 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
STATE v. IRVIN11/22/1991
This is a direct appeal from the convictions of the appellant for voluntary manslaughter and conspiracy to commit voluntary manslaughter. At the time these crimes were committed,
the appellant was a 16-year-old high school student. After conducting a hearing, the trial court authorized the prosecution of the appellant as an adult. The appellant appeals from that determination, claiming the trial court erred in authorizing his prosecution as an adult.
The basis for the charges against the appellant was the result of a drive-by shooting. In this incident, the appellant, accompanied by several other gang members, fired 22 live rounds of ammunition into the home of a rival gang member. At least one of these rounds struck the victim in the neck, resulting in his death. The evidence indicated that the appellant may have fired the fatal bullet.
The appellant was originally charged as a juvenile. Subsequently, the trial court, acting under K.S.A. 1990 Supp. 38-1636(e), authorized the prosecution of the appellant as an adult.
Before reaching the issue raised by the appellant, we must first determine if we have jurisdiction to hear this appeal.
JURISDICTION
Because the notice of appeal was not filed within the time required by statute, we raise the issue of jurisdiction. We issued an order to show cause to the appellant as to why his appeal should not be dismissed for lack of jurisdiction. We ultimately requested that the parties brief the issue and present it to the court on oral argument.
"`This court has only such appellate jurisdiction as is provided by law. Jurisdiction to entertain an appeal is conferred by statute pursuant to article 3, ยง 3 of the Constitution of Kansas, and when the record discloses a lack of jurisdiction it is the duty of this court to dismiss the appeal. [Citations omitted.]'" State v. Ortiz, 230 Kan. 733, 735, 640 P.2d 1255 (1982) (quoting State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 ).
A review of the record shows that, on August 21, 1989, the appellant was ordered to be tried as an adult. On October 10, 1989, the appellant entered a plea of guilty to the crimes for which he stands convicted. He was sentenced to a term of 3 to 11 years in the custody of the secretary of corrections on November 17, 1989. A motion to modify the sentences was filed on December 12, 1989, and denied by a journal entry filed on April 27, 1990. The notice of appeal to this court was not filed until July 5, 1990.
K.S.A. 38-1681(b) provides that a juvenile may appeal from an order of adjudication or disposition, or both, but it must be done within 10 days after the entry of the order of disposition. This court in In re M.O., 13 Kan. App. 2d 381, 382, 770 P.2d 856 (1989), held that, because K.S.A. 38-1681(b) provides for an either/or situation, an appeal will be considered proper if the order is appealed at either time.
Alternatively, K.S.A. 38-1681(a)(1) allows a juvenile to appeal an order authorizing prosecution as an adult in the same manner as other criminal appeals are taken. The statute specifically provides that this may be done even where criminal prosecution has resulted in a judgment of conviction upon a plea of guilty. The general rule in this state regarding time for criminal appeals is that a defendant may appeal within 130 days from the date the sentence is orally pronounced from the bench. K.S.A. 22-3608(1) provides that, if sentence is imposed, an appeal must be taken within 10 days of the expiration of the court's power to modify the sentence. The court has 120 days from the date of sentencing to modify the sentence. K.S.A.
Page 1 2 3 4 Kansas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|