that criminals be

brought to trial within 90 days after arraign-

ment if confined in jail and 180 days if

released on bond.

oe Paes

The identical four criminal charges were

retyped on the day they were dismissed by the

State of Kansas but were refiled against Ransom

on March 9, 1982. Ransom was again arrested

and required to post a new bond for his release.

Ransom was arraigned in this second case on

March 31, 1982. After a second continuance of

the second case was obtained by the State of

Kansas, Ransom filed a motion for discharge

based upon the violation of his constitutional

rights concerning a speedy trial and the Kansas

law concerning the codification of his speedy

trial rights within 180 days of his arraign-

ment in the first case.

Judge William D. Clement granted Ransom's

motion for discharge on June 7, 1982 because

of the failure of the State of Kansas to com-

ply with the requirements of a speedy trial.

Judge Clement found that the State of Kansas

was merely accomodating witnesses and was not

prepared for trial of Ransom. Judge Clement

cited the fact that on June 7, 1982, the date

—

of discharge of all criminal charges against

Ransom, the State still had motions pending for

endorsement of witnesses and a request for a

Jackson-Denno hearing concerning an alleged

admission against interest that Ransom had

made to Deputy Sheriff Larry Wells some eleven

months ago. Judge Clement ruled that under

Kansas statutes and case law, Ransom was en-

titled to discharge of all criminal charges

because of the violation of his rights to a

speedy trial.

The State of Kansas appealed the dismissal

of all charges to the Kansas Supreme Court on

June 14, 1982. The Kansas Supreme Court heard

the appeal on January 14, 1983 and rendered its

decision on March 31, 1983, affirming the deci-

sion of the trial court. The decision was 4

justices to 3 justices dissenting. Chief Jus-

tice Alfred G. Schroeder wrote the majority

opinion and was joined by Justices David Prager,

Richard W. Holmes and Justice Pro Tem Floyd H.

Coffman (who was sitting temporarily in place

of Alex M. Fromme who had died on October 25,

a,

1982). Dissenting Justices were: Kay McFar-

land, Harold S. Herd and Robert H. Miller.

The Kansas Supreme Court, in its majority

opinion declared that the Kansas Statute,

K.S.A. 22-3402 was passed to implement the con-

stitutional guaranty of a speedy trial and all

criminal charges must remain dismissed.

It should be noted that Justice Tyler C.

Lockett, a personai friend of Kansas Attorney

General Robert T. Stephen, was appointed to

replace the late Alex M. Fromme. Justice

Lockett took the Supreme Court Bench on Febru-

ary 11, 1983, which was before the written

opinion of March 31, 1983 was filed in Ransom.

A motion for rehearing was filed by the

State of Kansas and was granted by the new

panel of Kansas Supreme Court Justices on May

6, 1983. Justice Pro-Tem Coffman did not act

upon the request for rehearing, hear the argu-

ments of the rehearing nor participate in ren-

dering the second opinion.

The Ransom case was reheard on September

a

14, 1983 by the new panel of Supreme Court

Justices. Ransom objected to Justice Tyler

C. Lockett's participation in the rehearing

but was told that he was to sit on the case so

the new Supreme Court could decide the question

concerning the right to speedy trial in Kansas.

Justice Pro Tem Coffman, who had voted with

the majority in favor of Ransom's constitu-

tional rights to speedy trial was not allowed

to participate in the rehearing. On December

2, 1983, the new panel of the Kansas Supreme

Court reversed its prior decision in the Ransom

case, dated March 31, 1983. The decision was

a 4 justices-3 justices opinion with new Jus-

tice Tyler C. Lockett writing a concurring

opinion with the three previous dissenting

Justices. Not one of the six Justices who had

heard the original appeal changed their vote.

Only by dropping Justice Pro Tem Coffman did

the Kansas Supreme Court change its ruling

against Peter H. Ransom. Chief Justice Alfred

G. Schroeder and Justices David Prager and

Richard W. Holmes declared after the rehearing

ieee

that it was more obvious that the State of

Kansas had not afforded Peter H. Ransom a

speedy trial as required by law. The dissenting

Justices pointed out that the State was not

ready, did not invoke its powers of subpoena

of witnesses and showed no reason for delay of

the trial of Peter H. Ransom.

Ransom filed a motion for rehearing of the

December 2, 1983 decision and again objected

to Justice Lockett's participation in the case.

It was contended to be an improper rehearing

and deprived Ransom of due process, equal pro-

tection and was placed in double jeopardy in

violating his constitutional rights. The Kan-

sas Supreme Court denied Ransom's request for

rehearing on January 20, 1984 and filed its

mandate reversing the Geary County District

Court on January 26, 1984. Peter Ransom was

then arrested on a new warrant on February 29,

1984 and appeared before Associate District

Judge Melvin M. Gradert who had now been

assigned to preside in the case. Public Defen-

— |

der Ralph DeZago was appointed on February 29,

1984 but Roger D. Thompson was retained on

March 7, 1984 to represent Peter Ransom in the

United States Supreme Court. A stay of pro-

ceedings in Geary County District Court was

granted on March 22, 1984 until the determina-

tion of this matter by the United States Supreme

Court. A Petition for A Writ of Certiorari

has been filed on behalf of Ransom.

— 2

REASONS FOR GRANTING REVIEW

I. WERE PETER H. RANSOM'S CONSTITUITIONAL

RIGHTS TO A SPEEDY TRIAL VIOLATED BY THE

STATE OF KANSAS?

The fundamental constitutional right toa

speedy trial is guaranteed in all individual

states by the 6th and 14th Amendments to the

United States Constituion. The State of Kan-

sas has long recognized the importance of this

right to speedy trial. The case of Klopfer v.

North Carolina, 386 U.S. 213 (1967) has been

cited by the Kansas Supreme Court as the lead-

ing case in the preservation of "one of the

most basic rights preserved by our United States

Constitution, that of a right to speedy trial"

by the use of the Fourteenth Amendment to our

Constitution. See State v. Otero, 210 Kan.

530, 502 P.2d 763 (1972). The Otero decision

further declared at page 531:

"The concept of a speedy trial is

threaded throughout this nation's

entire history. It has been given

expression not only in the Sixth

Amendment to the Constitution of the

United States, but in g§ 10 of the

— ;

Bill of Rights of the Kansas Con-

stitution, as well. No constitutional

precept is more inviolable, no right

of an accused more precious, than

that one who is accused of crime be

tried promptly and with due dispatch."

The Otero decision in Kansas further acknowl-

edged the balancing tests of the United States

Supreme Court as set forth in Barker v. Wingo,

407 U.S. 514 (1972) and recognized Justice

Brenner's opinion as to prejudice to a criminal

defendant by the passage of time which causes

memories to fade, burdens of anxiety to increase

and evidence lost. See Dickey v. Florida, 398

U.S. 374 (1970).

The State of Kansas has shown its legisla-

tive intent to protect this constitutionally

guaranteed right to a speedy trial by ensuring

that a defendant be brought to trial within

a specified time. (See K.S.A. 22-3402 set

forth in the Appendix). The law cf Kansas has

codified this right to speedy trial under the

Constitution to be 90 days after arraignment if

in confinement or 180 days after arraignment

if on bond. See State v. Hunt, 8 Kan.App.2d

ee a ee

=)

162, 167, 651 P.2d 967 (1982). The burden to

bring a defendant to a speedy trial rests solely

on the State and not on the accused. See

State v. Warren, 224 Kan. 454, 580 P.2d 1336

(1978).

Prosecution's ploy in the dismissal and

refiling of criminal cases has surfaced in

Kansas and is present in Geary County, Kansas.

Several cases have gone to the Kansas

Appellate Courts on such procedures. It is

evident in the Ransom case as almost a year

goes by without his being brought to trial.

See Kansas cases, State v. Fink, 217 Kan. 671,

538 P.2d 1390(1975); State v. Cuezze, 225 Kan.

274, 589 P.2d 626(1979); State v. Hunt, 8 Kan.

App.2d 162, 651 P.2d 967(1982); and State v.

Ransom, 233 Kan. 185, 661 P.2d 392(1983), which

show the use of dismissing and refiling criminal

cases to the dismay of the accused in Kansas.

This constitutional guarantee to a speedy trial

does not allow ploying with a person's liberty

or freedom in criminal cases. The United

| on

States Supreme Court must uphold their freedom

and follow the reasoning as set forth in the

first Ransom Decision in 233 Kan. 185 (1983).

The case of Strunk v. United States, 412 U.S.

434(1973) shows that dismissal of all charges

is the only remedy for protection of an

accused's right to speedy trial. The Court

must recognize a person's right to be free

from accusations of crime and the prejudice

which affects a person when charges continue

to he filed and refiled against them. New

arrests, confinements, new bonds, more bond and

legal expenses, public ridicule and notoriety

by the news media, burdens of anxiety and

depression are all part of the tribulations of

the accused. We must remember the three basic

demands of criminal justice in our Anglo-

American legal system are: 1) to prevent undue

and oppressive incarceration prior to trial;

2) to minimize anxiety and concern accompanying

public accusation and 3) to limit the possi-

bilities that long delay will impair the ability

—: a

of an accused to defend himself. See Smith v.

Hooey, 393 U.S. 374, 377-373(1969).

Peter Ransom has been subjected all these

oppressive factors and he should be released

from all criminal charges. Almost three years

have now passed and Peter Ransom has not been

brought to trial. His ability to defend himself

has been greatly impaired, witnesses have dis-

appeared and great expenses have been incurred

by him and his family. Such statutes codifying

the constitutional guarantees of speedy trial

must be strictly enforced against the States

in order to protect the United States Constitu-

tional Guarantees afforded to all its citizens.

Conflicting State Appellate decisions have sur-

faced in the interpretation of such statutory

provisions and it is impossible to comprehend

one's constitutional rights to a speedy trial.

A myriad of questions have arisen as to their

application and computation. Can the prosecu-

tion circumvent the right to a speedy trial by

filing, dismissing and refiling the same

|

Criminal charges, without limitations, as to

time or circumstance? This Court should grant

certiorari to assure that the right to speedy

trial has been protected and to provide uniform

guidelines for the application in the use of

codificiation statutes pertaining to the con-

stitutional guarantee of a speedy trial.

Po pe

II. WERE PETER H. RANSOM'S CONSTITUTIONAL

RIGHTS CONCERNING DOUBLE JEOPARDY, DUE

PROCESS AND EQUAL PROTECTION UNDER THE

LAW VIOLATED BY THE REHEARING OF THIS

CASE BY THE KANSAS SUPREME COURT?

Peter H. Ransom contends that his consti-

tutional rights were clearly violated by the

Kansas Supreme Court in granting a rehearing

of the State's appeal of his case after the

Kansas Supreme Court has affirmed the dis-

missal of all criminal charges against him.

A valid decision had been rendered on March

31, 1983. See State v. Ransom, 233 Kan. 185,

661 P.2d 392(1983). His rights to due process

of law and equal protection under the law

were infringed by the rehearing and the

change of Supreme Court personnel. Constitu-

tional safeguards must be applied to the

process of rehearing cases, expecially in

criminal cases. Principles of justice and

fair play must extend to the accused.

A lack of judicial precedent appears

—"

in this area. The only reason stated for the

rehearing by Kansas Supreme Court was the

replacement of Justice Alex M. Fromme by Jus-

tice Tyler C. Lockett. No error was corrected

nor did any justice change his opinion in

regard to the Ransom case. The concurring

Opinion of the new Justice Lockett leaves one

confused as to what he proposes and with what

side he votes. Justice Lockett states that

the trial judge alone has the choice of setting

a criminal case for trial but fails to recog-

nize that the State of Kansas has continued to

seek delays of the trial setting. Justice

Lockett further fails to mention Judge William

D. Clement had already determined that the

State of Kansas was not prepared for trial and

was merely accomodating personal whims of

witnesses in requested continuances.

Mere change in members of the Kansas

Supreme Court is not sufficient reason for a

rehearing to be granted. See 5 AmJur 2d,

Appeal and Error, 8 989 at page 415, which

a)

declares: "generally a rehearing will not be

ordered merely on the ground that a change of

members of the bench has either taken place or

is about to occur." People v. Kurtz, 6 N.Y.

St. 394, 43 Hun 637, has held that an accused

can not be deprived of the benefit of the

decision of the judge who first passed on his

appeal and a rehearing will not be granted to

the prosecution after the personnel of the

appeals court has changed. See also 24A C.J.S.

Criminal Law 8 1830, at page 505. This is

exactly the case in point of Peter H. Ransom.

Ransom has been singled out because of the

change in court personnel and new rules

applied to him retroactively. Such is not

favored in the law. See Chevron Oil v. Huson,

404 U.S. 97 (1971).

The United States Supreme Court has de-

cided that mistake and error must be clearly

evident and strong in order for a case to be

reversed. The United States Supreme Court

requires that one member of the majority or

-=20<--

concurring opinion must change their vote in

order for a rehearing to be granted. Ransom

contends that his constitutional rights of

equal protection and due process require the

same. See Kadans v. Collins, 404 U.S. 1244

(1971); rehearings are not favored by the

United States Supreme Court and this decision

should be reviewed to determine if Ransom was

afforded his constitutional rights.

CONCLUSION

For the reasons set forth in this petition,

a writ of certiorari should issue to review

the judgments and opinions of the Kansas

Supreme Court concerning Peter H. Ransom.

Respectfully submitted,

ROGER LD. THOMPSON

BENGTSON, WATERS, THOMPSON

AND BARRY, CHARTERED

1206 West 8th Street

Junction City, Kansas 66441

(913) 762-2901

Attorneys for Petitioner,

Peter H. Ransom

APPENDIX A

VoL. 233 JANUARY TERM, 1983 185

State v. Ransom

No. 54,636

STATE OF Kansas, Appellant, v. PETER H. Ransom, Appellee.

SYLLABUS BY THE COURT

CRIMINAL LAW—Speedy Trial Requirements—Dismissal of Charges by

State's Own Motion and Refiling of Information—Calculation of Time.

Where the dismissal of criminal charges results from the State’s own motion

and is not accompanied by a showing of necessity, and a new information is

filed charging the same offease when calculating the speedy trial time

requirement of K.S.A. 22-3402 » court must include the time elapsed between

arraignment and dismissal of the first prosecution together with the time

elapsed between arraignment and trial of the second prosecution.

Appeal from Geary district court; WILLIAM D. CLEMENT, judge. Opinion filed

March 31, 1983. Affirmed.

David R. Platt, assistant county attorney, argued the cause, and Steven L.

Opat, county attorney, and Robert T. Stephan, attorney general, were with him

on the brief for the appellant.

Charles A. Chartier, of Junction City, argued the cause and was on the brief for

the appellee.

The opinion of the court was delivered by

SCHROEDER, C.J.: This is an appeal by the State pursuant to

K.S.A. 22-3602(b)(1) from an order dismissing an information

charging Peter H. Ransom (defendant-appellee) with rape

(K.S.A. 21-3502), aggravated battery (K.S.A. 21-3414) and aggra-

vated robbery (K.S.A. 21-3427). At issue is the computation of

time for purposes of the appellee’s statutory right to speedy trial

under K.S.A. 22-3402.

On July 3, 1981, the victim, Ms. B., was attacked, severely

beaten, and brutally raped in rural Geary County, Kansas.

Twelve days later, on July 15, 1981, the defendant was arrested

and charged in district court in case number 81 CR 399 with

aggravated kidnapping, rape, aggravated battery and aggravated

robbery. Counsel was appointed to represent the defendant at

his first appearance on July 17, 1981. Ultimately the defendant

retained his own counsel who has represented him throughou.

these proceedings.

A preliminary hearing was held on August 6, 1981, and the

appellee was bound over to stand trial. A week later, on August

13, 1981, the defendant was arraigned and pled not guilty. The

defendant remained in confinement until September 10, 1981, at

which time he was able to post bond. Trial was set for November

5, 1981. On October 27, 1981, the defendant obtained a continu-

186 SUPREME COURT OF KANSAS

State v. Ransom

ance tc December 3, 1981. On November 30, 1981, the State

obtained a continuance to January 18, 1982. On January 14, 1982,

the matter was continued by agreement of counsel to March 11,

1982. These continuances were obtained because of difficulties

in obtaining essential witnesses.

On March 4, 1982, the State moved for a further continuance,

citing difficulty in obtaining two essential witnesses. Both wit-

nesses were doctors who were vital to the chain of forensic

evidence in the case, one of whom had conducted the initial

examination of the victim and obtained evidence for the “rape

kit.” Both doctors were planning to be out of the state on the date

trial was scheduled; one would be in New York attending a

professional meeting and the other would be in Minnesota

taking his medical board examinations. At the hearing on the

earlier motion for continuance granted January 14, 1982, the

court expressed its concern about the long delay in bringing the

defendant to trial and indicated that counsel for both sides

should take steps to ensure that essential witnesses would be

available for trial scheduled March 11, using compulsory

process if necessary.

At the time of the hearing on March 5, 1982, three continu-

ances had been granted and a total of 121 days had elapsed from

the arraignment which were chargeable to the State. The State

informed the court that approximately 60 days were left of the

180 days allowed by K.S.A. 22-3402 to bring the defendant to

trial. The defendant’s counsel indicated he had no objection to

the requested continuance. Although the court recognized that

technical problems in trying the case existed which were not the |

fault of either party, the court denied the motion to continue

because of the number of times the case had previously been

continued. The court further determined that should the State

elect to dismiss the action no prejudice would occur to the

defendant.

The State then orally moved to dismiss the case without

prejudice. In granting the motion the court cautioned counsel

that the speedy trial issue could be a problem if the case was |

refiled. |

Four days later, on March 9, 1982, the State filed identical

charges against the defendant in district court case number 82

CR 111. The preliminary hearing was continued at the request of

VoL. 233 JANUARY TERM, 1983 187

State v. Ransom

the defendant to March 31, 1982. At that time the appellant

waived the preliminary hearing and pled not guilty. Trial was set

for May 3, 1982. Due to the unavailability of an essential witness

the State moved for a continuance on Apri! 30, 1982. Trial was

rescheduled for June 9, 1982.

A hearing was held on June 7, 1982, to consider motions by the

State to hold a Jackson v. Denno hearing and to endorse addi-

tional witnesses and a motion by the defendant to dismiss for

failure to comply with the speedy trial provisions of. K.S,A.

22-3402. Finding the defendant’s speedy trial motion dispositive

the court considered it first.

The court found that 121 days which were chargeable to the

State had elapsed from the time of the first arraignment until

dismissal of the: harges on March 5, 1982, in case number 81 CR

399, and that 90 days had elapsed from the date the charges were

filed in case number 82 CR 111. When combined, the time

chargeable to the State in these two cases exceeded the 180-day

time limit set forth in 22-3402(2). In its memorandum and journal

entry of dismissal the trial court specifically rejected the State’s

proposed finding of fact that the March 5, 1982, dismissal was a

matter of necessity, and made the following conclusion:

“The Court finds that 82 CR 111 is a case where no good reason has been

shown to extend the legislatively imposed rule of limitations for reason urged by

the State. Accommodation of the States witnesses by the prosecutor (thereby

delaying the case beyond the 180 day rule plus the statutes’ permitted exten-

sions) is not a reason sanctioned by statute or case law to extend the period within

which a case may be tried.”

The sole issue presented on appeal is whether the trial court

properly combined the post-arraignment time chargeable to the

State in case number 81 CR 399 with the post-arraignment time

in case number 82 CR 111 in calculating the 180-day limit

imposed by K.S.A. 22-3402(2) for bringing the defendant to trial.

Where, as here, the defendant is released on bond, K.S.A. 22-

3402(2) governs the time limits within which the defendant must

be brought to trial following arraignment. It provides:

“If any person charged with a crime and held to answer on an appearance bond

shall not be brought (o trial within one hundred eighty (180) days after arraign-

ment on the charge, such person shall be entitled to be discharged from fur er

liability to be tried for the crime charged, unless the delay shall happen as a

result of the application or fault of the defendant, or a continuance shall be

ordered by the court under subsection (3).”

188 SUPREME COURT OF KANSAS

State v. Ransom

The right to speedy trial provided by this statute does not

attach until the defendant is arraigned. State v. Taylor, 3 Kan.

App. 2d 316, Syl. 14, 594 P.2d 262 (1979); State v. Smith, 215.

Kan. 34, 39, 523 P.2d 691 (1974). For this reason it is important to

note that the time chargeable to the State in the second case did

not commence until March 31, 1982, when the defendant was

arraigned, and not on March 9, 1982, when the case was refiled

and the defendant arrested, as the trial court erroneously con-

cluded. The time elapsed from the defendant's arraignment to

June 7, 1982, when the case was dismissed, totaled 68 days, for

an aggregate sum of time chargeable to the State in the two cases

of 189 days.

The opposing views as to the effect of the dismissal of original

charges and the filing of subsequent identical charges on a

defendant’s right to speedy trial is set forth in 21A Am. Jur. 2d,

Criminal Law § 852.

“Under a statute which provides that an accused must be discharged if not

brought to trial within a certain period after arrest or indictment, there are two

views as to the effect of the dismissal of the original indictment or information

and the bringing of a subsequent indictment or information. One is that the

statutory time is to be computed from the time of the later indictment or

information, the theory being, broadly, that the original proceeding became a

nullity on its dismissal and that the new accusatory pleading represents the

institution of a new and independent proceeding to which the statute can be

applied without reference to anything which may have previously occurred. The

second theory applied in such circumstances is that to permit the state to deprive

an accused of the right to a discharge by the simple expedient of nolle prossing

the original indictment and procuring a new indictment for the same offense is,

in effect, to rewrite the statute, which, especially since statutes of the kind in

question were passed to implement the constitutional guaranty of a speedy trial,

ought rather to be given such a construction by the courts as to secure the ends

sought by the legislature.”

See also 22A C.J.S., Criminal Law § 468; Annot., 30 A.L.R.2d

462.

Where the State fails to bring the accused to trial within the

time limits fixed by the statute, and where the delay is not due to

the application or fault of the defendant or to extensions of time

as provided by K.S.A. 22-3402(3), Kansas appellate courts have

not hesitated to enforce the legislative mandate and order the

defendant discharged. State v. Warren, 224 Kan. 454, 457, 580

P.2d 1336 (1978); State v. Cox, 215 Kan. 803, 528 P.2d 1226

(1974); State v. Sanders, 209 Kan. 231, 495 P.2d 1023 (1972).

VoL. 233 JANUARY TERM, 1983 189

State v. Ransom

However, delays which are the result of the application or the

fault of the defendant are not to be counted in computing the

statutory period. It is the State’s obligation, not the accused’s, to

provide the defendant with a speedy trial in conformity with

both the Constitution and statute. State v. Warren, 224 Kan. at

456. Finally, should the State desire a continuance it must bring

its motion within the appropriate statutory period. State v. Cox,

215 Kan. at 805.

The issue pr>sented here has been addressed by this court

previously in Scate v. Fink, 217 Kan. 671, 538 P.2d 1390 (1975),

and State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d

626 (1979). In Fink the defendant was originally charged on

April 10, 1973, but because the defendant was not provided with

a preliminary hearing within the time provided by statute the

charges were dismissed on November 27, 1973. Shortly thereaf-

ter the case was refiled and the defendant moved to dismiss. In

June 1974, the lower court held that the fourteen-month delay

from the time of the defendant’s arrest in the first case to the

hearing on the motion to dismiss had violated the defendant’s

right to speedy trial and dismissed the charges. On appeal this

court reversed, holding:

“The dismissal or nolle prosequi of a criminal charge entered prior to the

arraignment and trial of an accused is not a bar to a subsequent prosecution for

the same offense. (Kenreck v. State, 198 Kan. 21, 24, 422 P.2d 894 and authorities

cited.) The same is true where a charge has been dismissed against a prisoner

prior to the expiration of the time limitation, and a second information is filed.

The time elapsing between the filing of the first information and the dismissal of

the cause by the court is not to be counted in determining the time elapsed

between the filing of the second information and trial.” 217 Kan. at 675.

Fink is readily distinguishable from the present case in that the

dismissal of the first information occurred before arraignment

and therefore K.S.A. 22-3402 did not apply. Furthermore, the

first information was dismissed pursuant to the defendant’s own

motion.

In Cuezze defendants Cuezze and Houston were indicted and

arraigned on charges of making false writings and conspiracy.

Months later, before dismissing the charges, the State filed

identical charges against the defendants in a second case, nam-

ing Faltico as an additional defendant. Subsequently the State

dismissed the first case against Cuezze and Houston. The time

elapsed from arraignment on the first charges until the dismissal

190 SUPREME COURT OF KANSAS

State v. Ransom

of the second case was over 300 days. The Supreme Court

distinguished the case from Fink, emphasizing that in Cuezze

the second case was filed while the first case was still pending so

that the defendants had remained continuously charged from the

time of their first arraignment.

In the opinion the court said:

“[T]he purpose of K.S.A. 22-3402 is to implement and define the constitutional

guarantee of a speedy trial and the statute establishes certain maximum time

limits within which a defendant must be brought to trial. Absent a showing of

necessity, the State cannot dismiss a criminal action and then refile the identical

charges against the same defendant and avoid the time limitations mandated by

the statute. As pointed out by the trial court, our prior cases relied upon by the

State arose out of different factual situations or issues than those now before the

court. It should also be noted that no attempt was made by the State to secure

additional time in the first case to develop evidence as contemplated by K.S.A.

1978 Supp. 22-3402(3)(c).” 225 Kan. at 278.

In the present case the trial court specifically rejected the

State’s proposed finding of fact that the dismissal of the first case

was a matter of necessity, although it was recognized at the time

the motion for continuance was denied that technical problems

had arisen in the case which were not the fault of either party.

Under the holding in Cuezze, as there was no showing of neces-

sity, the State here could not dismiss its first case, 81 CR 399, and

refile the charges in case number 82 CR 111 to avoid the time

limitations mandated by K.S.A. 22-3402. Support for this result is

found in a recent opinion by the Court of Appeals which involves

a situation factually similar to the instant case, also arising from

Geary County. In State v. Hunt, 8 Kan. App. 2d 162, 651 P.2d 967

(1982), the defendant was initially arraigned on November 10,

1980. On March 31, 1981, the date trial was to commence, the

State moved to dismiss without prejudice because an essential

witness was not available. Four days later the State refiled the

charges. The defendant was arraigned for the second time on

May 13, 1981. By the time the defendant was brought to trial on

July 27, 1981, 259 days had elapsed from the first arraignment on

November 10, 1980. Finding the combined time in the two cases

to be in excess of 180 days the Court of Appeals held:

“We find Cuezze to be controlling and hold that defendant's statutory right to a

speedy trial on the aggravated assault charge was violated. Though there was a

four-day gap between the dismissal of the first and the filing of the second

information, the dismissal resulted from the State’s own motion and was not

accompanied by a showing of necessity.” 8 Kan. App. 2d at 166.

VoL. 233 JANUARY TERM, 1983 191

State v. Ransom

The holding in the case was succinctly stated in the syllabus:

“When an information is dismissed by the State on its own motion after the

defendant has been arraigned, and thereafter the State causes to be filed a new

information charging the same offense, the State, when calculating the speedy

trial time requirements of K.S.A. 22-3402, must include the time elapsed be-

tween arraignment and dismissal of the first prosecution together with the time

elapsed between arraignment and trial of the second prosecution.

“The State cannot avoid the statutory speedy trial time limits by dismissing an

information and subsequently refiling the charges. The proper procedure for the

State to follow is to obtain a continuance pursuant to K.S.A. 22-3402(3).” 8 Kan.

App. 2d 162, Syl. 99 2, 3.

In the case at bar the State did seek to obtain a continuance

prior to dismissing the charges. The trial judge apparently did

not believe a fourth continuance in the case was justified, in

accord with his prior admonition to the parties concerning the

necessity of bringing the defendant to trial without lengthy delay

and to ensure that essential witnesses would be available for

trial, serving them with compulsory process if necessary. Both

doctors, whose attendance at trial was sought, had been supoen-

aed shortly after the continuance granted on January 14, 1982.

However, upon learning these witnesses had conflicting plans to

be out of the state on the date of trial, the State sought a

continuance to avoid interrupting the witnesses’ plans. There is

no indication in the record that the State made any attempt to

enforce the subpoenas and require the witnesses to be present at

trial; rather, it appears the prosecutor was willing to allow the

witnesses to disregard the subpoenas and, instead, seek a con-

tinuance. The grant or denial of a continuance in a criminal case

lies largely in the sound discretion of the trial court. State v.

Adamson, 197 Kan. 486, Syl. 4 1, 419 P.2d 860 (1966). Under the

circumstances in this case we cannot say the trial judge abused

his discretion in denying the State’s motion to continue.

Upon dismissing the second case the trial court found that the

dismissal of the first case was not a matter of necessity. The State

claims that because the testimony of the two doctors was vital to

the chain of forensic evidence the motion to dismiss was a matter

of necessity. However, the witnesses were unavailable because,

despite the trial court’s prior admonition, the State was ap-

parently unwilling to enforce the subpoenas ordering the wit-

nesses to appear at trial, in order to accommodate their personal

schedules. We cannot agree that accommodation of witnesses is a

192 SUPREME COURT OF KANSAS

State v. Ransom

matter of necessity. A criminal trial is a serious affair to which

both federal and state constitutions guarantee due process of law

and other rights, such as the right to confront witnesses and the

right to speedy trial. A person who is to be a witness in a criminal

trial may be personally inconvenienced by having to appear;

however, such inconvenience is overshadowed by a defendant's

fundamental right to fair adjudication of his case in the adminis-

tration of criminal justice. It is the primary responsibility of the

parties to ensure the attendance of witnesses in court, and it is

generally accepted that where the party seeking a continuance

has failed to exercise due diligence to procure the attendance of

necessary witnesses, the continuance may be properly denied.

See State v. Daigle, 220 Kan. 639, 644, 556 P.2d 400 (1976), cert.

denied 430 U.S. 983 (1977); State v. Hoggard, 146 Kan. 1, 3, 68

P.2d 1092 (1937); 22A C.J.S., Criminal Law §§ 486, 503b(1),

513(3); 3 Wharton’s Criminal Procedure § 428 (12th ed. 1975).

We agree with the decision of the Court of Appeals in Hunt

finding Cuezze to be controlling in this situation. Where, as here,

the dismissal of criminal charges results from the State’s own

motion and is not accompanied by a showing of necessity, and a

new information is filed charging the same offense, we hold that

when calculating the speedy trial time requirement of K.S.A.

22-3402 a court must include the time elapsed between arraign-

ment and dismissal of the first prosecution together with the time

elapsed between arraignment and trial of the second prosecu-

tion. A contrary rule would allow the State to dismiss and refile

charges against a defendant ad infinitum which would contra-

vene the purpose of K.S.A. 22-3402 and could lead to an abuse of

legal process.

The judgment of the lower court is affirmed.

MILLER, J., dissenting: The State, for good reason, sought and

was granted one continuance; the defendant, also for good rea-

son, was granted two continuances. The case was finally set for

trial on March 11 and 12,:1982. When the prosecutor learned,

among other things, that one of his subpoenaed medical wit-

nesses was scheduled to take the Minnesota medical board

examinations at the time fixed for trial and another was planning

to be out of state, he sought a second continuance, asking the

court for a different trial setting. For this kindly and under-

ET

VoL. 233 JANUARY TERM, 1983 193

State v. Ransom

standing gesture, the prosecutor is soundly criticized by the

majority, who would have required the enforcement of the sub-

poenas, medical board and the doctors’ careers notwithstanding.

The trial court denied the request without making any attempt to

fix a trial date on which the witnesses could be present. The

ultimatum to the prosecutor was loud and clear: Try the case on

March 11, witnesses or not, or dismiss. The only reason ad-

vanced by the trial court in denying the continuance was that the

Supreme Court, by its GUIDELINES and its constant harping

on the prompt disposition of cases, is forcing trial judges to

overlook the equities and justice of matters before them and to

consider only one thing—the speedy termination of cases. This is

not the first time we have heard this philosophy stated and seen

it relied upon, and it will not be the last. An affirmance in this

case will reinforce this erroneous, unfortunate, and all too wide-

spread belief.

Our GUIDELINES are not designed to encourage trial courts

to run roughshod over litigants and witnesses. These people

deserve to be treated with understanding and consideration,

even though it may take a few days longer to complete a given

case. In my judgment, this case should have been rescheduled

ten days or two weeks later, tried, and finished; the one physi-

cian could have taken his Minnesota board, the other could have

attended the New York conference, and no one would have been

inconvenienced. There is absolutely nothing in the record to

suggest that this could not have been done.

Since the State was compelled to dismiss the original case, the

Cuezze doctrine should not be applied.

McFarLanpD and Herp, JJ., join the foregoing dissenting opin-

ion.

McFaRLAND, J., dissenting: I believe the majority opinion has

approached the issue from the wrong direction. Rather than

mechanically adding the two prosecutions together and then

determining whether, on June 7, 1982, the State had made an

adequate showing of necessity as of that date to extend the

180-day speedy trial limitation of K.S.A. 22-3402, I believe the

proper focus should be on the circumstances of the March 5,

1982, dismissal of the first case. If the first case was dismissed

upon a showing of good cause, was not occasioned by the State’s

194 SUPREME COURT OF KANSAS

State v. Ransom

lack of diligence, was not prejudicial to any rights of the de-

fendant, and was not done as a part of any plan or scheme by the

State to harass defendant, defeat the statutory speedy trial re-

quirements, or in furtherance of other bad-faith motives, then the

two prosecutions should not be added together in considering

the speedy trial question.

In reviewing the circumstances leading to the dismissal of the

first case, I find the following facts to be particularly pertinent.

On March 4, 1982, the State moved for a continuance of the

March 11, 1982, trial date, filing the following affidavit in sup-

port thereof:

AFFIDAVIT

“Comes now Steven L. Opat, of lawful age, having first been sworn upon his

oath, hereby states and avers:

“That he is the chief prosecutor in case number 8:-CR-339, captioned in re:

State vs. Peter Ransom and advises the Court of the following:

“That this matter is set for trial on the 11th and 12th days of March, 1982; that

all witnesses were subpoenaed shortly after the last hearing, where the defend-

ant obtained a continuance for the reason that a key witness was unavailable.

“That speaking with certain witnesses, affiant has learned that Doctors Alex

Scott and Gerald Daniels will be out of the jurisdiction of this Court for the

following reasons;

“That Doctor Alex Scott, who is vital to the chain of evidence concerning

certain forensic evidence which will be introduced at the trial of this case, will be

in New York City, New York, attending a professional meeting for which he has

had a long standing commitment;

“That Doctor Daniels, who initially examined the victim in this case will be in

the State of Minnesota taking his boards which must be accomplished in fur-

therance of his professional medical career;

“That affiant has also learned that Curtis Barefield, an essential witness, has

absconded the jurisdiction of the Court, said Barefield being on probation from

the District Court of Geary County, Kansas;

“That these witnesses are essential to the State’s case and without their

testimony, the State cannot proceed to trial as scheduled;

“Further affiant saith naught.

/s/ Steven L. Opat

Geary County Attorney”

These statements, which have never been controverted, show

necessity. Dr. Daniels was scheduled to take his “boards” in

Minnesota, which is clearly a date not within his control to alter.

The taking of “boards” by a physician is a significant event in his

professional career. Dr. Daniels was a key witness for the State

as he was the physician who had initially examined the victim

and had taken the samples from her which comprised the “Rape

“ae

VoL. 233 JANUARY TERM, 1983 195

State v. Ransom

Kit.”” These samples were the basis for much of the testimony of

the State’s expert from the Kansas Bureau of Investigation Lab-

oratory.

Dr. Scott was the physician who, by Court order, had taken

blood samples, saliva samples and pubic hairs from the defend-

ant and submitted same to the Kansas Bureau of Investigation

Laboratory. Based upon the testimony of these two physicians,

K.B.I. chemist Eileen Burnau was prepared to show the victim's

attacker was within a certain percentage of the male population

which included defendant. Dr. Scott was obviously an important

witness in the case and there is no showing that his commitment

to the New York City meeting was a ruse, not of significant

importance to him, or could have been rescheduled.

Curtis Barefield was a witness the State intended to call to

testify as to defendant’s prior inconsistent statements and decla-

ration against penal interest.

The March 5, 1982, hearing on the State’s motion for continu-

ance is illuminating. The transcript of that hearing, in relevant

part, is as follows:

“Now the Court wants to take up the matter of the proposed—or, requested

continuance.

“Mr. Cuartier [defense counsel]: Your Honor, in regard to the defendant, the

only thing I can say is I know I went through this matter the last time and we

requested a continuance because of some unavailability of witnesses and /

understand Mr. Opat’s dilemma and so I am not going to personally object to it

because—and there are some witnesses that are out of state that, in his affidavit,

that we would, as far as the defendant is concerned, would like to have them

present to testify personally in the matter.

“Tue Court: . . . Myproblem is, asI recall, this is a case that’s now been

continued three times.

“Mr. Opat: It has.

“THe Court: And we now have a computer friend that oversees us to the point

that it even knows what the median time of disposition of our felony criminal

work is.

“The Court finds that no prejudice will occur to the defendant if the matter is

dismissed without prejudice; that the matter has been pending a sufficient length

of time for trial but for the technical problems which do sometimes arise in the

‘trial of criminal cases; the Court finds that it is neither the fault of the State nor

of the defendant that the present technical problems present themselves. The

Court does not believe that further continuance of the case is the proper way to

handle the case, considering the guidelines furnished by the Supreme Court for

the handling of criminal cases and the Court specifically finds that neither sid

is operating tactically to try to gain an advantage over the other in their

positions stated here today.

196 SUPREME COURT OF KANSAS

State v. Ransom

“Since the matter has not been considered on its merits and since the Court has

made the aforementioned findings and since the Court does not find lack of

diligence on anybody's part, the Court believes the appropriate handling of the

case is to deny the motion to continue at this time.

“Mr. Opat: I would like to, at this time, make an oral motion that I be allowed

to dismiss the matter without prejudice, pursuant to the Ceurt’s ruling.

“Tue Court: Mr. Chartier?

“Mr. CHARTIER: I have no objection to that.

“Tue Count: Again, reiterating the findings just announced with respect to the

motion to continue, the motion to dismiss is granted.” (Emphasis supplied.)

As noted in the majority opinion, we said in State v. Cuezze,

Houston & Faltico, 225 Kan. 274, 589 P.2d 626 (1979):

“As we said in Warren [224 Kan. 454, 580 P.2d 1336 (1978)], the purpose of

K.S.A. 22-3402 is to implement and define the constitutional guarantee of a

speedy trial and the statute establishes certain maximum time limits within

which a defendant must be brought to trial. Absent a showing of necessity, the

State cannot dismiss a criminal action and then refile the identical charges

against the same defendant and avoid the time limitations mandated by the

statute. As pointed out by the trial court, our prior cases relied upon by the State

arose out of different factual situations or issues than those now before the court.

It should also be noted that no attempt was made by the State to secure

additional time in the first case to develop evidence as contemplated by K.S.A.

1978 Supp. 22-3402(3)(c).” 225 Kan. at 278. (Emphasis supplied.)

The trial court found: (1) technical problems had developed in

the case which were not the fault of either party; (2) no prejudice

to the defendant would result from a dismissal; (3) neither side

was trying to gain a tactical advantage over the other; and (4)

both parties had acted diligently. Inherent in these findings is

the showing of “necessity” referred to in Cuezze.

Additionally the State did attempt to secure additional time—a

significant factor referred to in Cuezze. Further, the defendant

desired the presence of the witnesses. It was the trial court's idea

to dismiss the case out of concern for statistics kept by the

Judicial Administrator. The trial court simply did not want to be

charged statistically with a case whose termination would ex-

ceed the guidelines fixed by our court. These guidelines are

purely intramural in nature and are merely guidelines which

were developed for purposes of improving judicial administra-

tion. They do not and cannot alter or affect any rights of litigants.

They are matters wholly within the court system itself.

The dismissal of the first case was clearly upon a showing of

necessity. In my view, that finding is determinative of the issue

VoL. 233 JANUARY TERM, 1983 197

State v. Ransom

before us and precludes adding the two cases together for statu-

tory speedy trial purposes. The second case did not exceed the

180-day period, so no issue of speedy trial arises.

I would reverse and remand the case for trial.

MILLer and Herp, JJ., join the foregoing dissenting opinion.

ay

son iar 4 as

i ie nti in,

APPENDIX B

IN THE SUPREME COURT OF THE STATE OF KANSAS

State of Kansas,

Appellant,

vs. No. 82-54636-S

Peter H. Ransom,

Appellee.

You are hereby notified of the following action

taken in the above entitled case:

MOTION FOR REHEARING.

GRANTED.

Date: May 6, 1983

Yours very truly,

LEWIS C. CARTER

Clerk, Supreme Court

ay a ee ee

ee eel li

clio lt ms a

APPENDIX C

322 SUPREME COURT OF KANSAS

State v. Ransom

No. 54,636

STATE OF Kansas, Appellant, v. PETER H. Ransom, Appellee.

SYLLABUS BY THE COURT

1. CRIMINAL LAW--Speedy Trial—Dismissal and Refiling of Criminal

Case—Computation of Time for Applying Speedy Trial Statute. Where the

State dismisses a pending criminal case without making a showing of neces-

sity, and then files a second case charging the same defendant with the same

offense, a court must include the time elapsed between arraignment and

dismissal of the first prosecution together with the time elapsed between

arraignment and trial of the second prosecution, when calculating time for the

purpose of applying K.S.A. 22-3402, the Kansas speedy trial statute.

. SAME—Speedy Trial—Dismissal and Filing of Criminal Case—Computa-

tion of Time for Applying Speedy Trial Statute. Where the State dismisses a

pending criminal case upon a showing of necessity and then files a second

criminal case charging the same defendant with the same offense, the com-

putation of time for the purpose of applying K.S.A. 22-3402 commences from

the time the defendant is arraigned in the second case.

i)

Appeal from Geary District Court; WILLIAM D. CLEMENT, judge. Opinion on

rehearing filed December 2, 1983. (For original opinion affirming see 233 Kan.

185, 661 P.2d 392 [1983].) Reversed on rehearing.

Steven L. Opat, county attorney, argued the cause, and Robert T. Stephan,

attorney general, was with him on the brief for appellant.

Charles A. Chartier, of Junction City, argued the cause and was on the brief for

appellee.

The opinion of the court was delivered by

MILLER, J.: This appeal by the State from an order dismissing

an information charging the defendant with aggravated kidnap-

ping, rape, aggravated battery and aggravated robbery was heard

by this court in January 1983, and a divided court affirmed the

dismissal. The Chief Justice’s opinion, accurately stating the

facts, the issue, and the decision of the majority, was filed on

March 31, 1983. State v. Ransom, 233 Kan. 185, 661 P.2d 392

(1983). In May, we granted a rehearing. The appeal was reargued

by counsel, and we now reverse.

The facts are fully set forth in the earlier opinion. The de-

fendant was arraigned in Geary District Court in case No. 81 CR

399 on August 13, 1981, on charges of aggravated kidnapping,

rape, aggravated battery and aggravated robbery. On March 4,

1982, the State requested a continuance, citing as grounds its

difficulty in obtaining the presence of three witnesses, including

two doctors who planned to be cut of state on the proposed trial

date. On March 5, the trial court denied the requested continu-

VoL. 234 JULY TERM, 1983 323

State v. Ransom

ance, and the State immediately moved to dismiss the case

without prejudice. That motion was granted. At that time, 121

days were chargeable to the State. Defendant had been free on

bond. Four days later a new case, No. 82 CR 111, was filed. The

new case charged the defendant with the same offenses. De-

fendant was arraigned on March 31, 1982. Trial was set to

commence on May 3, 1982. The State again experienced trouble

securing the attendance of an out-of-state medical witness, and

moved for a continuance. The trial court granted the motion on

April 30 and set the case for trial at 8:30 o'clock a.m., on June 9,

1982. On June 7, defendant moved for discharge and the trial

court sustained that motion. The court found that under the

doctrine adopted by this court in State v. Cuezze, Houston &

Faltico, 225 Kan. 274, 589 P.2d 626 (1979), the time spans

chargeable to the State in the two cases must be totalled; that the

defendant had been held to answer in both cases for a total of 189

days; and that since the State had failed to bring him to trial

within the 180-day period prescribed by K.S.A. 22-3402(2), he

was entitled to be discharged. That statute provides as follows:

“(2) If any person charged with a crime and held to answer on an appearance

bond shall not be brought to trial within one hundred eighty (180) days after

arraignment on the charge, such person shall be entitled to be discharged from

further liability to be tried for the crime charged, unless the delay shall happen as

a result of the application or fault of the defendant, or a continuance shall be

ordered by the court under subsection (3).”

The delay in this case did not happen as a result of the applica-

tion or fault of the defendant, and no continuance was ordered by

the trial court under subsection three.

In addition to Cuezze, two other cases involving our speedy

trial statute should be discussed. In State v. Fink, 217 Kan. 671,

538 P.2d 1390 (1975), we held that the time limitations of K.S.A.

22-3402 do not commence to run until a defendant is arraigned,

and that the time between arrest and arraignment is not to be

included in computing the 90-day or 180-day periods within

which the accused must be brought to trial. In Fink, the original

proceeding was dismissed prior to arraignment, and thus the

statute did not come into play. In State v. Hunt, 8 Kan. App. 2d

162, 651 P.2d 967 (1982), the defendant was originally charged

with aggravated assault and unlawful use of weapons. Hunt was

arraigned on November 10, 1980. On March 31, 1981, the date on

which trial was to take place, the State moved to dismiss the

324 SUPREME COURT OF KANSAS

State v. Ransom

charges without prejudice as one of the State’s witnesses could

not be located. The witness was not an “essential” witness, and

the State did not make a showing of necessity. On April 3, 1981, a

new information was filed charging Hunt with aggravated bat-

tery, unlawful use of weapons, and making a terroristic threat.

That information was amended before Hunt was arraigned, al-

tering the aggravated battery charge to aggravated assault, and

dropping the terroristic threat charge. On May 13, 1981, the

defendant was arraigned on the amended information. A jury

trial was held on July 27, 1981, 75 days after arraignment in the

second case, but 259 days after arraignment in the original case.

The Court of Appeals reversed Hunt’s conviction on the aggra-

vated assault charge, holding that since the State dismissed the

original prosecution without showing necessity, the time be-

tween arraignment and dismissal on the original charge had to be

added to the time between arraignment and trial in the second

case in order to calculate the 180-day period allowable by stat-

ute. When this was done, it was readily apparent that the time

had expired prior to trial and Hunt was entitled to be discharged.

The decision was based upon our holding in Cuezze, which the

Court of Appeals held to be controlling. Due to factual differ-

ences, neither Fink nor Hunt is helpful here.

We turn now to the Cuezze case. K.S.A. 22-3402 does not deal

with the voluntary dismissal of charges by the State and the

inclusion of like charges in a new or subsequent complaint or

information. We dealt with that problem in Cuezze. There,

Cuezze and Houston were charged in the original information

with two counts of making a false writing and two counts of

conspiracy. Both were arraigned on those charges, Houston on

May 20, 1977, and Cuezze on June 13, 1977. In May 1977, the

State secured additional information linking Faltico to the illegal

conduct. Over three months later, in September 1977, the State

filed a new case against Cuezze, Houston and Faltico, and

sometime thereafter the State dismissed the original case against

Cuezze and Houston. Both defendants were arraigned on the

new charges on January 19, 1978. The trial court dismissed the

charges against both Cuezze and Houston on May 18, 1978, and

we affirmed that dismissal, finding that K.S.A. 22-3402(2) had

been violated. We said:

“As we said in Warren [State v. Warren, 224 Kan. 454, 457, 580 P.2d 1336

VoL. 234 JULY TERM, 1983 325

State v. Ransom

(1978)], the purpose of K.S.A. 22-3402 is to implement and define the constitu-

tional guarantee of a speedy trial and the statute establishes certain maximum

time limits within which a defendant must be brought to trial. Absent a showing

of necessity, the State cannot dismiss a criminal action and then refile the

identical charges against the same defendant and avoid the time limitations

mandated by the statute. As pointed out by the trial court, our prior cases relied

upon by the State arose out of different factual situations or issues than those now

before the court. It should also be noted that no attempt was made by the State to

secure additional time in the first case to develop evidence as contemplated by

K.S.A. 1978 Supp. 22-3402(3)(c).” (Emphasis supplied.) 225 Kan. at 278.

In Kansas, we recognize both the constitutional right to a

speedy trial and the right to a speedy trial enunciated by K.S.A.

22-3402. See State v. Rosine, 233 Kan. 663, 664 P.2d 852 (1983),

where both rights are fully discussed and distinguished. Here,

there is no claim of a constitutional violation. In this case we are

only concerned with the statutory right.

Cuezze establishes the principle that the State cannot dismiss

a criminal action and commence a new one containing identical

charges—absent a showing of necessity—and avoid the time

limitations of K.S.A. 22-3402. We have not decided what consti-

tutes a showing of necessity under Cuezze, nor have we deter-

mined what time limitations apply if the State does dismiss and

refile upon a showing of necessity.

The literal language of Cuezze implies that the time charge-

able to the State in the first action is to be added to that accrued

in the second action only if the dismissal is made without a

showing of necessity; ergo, if the dismissal is made with a

showing of necessity, the computation of the statutory time,

whether it be 90 or 180 days, commences anew upon the filing of

the second case and arraignment therein. This is logical, and we

so hold. See State v. Haislip, 234 Kan. , P.2d

(1983). To avoid the statutory time limitations, the State must

make a showing of necessity.

We turn now to the facts in the case before us in order to

determine whether the State made a showing of necessity at the

time it dismissed the original case against Ransom. The State

moved for a continuance of the trial date for the reason that one

witness had absconded and two of its principal witnesses had

serious conflicts with the trial setting. Both of the latter were

physicians; one was stationed at Fort Riley, Kansas, at the time

the offense was committed, and both were significant and im-

portant State witnesses. One had conducted the initial examina-

326 SUPREME COURT OF KANSAS

State v. Ransom

tion of the victim and had taken the “rape kit’? which was

submitted to the Kansas Bureau of Investigation laboratory. The

other had taken blood samples, saliva samples, and pubic hairs

from the defendant, pursuant to the Court’s order, and these had

been submitted to the same laboratory for examination and

comparison. The testimony of both witnesses was thus necessary

to lay the foundation for the critical expert testimony. Dr. Dan-

iels was nota local resident; he was only temporarily stationed at

Fort Riley, and he had left that station and had been separated

from the military service before the case could be tried. Dr.

Daniels was scheduled to take his Minnesota medical board

examinations at the time of trial. This event, as Justice McFar-

land pointed out in her dissent to the original opinion, 233 Kan.

at 194, is a significant event in a physician’s professional career

and not a date which he can control or alter. The other physician

had a long-standing commitment to attend a professional meet-

ing in New York City. The trial court, upon hearing the State’s

motion, made the specific findings set forth verbatim in Justice

McFarland’s dissent, 233 Kan. at 195-96. In short, the court found

that no prejudice would occur to the defendant if the matter was

dismissed without prejudice; that technical problems in securing

the appearance of witnesses had arisen; that these problems

were neither the fault of the State nor of the defendant; that

neither side was cperating tactically to try to gain an advantage

over the other; and that both parties had acted diligently. The

court concluded, however, that in view of the Guidelines

adopted by the Supreme Court for the handling of criminal cases,

the motion for a continuance must be denied. The State promptly

moved to dismiss without prejudice. The journal entry accu-

rately reflects this action:

“WHEREUPON, the Court considers the motion of the State for a continuance.

The Court entertains the statements of counsel and ascertains that there is no

objection from the defendant to the continuance proposed by the State of Kansas.

The Court further considers the file in this case and the reasons proffered by the

State for the proposed continuance. The Court specifically notes that this case

has been continued three (3) times previously and the Court further notes that

the County Attorney has exercised due diligence in attempting to secure the

attendance of the witnesses essential to this cause. In considering the Motion,

the Court finds, however, that certain guidelines proposed by the Supreme Court

must likewise be considered in determining whether or not the motion should be

granted. The Court, therefore, finds based on the evidence previously adduced

before it, based upon the evidence presented herein, and based upon the

VoL. 234 JULY TERM, 1983 327

State v. Ransom

guidelines and case law which pertains to the issues raised herein, that the

motion for a continuance should not be granted. The Court specifically finds that

in denying said motion, however, that the State is not attempting to obtain a

tactical advantage in seeking a continuance, that no prejudice has adhered to the

defendant thus far, in terms of his right to a speedy trial as the same is statutorily

defined.

“The Court finds that neither party has been less than diligent in their efforts to

bring this matter to trial.

“WHEREUPON, the State moves to dismiss this matter without prejudice,

stating to the Court that the same being a need of necessity since the State is

unable to proceed without the testimony of the three (3) witnesses that were

m .ntioned in their affidavit.

“WHEREUPON, the Court, based on its previous rulings and hearing no

objection from the defendant’s counsel, finds that the matter should be dismissed

without prejudice. The Court further adopts its previous rulings.

“It Is So ORDERED.”

While the judge did not specifically find that the State made a

showing of necessity, such a finding is implicit in the record and

in the findings made. The State had its witnesses under sub-

poena, but it was wary lest, in the face of the serious conflicting

commitments, the witnesses would not appear. If the State

proceeded with trial and either one of the witnesses failed to

appear, the State’s case would be badly crippled. True, the State

could later cite the witness for contempt, but that would not fill

the resulting void in the State’s presentation of its criminal case

against the defendant. Witnesses do not always appear, even

though they are ordered to do so. Some are stricken on the way to

the courthouse; others are hospitalized and undergo surgery.

Such problems cannot be anticipated. Other conflicts, however,

can. Professional examinations, such as bar, medical and dental

examinations, are given only at stated times and places; and an

aspiring professional might well be tempted to ignore a sub-

poena which conflicted with such an examination, even in light

of the probable contempt citation. The State anticipated this and

sought a different trial setting within the remaining 59 days

available to it within the statute. Upon the denial of its motion for

a continuance, the State dismissed and refiled rather than chance

a trial at which one or more vital witnesses would be absent.

Upon this record, we conclude that the State made a showing

of necessity. The Cuezze doctrine, therefore, is inapplicable.

The dismissal being made upon a showing of necessity, the

computation of the statutory time commenced anew. One hun-

328 SUPREME COURT OF KANSAS

State v. Ransom

dred eighty days had not expired from the date of arraignment,

March 31, 1982, to the date of dismissal.

The judgment is reversed, with instructions to set aside the

dismissal.

LockETT, J., concurring: State v. Ransom was set for trial May

3, 1982. The 180-day limitation imposed by K.S.A. 22-3402 had

not expired. On April 30, 1982, prior to the trial date, the State

requested a continuance because it was unable to contact a

necessary witness. The trial court granted the State a continu-

ance; later the judge notified the parties by letter he had re-

scheduled the trial for June 9, 1982. The State’s necessary

witness, who had received his subpoena, appeared to testify May

3, 1982.

Court dockets and trial settings are controlled by the courts.

The trial judge had the choice when to set the case for trial; he

alone chose June 9, 1982. The trial court’s decision to set the

June 9, trial date fell within the time limitation imposed by

K.S.A. 22-3402 because K.S.A. 22-3402(3)(d) allows an additional

30 days to be added to the 180-day limitation for trial. Therefore,

the June 9, 1982, trial setting was not in violation of K.S.A.

22-3402.

SCHROEDER, C.J., dissenting: It is respectfully submitted the

judgment of the trial court should be affirmed for all of the

reasons stated in the original opinion filed in this case on March

31, 1983. State v. Ransom, 233 Kan. 185, 661 P.2d 392 (1983).

The only additional information submitted to the court on the

rehearing of this case was the admission of the prosecuting

attorney in oral argument that the essential witness upon whom

the State was depending for its case, a doctor who conducted the

original examination of the victim and obtained evidence for the

“rape kit,” and who had been subpoenaed to appear on May 3,

1982, the date set for trial, appeared in his office pursuant to the

subpoena on May 3, 1982. It was the absence of this witness,

whom the prosecuting attorney considered essential and una-

vailable, that led to the dismissal of the original charges filed

against the defendant and, after the refiling of identical charges,

the subsequent continuance sought by the presecuting attorney.

Clearly, this fortifies the decision of the trial court that the State

failed to bring the defendant to tial within the 180-day time

limitation, and that there was no necessity for a continuance.

Pracer and Homes, Jj., join in the above dissent.

APPENDIX D

IN THE SUPREME COURT OF THE STATE OF KANSAS

State of Kansas,

Appellant,

vs. No. 82-54636-S

Peter H. Ransom,

Appellee.

You are hereby notified of the following action

taken in the above entitled case:

Motion by Appellee for Rehearing.

DENIED.

Date: January 20, 1984

Yours very truly,

LEWIS C. CARTER

Clerk, Supreme Court

APPENDIX E

K.S.A. 22-3402. DISCHARGE OF PERSONS

NOT BROUGHT PROMPTLY TO TRIAL. (1) If any

person charged with a crime and held in

jail solely by reason thereof shall not be

brought to trial within ninety (90) days after

such person's arraignment on the charge, such

person shall be entitled to be discharged from

further liability to be tried for the crime

charged, unless the delay shall happen as a

result of the application or fault of the

defendant, or a continuance shall be ordered

by the court under subsection (3).

(2) If any person charged with a crime and

held to answer on an appearance bond shall

not be brought to trial within one hundred

eighty (180) days after arraignment on the

charge, such person shall be entitled to be

discharged from further liability to be

tried for the crime charged, unless the delay

shall happen as a result of the application

or fault of the defendant, or a continuance

shall be ordered by the court under subsec-

tion (3).

(3) The time for trial may be extended

beyond the limitations of subsections (1)

and (2) of this section for any of the follow-

ing reasons:

(a) The defendant is incompetent to

stand trial;

(b) A proceeding to determine the defen-

dant's competency to stand trial is pending

and a determination thereof may not be com-

pleted within the time limitations fixed for

trial by this section;

(c) There is material evidence which is

unavailable; that reasonable efforts have

been made to procure such evidence; and that

there are reasonable grounds to Delieve that

such evidence can be obtained and trial com-

menced within the next succeeding ninety (90)

days. Not more than one continuance may be

granted the state on this ground, unless for

good cause shown, where the original con-

tinuance was for less than ninety (90) days,

and the trial is commenced within one hundred

twenty (120) days from the original trial date;

(d) Because of other cases pending for

trial, the court does not have sufficient time

to commence the trial of the case within the

time fixed for trial by this section. Not more

than one continuance of not more than thirty

(30) days may be ordered upon this ground.

(4) In the event a mistrial is declared or

a conviction is reversed on appeal to the su-

preme court or court of appeals, the time

limitations provided for herein shall commence

to run from the date the mistrial is declared

or the date of the mandate of the supreme court

or court of appeals is filed in the district

court.

APPENDIX F

New Supreme Court Justice Tyler Lockett is congratulated by Kansas

Attorney General Robert Stephan following swearing in ceremonies at the

Kansas Judicial Center. Photo by Ann Palmer

Justice Lockett Joins

High Court

Justice Tyler Lockett, the most

recent appointee to the Kansas

Supreme Court, was sworn in by

Chief Justice Alfred G. Schroeder in

ceremonies February 11. Lockett,

50, is the state's 63rd Supreme Court

Justice

A graduate of Washburn Universi-

ty and Washburn Law School, Justice

Lockett's career on the bench began

in 1971 when Governor Robert Dock-

ing appointed him judge of the Sedg-

wick County Court of Common Pleas,

a position he held for six years. The

state judicial unification plan abol-

ished that court in 1976 and Lockett

ran unopposed for the Sedgwick

County District Court where he

remained until his recent appoint-

ment to the high court by Governor

Carlin

Justice Lockett was also a nomi-

nee for a position on the Supreme

Court in 1979

Volume XXXII, Number 2

Kansas Bar Association

1200 Harrison « P. O. Box 1037

Topeka, Kansas 66601

March, 1983