22-3610. Hearing on appeal; exception. (a) When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint, unless the complaint shall be found defective, in which case the court may order a new complaint to be filed and the case shall proceed as if the original complaint had not been set aside. The case shall be tried de novo in the district court.
(b) Notwithstanding subsection (a), appeal from a conviction rendered pursuant to subsection (b) of K.S.A. 12-4416 shall be conducted only on the record of the stipulation of facts relating to the complaint.
History: L. 1970, ch. 129, § 22-3610; L. 1982, ch. 144, § 20; July 1.
Source or Prior Law:
63-402.
Law Review and Bar Journal References:
Traffic cases and license problems. William M. Ferguson, 39 J.B.A.K. 351, 352 (1970).
Constitutionality of the use of lay judges in Kansas, 25 K.L.R. 275, 276 (1977).
"A Comment on Kansas' New Drunk Driving Law," Joseph Brian Cox and Donald G. Strole, 51 J.K.B.A. 230, 242 (1982).
"The New Kansas Drunk Driving Law: A Closer Look," Matthew D. Keenan, 31 K.L.R. 409 (1983).
"An Attitudinal Study of Kansas' Two-Tier Trial System," Michael Kaye, Fred Yaffe, 54 J.K.B.A. 212 (1985).
Attorney General's Opinions:
Driving while under influence of alcohol; imposition by municipal courts of penalties for second, third and subsequent violations. 82-155.
CASE ANNOTATIONS
1. Absolute right to trial de novo not violative of due process merely because enhanced penalty imposed. State v. Parker, 213 Kan. 229, 230, 233, 516 P.2d 153.
2. Appeal from invalid attempted resentencing properly dismissed. State v. Kelly, 213 Kan. 237, 240, 515 P.2d 1030.
3. Cited; error to dismiss complaints because municipal court refused to appoint and compensate counsel for indigent defendants' appeals. City of Overland Park v. Estell & McDiffett, 225 Kan. 599, 602, 592 P.2d 909.
4. Cited; the right to speedy trial is applicable to criminal cases appealed to district courts from municipal court convictions. City of Overland Park v. Fricke, 226 Kan. 496, 499, 500, 601 P.2d 1130.
5. State may reassert original (more serious) charge if defendant appeals conviction of lesser charge based on plea bargain. State v. Burkett, 231 Kan. 686, 688, 648 P.2d 716 (1982).
6. Statute, being integral part of whole subject of act (L. 1982, ch. 144), not violative of Kansas Constitution, article 2, § 16. State v. Reves, 233 Kan. 972, 976, 980, 666 P.2d 1190 (1983).
7. Filing of complaint mandatory in municipal court; case appealed to district court does not confer original jurisdiction. Seaton v. City of Coffeyville, 9 Kan. App. 2d 760, 761, 688 P.2d 1240 (1984).
8. Cited; incorporating statute in ordinance by reference and "or any amendments thereto" meets requirements of K.S.A. 12-3010. City of Overland Park v. McLaughlin, 10 Kan. App. 2d 537, 538, 704 P.2d 997 (1985).
9. Cited; absence of defendant or counsel at misdemeanor appeal trial (K.S.A. 22-3405) where untimely request for jury (K.S.A. 22-3609) made discussed. City of Overland Park v. Barnett, 10 Kan. App. 2d 586, 593, 705 P.2d 564 (1985).
10. Generally held if constitutional rights are at issue, habeas corpus is available even though no direct appeal taken. In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 205, 708 P.2d 977 (1985).
11. Failure of court officer to take procedural steps after appeal filed as not defeating appeal examined. City of Overland Park v. Pavelcik, 248 Kan. 444, 446, 806 P.2d 969 (1991).
12. Period for timely filing notice of appeal from judgment of magistrate court (K.S.A. 22-3609a) examined. State v. Wilson, 15 Kan. App. 2d 308, 312, 808 P.2d 434 (1991).
13. Prosecution may amend complaint virtually at will between trial at municipal court level and district court level. City of Topeka v. Mayer, 16 Kan. App. 2d 567, 568, 826 P.2d 527 (1992).
14. Cited in holding that appeals from municipal court on questions of law are limited to issues of statewide interest. City of Overland Park v. Travis, 253 Kan. 149, 151, 853 P.2d 47 (1993).
15. State is not entitled to de novo preliminary hearing when magistrate dismisses criminal case for lack of probable cause. State v. Kleen, 257 Kan. 911, 914, 896 P.2d 376 (1995).
16. Collateral estoppel does not bar relitigation of issues decided in administrative driver's license suspension hearing. City of Manhattan v. Huncovsky, 22 Kan. App. 2d 189, 191, 913 P.2d 227 (1996).
17. Municipal court defendant has no right to appeal to district court for revocation of municipal court probation. City of Wichita v. Patterson, 22 Kan. App. 2d 557, 559, 919 P.2d 1047 (1996).
18. Appeal from municipal court to district court has all of charges contained in original complaint before district court without refiling of charges dismissed by municipal court. City of Wichita v. Maddox, 271 Kan. 445, 24 P.3d 71 (2001).
19. Original complaint filed by city not fatally defective; city may not amend complaint upon appeal. City of Wichita v. Marlett, 31 Kan. App. 2d 360, 65 P.3d 547 (2003).
20. A defendant has a right to appeal judgment before a district magistrate judge even if defendant pled guilty. State v. Gillen, 39 Kan. App. 2d 461 to 464, 469, 181 P.3d 564 (2008).
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