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22-3208. Pleadings and motions. (1) Pleadings in criminal proceedings shall be the complaint, information or indictment, the bill of particulars when ordered, and the pleas of not guilty, guilty or with the consent of the court, nolo contendere. All other pleas, demurrers and motions to quash are abolished and defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief.

(2) Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.

(3) Defenses and objections based on defects in the institution of the prosecution or in the complaint, information or indictment other than that it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the complaint, information or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding.

(4) The motion to dismiss shall be made at any time prior to arraignment or within 21 days after the plea is entered. The period for filing such motion may be enlarged by the court when it shall find that the grounds therefor were not known to the defendant and could not with reasonable diligence have been discovered by the defendant within the period specified herein. A plea of guilty or a consent to trial upon a complaint, information or indictment shall constitute a waiver of defenses and objections based upon the institution of the prosecution or defects in the complaint, information or indictment other than it fails to show jurisdiction in the court or to charge a crime.

(5) A motion before trial raising defenses or objections to prosecution shall be determined before trial unless the court orders that it be deferred for determination at the trial.

(6) If a motion is determined adversely to the defendant, such defendant shall then plead if such defendant had not previously pleaded. A plea previously entered shall stand. If the court grants a motion based on a defect in the institution of the prosecution or in the complaint, information or indictment, it may also order that the defendant be held in custody or that the defendant's appearance bond be continued for a specified time not exceeding one day pending the filing of a new complaint, information or indictment.

(7) Any hearing conducted by the court to determine the merits of any motion may be conducted by two-way electronic audio-video communication between the defendant and defendant's counsel in lieu of personal presence of the defendant and defendant's counsel in the courtroom in the discretion of the court. The defendant shall be informed of the defendant's right to be personally present in the courtroom during such hearing if the defendant so requests. Exercising the right to be present shall in no way prejudice the defendant.

History: L. 1970, ch. 129, § 22-3208; L. 1989, ch. 98, § 3; L. 2010, ch. 135, § 18; July 1.

Source or Prior Law:

62-1306, 62-1436.

Law Review and Bar Journal References:

"Plea Bargaining—Justice Off the Record," Robert L. Heath, 9 W.L.J. 430, 441 (1970).

Plea of nolo contendere added to bring Kansas procedure into conformity with the federal rules, Richard H. Seaton and Paul E. Wilson, 39 J.B.A.K. 97, 166 (1970).

Pleading alternatives, symposium on criminal procedure, Robert E. Lastelic, 18 K.L.R. 729 (1970).

"Kansas Diversion: Defendant's Remedies and Prosecutorial Opportunities," Joseph Brian Cox, 20 W.L.J. 344, 354 (1981).

"Review Proceedings," K.L.R., Criminal Procedure Edition, 37 (1989).

Survey of Recent Cases, 45 K.L.R. 1397 (1997).

Criminal Procedure Edition, 47 K.L.R. 937 (1999).

"An ounce of Prevention...," Robert W. Parnacott, 68 J.K.B.A. No. 10, 36 (1999).

"Criminal Procedure Survey of Recent Cases," 50 K.L.R. 901 (2002).

"Criminal Procedure Survey of Recent Cases," Matt Corbin, Editor, 51 K.L.R. 659, 758 (2003).

"Motions in Limine: Where Evidence Stands on the Threshold," Derek S. Casey, J.K.T.L.A. Vol. 29, No. 4, 4 (2006).

CASE ANNOTATIONS

1. Sufficiency of preliminary examination may be challenged only pursuant to this section. State v. Smith, 215 Kan. 34, 37, 523 P.2d 691.

2. Motion to dismiss hereunder upheld; information did not state criminal offense. State v. Bishop, 215 Kan. 481, 482, 524 P.2d 712.

3. Failure to move for severance of offenses prior to trial constituted waiver to joinder. State v. Townsley, 217 Kan. 102, 103, 535 P.2d 1.

4. Preliminary hearing reviewed and found sufficient; purpose of hearing is not complete and unlimited discovery. State v. Adams, 218 Kan. 495, 499, 545 P.2d 1134.

5. Applied; contention complaint could not be refiled after dismissal, without showing of newly discovered evidence, rejected. State v. Henry, 219 Kan. 310, 312, 548 P.2d 808.

6. Defendant failed to challenge information prior to trial; defects waived. State v. Lucas, 221 Kan. 88, 90, 557 P.2d 1296.

7. Reference in information to prior conviction of heroin possession not error; notice; when proof offered. State v. Loudermilk, 221 Kan. 157, 557 P.2d 1229.

8. Lack of probable cause for a warrantless arrest can be objected to only by motion before trial. State v. Brocato, 222 Kan. 201, 202, 563 P.2d 470.

9. Cited; plea of guilty or consent to trial is waiver of defenses and objections to defective complaint. State v. Marshall & Brown-Sidorowicz, 2 Kan. App. 2d 182, 194, 577 P.2d 803.

10. Order granting motion for acquittal under K.S.A. 22-3419, after guilty verdict, not appealable. State v. Crozier, 225 Kan. 120, 122, 587 P.2d 331.

11. Failure to raise question of sufficiency of preliminary examination by motion to dismiss hereunder constitutes waiver and precludes appellate review. State v. Smith, 225 Kan. 796, 798, 594 P.2d 218.

12. Motion in limine discussed in detail; guidelines for use spelled out. State v. Quick, 226 Kan. 308, 310, 597 P.2d 1108.

13. Subsection (4) cited; motion to dismiss made after preliminary examination but before arraignment; double jeopardy defense not waived. In re Berkowitz, 3 Kan. App. 2d 726, 731, 602 P.2d 99.

14. Cited in dismissing objection based on lack of probable cause for warrantless arrest. State v. Wright, 4 Kan. App. 2d 196, 197, 603 P.2d 1034.

15. Defendant must pursue remedy hereunder or it is waived. State v. Allen, 5 Kan. App. 2d 31, 34, 611 P.2d 605.

16. Sufficiency of preliminary hearing, including timeliness may be challenged only by motion hereunder; failure to raise question on sufficiency of hearing constitutes waiver and precludes review. State v. Weigel, 228 Kan. 194, 201, 612 P.2d 636.

17. Consideration of waiver of right against double jeopardy refused; issue not raised at trial level. State v. Fisher, 233 Kan. 29, 31, 34, 661 P.2d 791 (1983).

18. Subsection (1) abolishes plea of abatement on preliminary hearing; procedure now requires motion to dismiss or grant appropriate relief; binding over not a judgment which can be appealed. State v. Lashley, 233 Kan. 620, 624, 664 P.2d 1358 (1983).

19. Cited in holding hearsay evidence, if substantial basis for credibility, may form basis for probable cause in preliminary hearing. State v. Cremer, 8 Kan. App. 2d 699, 666 P.2d 1200 (1983).

20. Strict adherence to rules in K.S.A. 60-401 et seq. not required at preliminary examination. State v. Cremer, 234 Kan. 594, 596, 676 P.2d 59 (1984).

21. Defendant's objection that complaint is duplicitous must be made in accordance with statute. State v. Waufle, 9 Kan. App. 2d 68, 71, 673 P.2d 109 (1983).

22. Cited in holding prior DUI conviction not element of crime under K.S.A. 8-1567. State v. Helgeson, 235 Kan. 534, 536, 680 P.2d 910 (1984).

23. Cited; conviction of obstructing legal process (K.S.A. 21-3808) charged on traffic violation from (K.S.A. 8-2106) reversed for lack of jurisdiction. State v. Shofler, 9 Kan. App. 2d 696, 698, 687 P.2d 29 (1984).

24. Defendants failed to file pretrial motion alleging discriminatory and selective law enforcement. State v. Weniger, 9 Kan. App. 2d 705, 706, 687 P.2d 643 (1984).

25. Cited in holding attorney hired under K.S.A. 19-717 not special prosecutor under K.S.A. 22-2202(17); cannot appeal dismissal of complaint. State v. Berg, 236 Kan. 562, 566, 694 P.2d 427 (1985).

26. If challenge of preliminary hearing by motion to dismiss not made before trial, right waived and appeal precluded. State v. Matzke, 236 Kan. 833, 839, 696 P.2d 396 (1985).

27. Denial of motion to dismiss; holding hearing required by K.S.A. 60-460(dd)(2) prior to trial on merits cured failure to make determination before preliminary hearing. State v. Myatt, 237 Kan. 17, 28, 697 P.2d 836 (1985).

28. Failure of information to state offense is fundamental defect which can be raised any time; other objections must be timely. State v. Bird, 238 Kan. 160, 166, 168, 708 P.2d 946 (1985).

29. Cited; theft (K.S.A. 21-3701) as independent from welfare fraud (K.S.A. 39-720), sufficiency of charge examined. State v. Micheaux, 242 Kan. 192, 196, 747 P.2d 784 (1987).

30. Cited; sufficiency of complaint based on theory of defendant's individual responsibility for corporate crime examined. State v. Jones, 242 Kan. 385, 395, 748 P.2d 839 (1988).

31. Cited; waiver of verified complaint for DUI (K.S.A. 8-1567) and certain other violations examined. State v. Fraker, 242 Kan. 466, 468, 748 P.2d 868 (1988).

32. Cited; effect of guilty plea or consent to trial upon complaint, information or indictment based on defects examined. State v. Rasch, 243 Kan. 495, 500, 758 P.2d 214 (1988).

33. Guilty or nolo contendere plea does not waive jurisdictional defenses. State v. Browning, 245 Kan. 26, 27, 774 P.2d 935 (1989).

34. State has right to appeal (K.S.A. 22-3602, 22-3603) where court incorrectly characterized dismissal as judgment of acquittal. State v. Ruden, 245 Kan. 95, 100, 774 P.2d 972 (1989).

35. Possibility that trial may have taken different course if misjoinder issue raised noted. State v. Trotter, 245 Kan. 657, 659, 783 P.2d 1271 (1989).

36. Nolo contendere plea to underlying charge as constituting waiver of statute of limitations defense (K.S.A. 21-3106) determined. Lowe v. State, 14 Kan. App. 2d 119, 121, 783 P.2d 1313 (1990).

37. Complaint signed by legal intern not an issue on appeal absent trial objection and good cause shown. State v. Land, 14 Kan. App. 2d 515, 794 P.2d 668 (1990).

38. Trial court's duty to note defects in information or indictment examined. State v. Hall, 246 Kan. 728, 730, 764, 793 P.2d 737 (1990).

39. Time to raise questions or objections based on defects in instituting prosecution or complaint, information or indictment examined. State v. Graham, 247 Kan. 388, 394, 799 P.2d 1003 (1990).

40. Defendant precluded from raising on appeal issue of sufficiency of evidence at preliminary hearing when no motion filed hereunder. State v. Ribadeneira, 15 Kan. App. 2d 734, 758, 817 P.2d 1105 (1991).

41. Whether lack of an objection waives court's duty to recognize jurisdictional defects at any time during proceeding examined. City of Overland Park v. McBride, 253 Kan. 774, 775, 861 P.2d 1316 (1993).

42. Whether nolo contendere plea waives defendant's right to claim double jeopardy examined. In re Habeas Corpus Application of Coulter, 18 Kan. App. 2d 795, 797, 860 P.2d 51 (1993).

43. Whether defendant's voluntary intoxication negated specific intent necessary for multiple convictions examined. State v. Pratt, 255 Kan. 767, 769, 876 P.2d 1390 (1994).

44. Trial court jury instruction on charge not contained in information violated defendant's substantive due process rights. State v. Thompkins, 263 Kan. 602, 621, 627, 952 P.2d 1338 (1998).

45. Motion to dismiss construed as challenge to sufficiency of complaint and therefore timely. State v. Seabury, 267 Kan. 431, 434, 985 P.2d 1162 (1999).

46. Defendant can attack charging instrument on jurisdictional grounds notwithstanding waiver statute. Beem v. McKune, 317 F.3d 1175, 1184 (2002).

47. Double rule of K.S.A. 21-4720 does not apply to cases consolidated for trial under K.S.A. 22-3208. State v. McCurry, 279 Kan. 118, 105 P.3d 1247 (2005).

48. Allegations of multiplicity in violation of double jeopardy may be considered for first time on appeal. State v. Harris, 284 Kan. 560, 569, 162 P.3d 28 (2007).

49. Cited in opinion holding that juveniles have a constitutional right to jury trials. In re L.M., 286 Kan. 460, 467, 186 P.3d 164 (2008).

50. Failure to allow defendant to be present at hearing where defense counsel sought a continuance that defendant did not agree with was error; delay in speedy trial calculation should not have been counted against defendant. State v. Brownlee, 302 Kan. 491, 508, 354 P.3d 525 (2015).


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