Respondents Brief — Ransom v. Kansas

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| Office - Supreme Court. US

— * | FILED

83 1 713 JUN 18 1994

ALEXANDER L. STEVas

No, A-729 CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

eter H. Ransom, Petitioner

vs.

tate of Kansas Respondent.

BRIEF IN OPPOSITION TO THE GRANTING OF A

PETITION FOR A WRIT OF CERTIORARI

DAN BILES*

Assistant Attorney General

for the State of Kansas

Kansas Judicial Center

Topeka, Kansas 66612

(913) 296-2215

STEVEN L. OPAT

Geary County Attorney

Courthouse

Junction City, Kansas 66441

(913) 762-4343

Attorneys for Respondent

QUESTIONS PRESENTED

1. Does the Supreme Court of the United

tates have jurisdiction to consider the granting

f the petition for a writ of certiorari under

he facts of this case?

2. Does petitioner have a vested right in

ow the Kansas Supreme Court establishes the

ppellate procedure of the Court?

TABLE OF CONTENTS

Questions Presented .... +. +s. -

Opinions Below .... -

duriedictieg@ -« » « » * # 8.8 =

Constitutional and Statutory Provisions

inveoival 1 ew st 4h ee eee

Statement of the Case .....++ +s. «

Reasons for Denying Review

Does the Supreme Court of the United

States have jurisdiction to consider

the granting of the petition

for a writ of certiorari under the

facts of this case

Does petitioner have a vested right in

how the Kansas Supreme Court

establishes the appellate procedure

of the Court? .

Conclusion se @ & & 2 oe eee

INDEX TO APPENDICES

Appendix A. Kansas Supreme Court

Decision, March 31, 1983

Appendix B. Order of Rehearing

May 6, 1983 D wrects

Appendix C. Kansas Supreme Court

Decision, December 2, 1983

Appendix D. Order Denying Rehearing

January 20, 1984 es = «8 «

Appendix E. K.S.A. 22-3402

Appendix F. K.S.A. 60-2101

Appendix G. Rule No. 7.06 Rehearing or

Modification in Supreme Court K.S.A.

60-270la

Appendix H. Journal Entry dated March

22, 1984, in 82-CR-111, District

Court, Geary County, Kansas

TABLE OF AUTHORITIES CITED

Cases

City of Wichita v. Mesler, 8 Kan.

App. 2d 710 666 P.2d 1209 (1983)

Connell v. State Highway Commission,

192 Kan. 371, 374, 388 P.2d 637

(1964) « Tg OOF 1 os Maes

In re Powell, 167 Kan. 283, 205 P.2d

1193 (1949) eS ea %

Municipal Airport Condemnation of City

of Hutchinson v. C.D. Wagoner, 163 Kan.

735 185 P.29 248 (1947)

State v. Cuezze, Houston, & Faltico,

225 Kan. 274, 589 P.2d 626 (1979)

State v. Ramirez, 175 Kan. 301, 309,

263 P.29 239 (1953) es

State v. Ransom, 233 Kan. 185, 661

P.2d 392 (1983) vw ee WS

State v. Ransom, 234 Kan. 322, (1983)

State v. Rosine, 223 Kan. 663, 664

P.2d 852 (1983) a ee

Statutes

Kansas Statutes Annotated

K.S.A. 22-3402

K.S.A. 60=2101 . . « or

K.S.A. 60-270la:Rule No. 7:06

Other Authorities

Black's Law Dictionary, Revised Fourth

Edition, 1968 P. 979

13 Record of N.Y.C.B.A. 541 at 542-46

(1958)

14 C.J.S. Certiorari eat p. 286

et seq. aa ae cee ee

16 C.J.S. Constitutional Law chica

at p. 1271-72 sen ae

aii maemo

No. A-729

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

Peter H. Ransom, Petitioner

vs.

State of Kansas Respondent.

BRIEF IN OPPOSITION TO THE GRANTING OF A

PETITION FOR A WRIT OF CERTIORARI

Respondent State of Kansas respectfully

suggests that there is no jurisdiction for the

Honorable Court to grant petitioner's request

for a writ of certiorari to issue, and, therefore,

prays that the Court deny the same.

— i

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

Respondent respectfully points out that

there were no interpretations rendered by the

Kansas Supreme Court upon any constitutional

issue, either state or federal; that there appears

no issue to be considered that is of a substantial

federal nature; that, therefore, the Court has

no jurisdiction.

a ae

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent believes that no constitutional

provisions are applicable herein.

STATEMENT OF THE CASE

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 throughout these proceedings.

The defendant 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,

a eee

citing as grounds its difficulty in obtaining

the presence of three witnesses, including two

doctors who planned to be out of state on the

proposed trial date. On March 5, the trial

court denied the requested continuance, 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. Defendant was arraigned on March

31, 1982. Trial was set to commence on May

oS, 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 20 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

— wen

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 totaled; 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 he4d ‘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 Supreme Court of Kansas initially

held that the trial court was correct in its

analysis of the state statute (e.s.) on speedy

trial. The vote was a 4-3 vote, with the dissent

_— =

expressing disbelief over the emphasis placed

upon the "Guidelines" and lack of a finding of

"necessity" by the majority.

Upon Motion for rehearing, which was

granted, the Court again considered the matter.

By a 4-3 vote, the court reversed itself and

remanded for trial stating:

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, 223 Kan. 663,

664 P.2d 852 (1983), where both

rights are fully discussed and

distinguished. Here, there is no

claim of a constitutional violation.

(e.s.) In this case we are only

concerned with the statutory right...

to avoid the statutory time limitations,

the State must make a showing of

necessity.

We turn now to the facts in the case

before use 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 later were physicians;

one was stationed at Fort Riley,

Kansas, at the time the offense was

committed, and both were significant

and important State witnesses. One

had conducted the initial examination

ae. ee

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, pursur it 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. Daniels was not a

local resident; he was only temporarily

stationed at Forty 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 Minnescta medical

board examinations at the time of trial.

This event, as Justice McFarland 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 meeting 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 (e.s.)

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 the defendant;

that neither side was operating 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 accurately

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 guidelines and

case law which pertains to the issues

raised herein, that the motion for

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 had

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

mentioned 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 subpoena, 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

satiiee

stated times and places; and an aspiring

professional might well be tempted to

ignore a subpoena 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 inapplicabl

The dismissal being made upon a showing

of necessity, the computation of the

statutory time commenced anew. One hundre

eighty days had not expired from the date

of arraignment, March 3l, i¥82, to the

date of dismissal.

The judgment is reversed, with instruction

to set aside the dismissal.

Upon remand, the matter was set for trial.

Witnesses were subpoenaed and the State was

ready to proceed. The matter was then stayed

(i.e., continued) at the defendant's request,

destroying any further issue of his right to

a speedy trial pursuant to K.S.A. 22-3402.

No motion (e.s.) was or has been filed raising

any (e.s.) issue of the petitioner's right to

a speedy trial as constitutionally defined.

itt de

ee Appendix H.

REASONS FOR DENYING CERTIORARI

DOES THE SUPREME COURT OF THE UNITED STATES

HAVE JURISDICTION TO CONSIDER THE GRANTING

OF THE PETITION FOR A WRIT OF CERTIORARI

UNDER THE FACTS OF THIS CASE?

As the Kansas Supreme Court noted in 234

an. 322, at 325, the issue of any constitutional

Violation of the defendant-petitioner's right

fo a speedy trial has never (e.s.) been addressed

elow. The only issue that has ever been raised

s the construction of K.S.A. 22-3402 and its

effects upon the facts of this case.

The general rule applicable to appellate

Procedure is that objections not raised in the

ower court cannot be reviewed upon appeal.

s set forth in 14C.J.S. Certiorari, §149, p.

86, et seq.:

Objections not raised or decided in

the lower court ordinarily will not

be considered on review, except as

to questions of public policy or

jurisdiction.

— | oe

The rule applicable to appellate

procedure generally, that objections

not raised in the lower court cannot

be relied on in the appellate court;

as anounced.... This rule applies to

objections, not raised or ruled on

below, as to the constitutionality

of a statute, /9 the form of the

remedy,’6 the competency of witnesses, /?

the admissibility of evidence,/8 that

there was a failure to prove, 9 or that

there was a variance between the

allegations and the proof.80,...

The claim of exclusive federal jurisdiction

will not be recognized as a basis for

review by certiorari unless the question

has been raised in the trial court and

presented as a basis of the writ, where

the state appellate tribunal is

circumscribed in its discussion of the

case to errors appearing on the record,

unless the question presented is one

dealing with the jurisdiction of the

court or general policy of the state.99

There is, therefore, no federal question

of (any) substantial nature to be decided in

accordance with the requirements of Rule 19.

Where certiorari is sought from the decision

of the highest state court, only federal issues

are reviewable, and a state issue is not subject

to review no matter how thoroughly convinced

anyone is that the state court misconstrued

a am

its own law. Herein the Kansas Supreme Court

has construed and applied K.S.A. 22-3402.

There simply is no (e.s.) federal issue which

this court should consider, nor is any stated.

As Justice Harlan stated in "Manning the Dikes--

Some Comments On The Statutory Certiorari

Jurisdiction And Jurisdictional Statement Practice

Of The Supreme Court":

At the time an appeal... is docketed

the appellant must file... a

statement showing, among other

things... that the federal question

sought to be presented is substantial,

if the appeal is from a state court;...".

13 Record of N.Y.C.B.A. 541, at

542-46 (1958).

Cc.

Respondent also suggests that this is

not the proper time for petitioner to seek relief

via certiorari. There is no final judgement

from which relief can be had. The case has

been remanded for trial by the Supreme Court,

with orders to set aside dismissal (previously

entered).

natiiae

"A final judgment is... one which puts

an end to a suit or action... A judgement which

disposes of the subject matter of the controversy

or determines the litigation as to all parties

on its merits..." See Black's Law Dictionary,

Revised Fourth Edition, 1968, p. 979.

Petitioner is attempting to try his case

"piecemeal". As the Kansas Supreme Court has

stated in exercising its appellate jurisdiction:

"Piecemeal appeals are frowned upon

in this state."

See Connell v. State Highway Commission,

192 Kan. 371, 374, 388 P.2d 637 (1964); also

State v. Ramirez, 175 Kan. 301, 309, 263 P.2d

239 (1953).

When remanded for trial, the petitioner

chose to abandon his claim of denial to a

statutorily (e.s.) defined trial and instead

now seeks a remedy upon grounds never previously

raised. See Appendix H.

—

Il. DOES PETITIONER HAVE A VESTED RIGHT IN

HOW THE KANSAS SUPREME COURT ESTABLISHES

THE APPELLATE PROCEDURE OF THE COURT?

Petitioner submits nothing for the Court

to consider upon the issue of rehearing except

irinuendo and wild speculation. First, petitioner

states "It should be noted that Justice Tyler

C. Lockett, a personal friend of Kansas Attorney

General, Robert T. Stephen (sic, Stephan), was

appointed to replace the late Alex M. Fromme.";

see petition, p. 7. Next petitioner asserts

that: "The only reason stated for the rehearing

by the Kansas Supreme Court was the replacement

of Justic Alex M. Fromme by Justice Tyler C.

Lockett."' See petition, p. 18.

Respondent would ask: (1) is petitioner

insinuating that Justic Lockett would cast his

vote one way or the other because of his alleged

friendship with the Attorney General (which

hesn't been demonstrated except by innuendo);

(2) where is the evidence for the supposition

by petitioner that the rehearing was granted

because of a "replacement"?

rs, , we

Respondent suggests that petitioner has

provided no evidence via the record to support

either spurious assignation. The insinuations

raised are contemptible and not worthy of further

comment except to say that they exist only in

the mind of petitioner.

The rules established by the legislature

for appellate practice and procedure and the

rules promulgated by the Supreme Court pursuant

thereto have been followéedin this case. See

Appendix F & G.

Matters of appellate procedure, like other

questions of procedure, are within the control

of the legislature, and may be regulated by

statutes applicable to pending proceedings®°...

Apart from statutory or constitutional

authorization, the courts themselves may change

judicially established rules of appellate

procedure without impairing vested rights.

See 16 c.J.S.§272C, at p. 1271-72.

As the Kansas Supreme Court has stated

on numerous occasions:

18 ee ala Me oe

a oo

a Cee en ey ee

er ee ae

Pm ae

The right to an appeal is neither

a vested right nor a constitutional

right (e.s.). It is purely statutory,

maybe limited by the legislature to

any class of cases or in any manner

or may be entirely withdrawn.

See In re Municipal Airport Condemnation

of City of Hutchinson v. C.D. Wagoner, 163 Kan.

735, 186 P.2d 248 (1947), at syl. 2; and in re

Pewell, 167 Kan. 283, 205 P.2d 1193 (1949),

at syl. 1; City of Wichita v. Mesler, 8 Kan.

App. 2d 710, 666 P.2d 1209 (1983).

oatiiin

CONCLUSION

Certiorari should be denied herein for

the following reasons: (1) the question raised

by the petitioner was not raised below in any

court of competent jurisdiction; (2) there is

no federal question presented; (3) there is

not yet a final judgment upon which an appeal

can be predicated; (4) the petitioner has no

vested right as to the manner in which the Court

establishes and conducts its appellate procedure;

(5) the petitioner has had a full and fair

opportunity below to litigate his claim with

reference to the state right; (6) the petitioner

offers nothing to support his claims but

speculation, bald conclusion and spurious

accusation.

Respectfully submitted,

DAN BILES*

Assistant Attorney General

for the State of Kansas

Kansas Judicial Center

Topeka, Kansas 66612

(913) 296-2215

ex | Ure

STEVEN L. OPAT

Geary County Attorney

Courthouse

Junction City, Kansas 66441

(913) 762-4343

Attorneys for Respondent

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 offense, when calculating the speedy trial time

requirement of K.S.A. 22-3402 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.

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 throughout

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, 198), 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 to 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 mot. sn 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 April 30, 1982. Trial was

rescheduled for June 9, 1982.

A hearing was held on June 7, 1982, to consider metions 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 charges 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:

“Ifany 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 arraign-

ment 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).”

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 dischazge 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 presented here has been addressed by this court

previously in State 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

tine 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 19]

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. 949 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 presecution 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 !zarned,

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-

Vor. 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.

McFar.anp and Herp, JJ., join the foregoing dissenting opin-

ion.

McFar.anp, 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 81-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

Fa ed i rene ect

St AL Na rn So

2 TL, cetate

Von. 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. CHARTIER [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 I

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: . . . My problem is, as I recall, this is a case that’s now been

continued three times.

“Mr. Opat: It has.

“Tne 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 belicce 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 tactical; 40 try to gain an advantage over the other in thei

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 Court's ruling.

“Tue Court: Mr. Chartier?

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

“THe 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

ties

Vor. 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.

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

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

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 specdy 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.

Appeal from Geary District Court; Wittiam 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. 8] 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 out 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 spens

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 operating 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

mentioned 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.

ScuroEDER, 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 prosecuting attorney.

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

failed to bring the defendant to trial 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;

unavailable; that reasonable efforts have

been made to procure such evidence; and that

there are reasonable grounds to believe 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.

EDITOR'S NOTE

HARD C ME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

APPENDIX F

RE, CIVIL

Article 21.—Al

Cross Heferences to Related SeXigh:

Kales of supreme court relating to Supreme cnet,

comtol appeals and appellate practice, see G0-2701e

Law Keview and Bar Journal References:

Heduction supreme court case Joad dicuned,

“Highlights of the Kansas Code of Civil Procedure

(19609) Spencer A. Gard, 2 W.ALJ. 108 202 (ied)

G0-2101. Appellate jurisdiction of

court of appeals and supreme court; admin-

istrative appeals to district court. (a) The

court of appeals shall have jurisdiction to

hear appeals from district courts, except in

those cases reviewable by law in the district

court and in those cases where a direct

appeal to the supreme court is required by

law. The court of appeals also shall have

jurisdiction to hear appeals from adminis-

trative decisions where a statute specifically

withorizes an appeal directly to the court of

appeals from an administrative body ar of:

lice. In any case properly before it, the court

vt appeals shall have jurisdiction to correct,

modify, vacate or reverse any act, order oe

dyiment of a district court to assure that

any such act, order or judgment is just, legal

ind tree of abuse. Appeals from the district

court to the court of appeals in criminal

vases shall be subject to the provisions of

K.S.A. 22-3601 and 22-3602, and any

unendments thereto, and appeals from the

listrict court to the court of appeals in civil

rctions shall be subject to the provisions of

K.S.A. 60-2102, and any amendments

hereto.

(b) The supreme court shall have jurts-

liction to correct, modify, vacate, or reverse

ny act, order, or judgment of a district coun

w court of appeals in order to assure that

my such act, order or judgment is just, legal,

md free of abuse. An appeal from a fi

udygment of a district court in any clvil

ction in which a statute of this state or of

he United States has been held unconst-

utional shall be taken directly to the swu-

yeme court. Direct appeals from the dis-

rict court to the supreme court in criminal

‘aves shall be as prescribed by K.S.A. 29-

GOT ancl 22-3602, and any amendments

hereto, Cases appealed to the court of ap-

wily may be transferred to the supreme

‘ourt as provided in K.S.A. 20-3016 and

10-3017, and any decision of the court of

ppeals shall be subject to review by

——

whee

Arr

sepreme court as provided in subsection (b)

of K.S.A. 20-3018, except that any party may

appeal from a tinal decision of the court of

ap wals to the supreme court, as a matter of

rh Wh whenever a question under the con-

stitution of either the United States or the

stute of Kansas arises for the first time as a

tesult of such decision.

te) As used in the cocle of civil proce-

dhe, the term “appellate court” means the

supreme court or court of appeals, depend-

tog on the context in which such term is

used and the respective jurisdiction of such

courts over appeals in civil actions as pro-

vided! in this section and K.S.A. 60-2102,

and any amendments thereto.

Gh A judgment rendered or final order

made by an acdministrative bourd of officer

exercising judicial or quasi-judicial funce-

Hons may be reversed, vacated or modified

by the district court on appeal. Hf no other

means for perfecting such appeal is pro-

sided by law, it shall be sufficient for an

angiteved party to file a notice that such

patty is a paaner Shon from such juckgment on

onler with such board or officer within

thirty (30) days of its entry, and then causing

true copies of all pertinent proceedings be-

foe such board or officer to be prepared and

filed with the clerk of the district court in

the county in which such judgment or order

was entered. The clerk shall thereupon

dacket the same as an action in the district

court, which court shall then proceed to

teview the same, either with or without

aklitional pleadings and evidence, and

enter such order or judgment as justice shall

require. A docket fee shall be required by

the clerk of the district court as in the filing

vf an original action.

Wistory: 1. 1963, ch. 303, 60-2101; L.

1074, ch. 164, § 7; L. 1975, ch. 178, § 27; L.

1976, ch. 251, § 29; L. 1977, ch. 112, § 24;

May 14.

Seurce of prior law:

tad t. USO4, ch. 9, 81, GS. 1R6S, ch. dO, 94540,

S41, 1. Iyou, ch. 142, $6564, BOS. 1923, 60-5501

thy 1. 1865, ch. 53,89; G.S. 1868, ch. BO, 8542. 1.

Van oh. 278, $050. 1907, ch. 256, 8 1b. 1909, ch. 142,

95S. 1. 1995. ch. 187, 8 1, RLS. 1923, 60-3502.

Reviser's Note:

17S amendment to this section repealed by L. 1976,

ch 251, 08

Cross References to Related Sections:

Cannterclain and cross-claims, appealed or removed

mth, sce 621°K)).

APPENDIX G

RULES OF THE SuPRES

Cf rt Ons Be 60-27018

ure to file is result of excusable neglect Davis. State,

204 K #16 SIS, 466 P.2d 311.

2. Failure to timely comply with filing provisions of

nile. cross-appeal dismissed. State. ex rel., vo Koscot

Interplanetary. Inc., 212 K. 668. 670, 671. 512 P.2d 416.

3. Briefs presented to trial court not properly part of

record on appeal: one-half cost of printing taxed to

attorney personally. In re Estate of Hannah. 215 K. 892,

900. 529 P.2d 154.

4. Motion to intervene denied; permission to file

umicus curiae brief under subsection (A) granted. Leek

v Thets, 217 K. 784, 789, 539 P.2d 304.

5. In interests of justice appeal not dismissed al-

though subsection (bX2) not complied with. Kansas

Bankers Surety Co. v. Scott. 225 K. 200, 202, 589 P.2d

$75.

6. Motion to dismiss for failure to prepare brief in

compliance with this rule overruled. Wiehe v. Kukal.

225 K. 475. 480, 592 P.2d 860.

7 Failure of briefs to conform to requirements of

subsection (b) commented on. Curtis \. Freden. 224 K.

646. 648, 585 P.2d 993.

Rule No. 9

1. Cited. right to court-appointed counsel. Chance \

State. 195 K. 430. 432. 407 P.2d 236

Rule No. 10

1 The bench and bar admonished to give juvenile

court cases involving waiver of jurisdiction the prefer-

ential treatment that justice and public interest re-

quire. In re Long, 202 K 216, 215, 445 P.2d 25

2. Counsel for defendant not permitted to argue

where failure to file brief. Whiteley v. O'Dell, 219 K

314. 316, 548 P.2d 798.

Rule No. 13

1. Appeals from summary judgments; cases consoli-

dated by stipulation. summary judgment not a trial by

affiday its. Lee ¥. Mobil Oil Corporation. 203 K. 72. 73.

452 P.2d 457.

2. Applied; actions to recover money due. applica-

tion of proceeds of collateral to debts. State Bank of

Downs + Moss, 203 K. 447, 448, 454 P.2d 554

3. Appeals consolidated hereunder. court had no

authority to modify or amend condemnation award.

Unihed School District vo Turk, 219 K 655. 657. 549

P.2d 882

Rule No. 16

1. Applied. notice of appeal held timely filed. Se-

curity National Bank v. City of Olathe, 225 K. 220, 22),

549 P 2d 589.

2. Applied in holding appeal from conviction of

Perjury timely filed. State v. Brady, 2 K.4.2d 382, 383,

580 P 2d 434.

3. Purpose of rule and its successor, Rule 2.03.

ee ercy Carson v. Eberth, 3 K.A.2d 183, 186, 592

Rule No. 17

1 Applied, court erred in suppressing evidence,

warrantless search incident to valid arrest. State v.

Tyeurt 215 K 409, 415, 524 P.2d 753

2 rde@ suppressing evidence on grounds of tlie:

gal s@gurg held proper States Younghlood 220K

782. 2d 195

Supreme Court Reporter's Note:

Rules are current through July 31 TOSD. tncorporat-

ing all reported amendments through 230 Kan. Ad-

vance Sheet No 1. In addition. histesical notations to

tules indicating eflective dates of new rules, repealed

rules, and amendments since January 10. 1977. are

included in brackets following applicable rules

60-2701a. Supreme Court, Court of Ap-

peals and Appellate Practice.

GENERAL AND ADMINISTRATIVE

Rule No. 1.01. Prefatory Rule. (a) Rules

Adopted. Te following Rules of the Su-

preme Couri cade 1.01 through 9.0]

are hereby adopted effective January 10,

76.

(b) Repeal of Former Rules. All rules of

the Supreme Court relating to appellate

practice, numbers | through 18. which are

in effect immediately prior to the effective

date of these rules are hereby repealed as of

January 10, i977. except that the, shall

continue to govern any appeal in which the

notice of appeal was filed prior to that date.

unless the parties stipulate that these rules

or some portion of them shall apply and

such stipulation is approved by the appel-

late court.

whenever there is a reference toa section of

a statute by number it shall be deemed to be

a reference to the Kansas Statutes Anno-

tated or Supplement or amendment thereto

unless « different statute is indicated.

(d) The Clerk. The clerk of the Supreme

Court is clerk of the Court of Appeals and is

referred to in these rules as “the clerk of the

appellate courts.”

(e) Applicability. All rules relating to

appellate practice shall be applicable to

both civil and criminal appeals, and govern

procedure in both the Court of Appeals and

the Supreme Court, unless otherwise indi-

cated.

Rule No. 1.02. Chief Judge of the Court

of Appeals. The Chief Judge of the Court of

Appeals shall have the following adminis-

trative powers:

(a) To designate and number hearing

panels, assign judges to such panels, and

designate the presiding judge of each panel

of which he is not a member.

345

‘APPENDIX G al

Reces of tit Surneme Count

et.

time for the filing of a petition for review by

the Supreme Court.

(b) If no motion for rehearing is filed, or a

motion for rehearing is denied, and no mo-

tion for review is pending under Rule No.

8.03 and the time for filing the same has

expired, the clerk of the appellate courts

shall, unless the court otherwise orders,

issue a mandate on the decision of the Court

of Appeals to the district court together with

a copy of the opinion.

Rule No. 7.06. Rehearing or Modifica-

tion in Supreme Court. (a) A motion for

rehearing or modification in a case decided

by the Supreme Court may be served within

twenty (20) days of the date of the decision.

The issuance of the mandate shall be stayed

pending the determination of the issues

raised by such a motion. If a rehearing is

granted, such order suspends the effect of

the original decision until the matter is de-

cided on rehearing.

(b) If no motion for rehearing is filed or

ee denial of a motion for rehearing, the

clerk of the appellate courts shall. unless

the court otherwise orders, issue a mandate

on the decision of the Supreme Court to the

district court together with a copy of the

opinion.

Rule No. 7.07. Costs and Fees. (a) Gen-

eral. In any case there shall be separately

assessed when applicable all fees for ser-

vice of process, witness fees, reporter's fees,

allowance for fees and expenses of a master

or commissioner appointed by the appellate

court, and any other proper fees and ex-

penses. All such fees and expenses shall be

approved by the appellate court unless spe-

cifically fixed by statute. When any such

fees and expenses are to be anticipated in a

case, the appellate court may require the

parties to the proceeding to make deposits

in advance to secure the same. In disposing

of any case before it, an appellate court may

apportion and assess any part of the original

docket fee, the expenses for transcripts, and

any additional fees and expenses allowed in

the case, against any one or more of the

Parties in such manner as justice may re-

quire

(b) Frivolous Appeals. If the court finds

that an appeal has been taken frivolously. or

only for purposes of harassment or delay, it

May assess against an appellant or his

counsel, or both, the cost of reproduction of

the appellee's brief and a reasonable attor-

ney's fee for the appellee's counsel. The

mandate shall then include a statement of

any such assessment, and execution may

issue thereon as for any other judgment, or

in an original case the clerk of the appellate

courts may cause an execution to issue.

motion, or on the motion of an aggrieved

party filed not later than ten (10) davs after

an assessment of costs hereunder, the ap-

Hlate court may assess against a party or

is counsel, or both, all or any part of the

cost of the trial transcript which the court

finds to have been prepared as the result of

any unreasonable refusal to stipulate pur-

suant toa written request and in accordance

with Rule No. 3.03, to the preparation of

less than a complete transcript of the pro-

ceedings in the district court.

TRANSFER TO AND REVIEW BY SUPREME

COURT

Rule No. 8.01. Transfer to Supreme

Court on Certificate. Whenever the Court of

Appeals shall] request that an undetermined

case pending before it be transferred to the

Supreme Court for final determination.

such request shall be by certificate of the

Chief Judge of the Court of Appeals filed

with the clerk of the appellate courts, ac-

companied by eight (8) copies. The certifi-

cate shall set forth the nature of the case,

shal] demonstrate that such case is within

the jurisdiction of the Supreme Court, and

shall show the existence of one or more of

the grounds for transfer specified in Sec.

20-3016 (a). As may be appropriate, such

certificate shall specify:

(a) Which issue or issues are not within

the jurisdiction of the Court of Appeals

with citation to controlling constitu-

tional, statutory or case authority;

(b) The subject matter of the case which

has significant public interest; or

which have major public signifi-

cance.

Ifthe request is made under Sec. 20-3016

(a) (4), the certificate shall contain sufficient

data concerming the state of the docket of

the Court of Appeals and of the Supreme

Court to demonstrate that the expeditious

administration of justice requires such

transfer.

361

| APPENDIX ff

IN THE DISTRICT COURT OF GEARY COUNTY, KANSAS

State of Kanner Plaintiff

va. Wo. #2-CR-111

Peter H. Ransom Defendant

ONDER OF CONTI JANCE

Now on this 22nd day of March, 1984, the above captioned

matter comes on before the Court upon the defendant's motion filed

herein requesting that this mattor be continued from the trial

setting of April It through 13, 1984 pending the determination

of the United States Supreme Court regarding the defendant's

petition for a writ of certiorari. The State appears by Steven

L. Opat, Geary County Attorney and the defendant appesre by Roger

Thospson, retained counsel of Bengston, Waters, Thompson & Barry,

cneay of Junction City, Kanses.

WHEREUPOK, the Court entertains the statements and

arguments of counsel, and notes specifically the objection of

the State of Kaneas to any continuance herein. The Court notes

the file and finds that the State has filed praecipes for subpoenaes

herein and that process has been effected and that the State is

ready for trial. The Court, however, notes that it would be

futile under the circumstances to try thie matter pending the

determination of the United States Supreme Court herein. The

Court finds that the matter should be and is hereby continued

pending such determination, and ORDERS that all time from this

date forward until the next trial setting shall be charged to

the defendant, for the purpose of computing any time concerning

hie right to « speedy trial as the same is statutorily defined

by K.S.A. 22-3402, or as the same may be constitutionally defined.

The Court further instructs the State to notify ite witnesses

that they need not honor the process issued, and further instructs

the clerk of the District Court to notify the jury panel that

it need not appear on the date scheduled for trial herein.

IT 1S SO ORDERED.

APPROVED:

2627 ef

ven . a

Geary County Attorney

Courthouse

Junction City, Kansas 66441

(913) 762-4343

pson:

for the Defend@nt

st B¢h Street

Junction City, Kansas 66441

(913) 762-2901

CERTIFIED COPY

District Court of Geary County, Kanses ty

1, the undersigned clerk of the stove

reamed coun. hemt: o oify thet the instre

ment to which > che te aati ine

correct cupy uf the original on file

ce.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.