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22-3604. Release of defendant pending appeal by prosecution. (1) Except as provided in subsection (3), a defendant shall not be held in jail nor subject to an appearance bond during the pendency of an appeal by the prosecution.

(2) The time during which an appeal by the prosecution is pending shall not be counted for the purpose of determining whether a defendant is entitled to discharge under K.S.A. 22-3402, and amendments thereto. For purposes of this section, "an appeal by the prosecution" includes, but is not limited to, appeals authorized by subsection (b) of K.S.A. 22-3602, and amendments thereto, appeals authorized by K.S.A. 22-3603, and amendments thereto, and any appeal by the prosecution which seeks discretionary review in the supreme court of Kansas or the United States supreme court. Such an appeal remains "pending" until final resolution by the court of last resort.

(3) A defendant charged with a class A, B or C felony or, if the felony was committed on or after July 1, 1993, an off-grid felony, a nondrug severity level 1 through 5 felony or a drug severity level 1 through 4 felony crime shall not be released from jail or the conditions of such person's appearance bond during the pendency of an appeal by the prosecution. The time during which an appeal by the prosecution is pending in a class A, B or C felony or, if the felony was committed on or after July 1, 1993, an off-grid felony, a nondrug severity level 1 through 5 felony or a drug severity level 1 through 4 felony case shall not be counted for the purpose of determining whether the defendant is entitled to discharge under K.S.A. 22-3402, and amendments thereto.

History: L. 1970, ch. 129, § 22-3604; L. 1990, ch. 111, § 1; L. 1994, ch. 291, § 64; L. 2009, ch. 61, § 3; L. 2012, ch. 150, § 42; July 1.

CASE ANNOTATIONS

1. Trial court order excluding "other crimes" evidence not an order suppressing evidence; appellate court has no jurisdiction to hear appeal by state. State v. Boling, 5 Kan. App. 2d 371, 374, 617 P.2d 102.

2. Time that unauthorized interlocutory appeal by the state is pending and time secured by the defendant to respond not charged against accused in computing time limit for speedy trial; judgment affirmed. State v. Grimes, 229 Kan. 143, 144, 622 P.2d 143.

3. Where trial court has not issued final orders on remaining count of information, appellate court has no jurisdiction over speedy trial question. State v. Freeman, 234 Kan. 278, 282, 670 P.2d 1365 (1983).

4. Cited in holding state has no right to appeal partial dismissal of complaint while remainder pending. State v. Bickford, 234 Kan. 507, 510, 672 P.2d 607 (1983).

5. Cited; delay from authorized interlocutory appeal (K.S.A. 22-3603) should not count in determining defendant's constitutional right to speedy trial. State v. Galloway, 238 Kan. 100, 104, 106, 708 P.2d 508 (1985).

6. Time delay caused by state's unauthorized interlocutory appeal charged to the state for speedy trial purposes. State v. Unruh, 263 Kan. 185, 189, 191, 946 P.2d 1369 (1997).

7. Time which prosecution's interlocutory appeal is pending is not counted for speedy trial purposes. State v. Brown, 263 Kan. 759, 761, 763, 950 P.2d 1365 (1998).

8. In case involving interlocutory appeal, time after receiving mandate from appellate court plus time from arraignment to filing of appeal results in delay over 180-day limit of K.S.A. 22-3402. State v. White, 34 Kan. App. 2d 182, 115 P.3d 785 (2005).

9. Cited; motion to correct alleged illegal sentence denied summarily is upheld; issue res judicata. State v. Conley, 287 Kan. 696 to 698, 701 to 703, 197 P.3d 837 (2008).

10. When the State appeals the dismissal of complaint, the time during an appeal shall not count against the State for speedy trial purposes. State v. Blizzard, 43 Kan. App. 2d 418, 225 P.3d 773 (2010).

11. Appellate courts do not have jurisdiction to consider the state's appeal solely on the claim that a sentence is illegal under K.S.A. 22-3604 because jurisdiction must arise from K.S.A. 22-3602. State v. McCroy, 57 Kan. App. 2d 643, 649, 458 P.3d 988 (2020).


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