K.S.A. » Chapter 22

K.S.A. § 22-3208

Pleadings and motions

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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.

Notes of Decisions
Cited in 113 cases (16 in the last 5 years), 1978–2026 · leading case: State v. Dunn
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State v. Dunn (2016) kan · cites it 13× “Since 1970, K.S.A. 22-3208 has discussed at least some of the ways in which a defendant should challenge an error in the commencement of a prosecution.”
State v. Lowery (2018) kan · cites it 3× “In addition, K.S.A. 2016 Supp. 22-3208(7) provides defendants the 'right to be present at a hearing on any motion,' though this right might be greater in scope than the constitutional right to be present.”
State v. Brownlee (2015) kan · cites it 5× “Failure to allow the defendant to be present at a motion hearing in this case was error under K.S.A. 2014 Supp. 22-3208(7), and the defendant did not acquiesce in a continuance sought by defense counsel at that hearing.”
State v. Barlow (2016) kan · cites it 3× ““The State directs the court’s attention to K.S.A. 22-3208(4), which provides that ‘consent to trial upon a complaint, information or indictment shall constitute a waiver of defenses and objections based upon the institution of tire prosecution .”
State v. Thompkins (1998) kan · cites it 10× “The court found that Smith's failure to question the sufficiency of the preliminary examination by a motion to dismiss pursuant to K.S.A. 22-3208 constituted a waiver of that issue on appeal.”
State v. Bolze-Sann (2015) kan · cites it 5× “Failure to comply with the time limitation for filing a motion to dismiss as specified in K.S.A. 22-3208(4) constitutes a waiver of the issues and precludes review on appeal.”
State v. Mays (2004) kan · cites it 2× “*369 The McClain court further held that the timeliness of a preliminary hearing may be challenged only by a motion to dismiss filed pursuant to K.S.A. 22-3208 and no later than 20 days after arraignment.”
State v. Crozier (1978) kan · cites it 4× “A motion to dismiss is provided for in K.S.A. 22-3208 (1), which declares, in substance, that, with the exception of the pleas of not guilty, guilty, or nolo contendere, all other pleas, demurrers, and motions to quash are abolished, and defenses and objections raised before…”
State v. Seabury (1999) kan · cites it 8× “” With respect to question (2), we characterize Seabuiy s motion to dismiss as a timely objection to prosecution under K.S.A. 22-3208(3). The answer to question (3) is “no.”
State v. Weigel (1980) kan · cites it 3× “Sufficiency of the preliminary hearing including its timeliness may be challenged only by motion to dismiss under K.S.A. 22-3208. State v. Smith, 215 Kan. 34, 37, 38 , 523 P.”
Ferguson v. State (2003) kan · cites it 2× “Iler attorney failed to move for dismissal of the Information under K.S.A. 22-3208 or to arrest judgment under K.”
State v. Bird (1985) kan · cites it 3× “At no time did the defendant move for a bill of particulars or move to dismiss or quash the complaint pursuant to K.S.A. 22-3208(3). On July 20, 1984, a journal entry was filed which contained an amended information charging: “[T]hat during the month of May, 1983 in Lyon County,…”
Show all 113 citing cases →
— K.S.A. § 22-3208(1) — 4 cases
State v. Lashley (1983) kan
State v. Fisher (1983) kan
State v. Berg (1985) kan
In Re the Care & Treatment of Palmer (2011) kanctapp
— K.S.A. § 22-3208(2) — 2 cases
State v. Allen (2013) kanctapp
State v. Bunyard (2020) kanctapp
— K.S.A. § 22-3208(3) — 38 cases
State v. Dunn (2016) kan “Since 1970, K.S.A. 22-3208 has discussed at least some of the ways in which a defendant should challenge an error in the commencement of a prosecution.”
State v. Bird (1985) kan “At no time did the defendant move for a bill of particulars or move to dismiss or quash the complaint pursuant to K.S.A. 22-3208(3). On July 20, 1984, a journal entry was filed which contained an amended information charging: “[T]hat during the month of May, 1983 in Lyon County,…”
State v. Calvin (2005) kan
State v. Trotter (2013) kan
State v. Sims (1993) kan
— K.S.A. § 22-3208(4) — 32 cases
State v. Dunn (2016) kan “Since 1970, K.S.A. 22-3208 has discussed at least some of the ways in which a defendant should challenge an error in the commencement of a prosecution.”
State v. Barlow (2016) kan ““The State directs the court’s attention to K.S.A. 22-3208(4), which provides that ‘consent to trial upon a complaint, information or indictment shall constitute a waiver of defenses and objections based upon the institution of tire prosecution .”
State v. Bolze-Sann (2015) kan “Failure to comply with the time limitation for filing a motion to dismiss as specified in K.S.A. 22-3208(4) constitutes a waiver of the issues and precludes review on appeal.”
State v. Keys (2022) kan
State v. Moody (2006) kan
— K.S.A. § 22-3208(5) — 1 case
State v. Hardy (2015) kanctapp
— K.S.A. § 22-3208(6) — 2 cases
State v. Dunn (2016) kan “Since 1970, K.S.A. 22-3208 has discussed at least some of the ways in which a defendant should challenge an error in the commencement of a prosecution.”
State v. Dunn (2016) kan
— K.S.A. § 22-3208(7) — 10 cases
State v. Lowery (2018) kan “In addition, K.S.A. 2016 Supp. 22-3208(7) provides defendants the 'right to be present at a hearing on any motion,' though this right might be greater in scope than the constitutional right to be present.”
State v. Brownlee (2015) kan “Failure to allow the defendant to be present at a motion hearing in this case was error under K.S.A. 2014 Supp. 22-3208(7), and the defendant did not acquiesce in a continuance sought by defense counsel at that hearing.”
State v. Dupree (2016) kan
State v. Owens (2019) kan
State v. James (2019) kan
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