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).
State v. Grimes, 622 P.2d 143 (Kan. 1981). · cites it 10ד" K.S.A. 22-3604: "(1) A defendant shall not be held in jail nor subject to an appearance bond during the pendency of an appeal by the prosecution.”
State v. McQuillen, 689 P.2d 822 (Kan. 1984). · cites it 6ד*165 K.S.A. 22-3604 provides: "(1) A defendant shall not be held in jail nor subject to an appearance bond during the pendency of an appeal by the prosecution.”
State v. Brown, 950 P.2d 1365 (Kan. 1998). · cites it 9ד“That the defendant was held subject to an appearance bond during the pendency of the appeal by the prosecution herein in violation of K.S.A. 22-3604.” 3. “That since the defendant was held subject to an appearance bond in violation of K.”
State v. Bickford, 672 P.2d 607 (Kan. 1983). · cites it 3דK.S.A. 22-3604. In State v. Freeman, 234 Kan.”
State v. Mburu, 346 P.3d 1086 (Kan. Ct. App. 2015). “2013 Supp. 223603 is triggered and the State, it argues, is allowed to file an interlocutory appeal.”
State v. Unruh, 946 P.2d 1369 (Kan. 1997). · cites it 2דWhile K.S.A. 22-3604 generally provides that a defendant shall not be held in jail or subject to an appearance bond during the pendency of an appeal by the prosecution, the defendant in this case was held in the county jail based upon one of the exceptions provided for in K.”
State v. Freeman, 670 P.2d 1365 (Kan. 1983). “Appellee has asked this court to dismiss count four of the information on the grounds he has been deprived of his right to a speedy trial and that he has been continued under bond in violation of K.S.A. 22-3604. However, there are no final orders of the district court as to…”
State v. Boling, 617 P.2d 102 (Kan. Ct. App. 1980). “However, it does appear that ordinarily when an order is made which actually “suppresses” evidence, the evidence will be of a kind which is sufficiently important to the prosecution to warrant an immediate appeal even though, under K.S.A. 22-3604, the defendant is free of any…”
Pelley v. State, 883 N.E.2d 874 (Ind. Ct. App. 2008). · cites it 2דSee Kan. Stat. Ann. § 22-3604 ("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.”
State v. Spencer Gifts, LLC, 348 P.3d 611 (Kan. Ct. App. 2015). · cites it 2ד3d 773 (2010), the court held that the time period during which the State's appeal was pending from a district court's dismissal of a complaint did not count for statutory speedy trial purposes because, under K.S.A. 22-3604(1), the defendant was not held in jail or subject to an…”
State v. White, 115 P.3d 785 (Kan. Ct. App. 2005). “According to K.S.A. 22-3604(2), the time during which an interlocutory appeal by the prosecution under K.”
State v. Galloway, 708 P.2d 508 (Kan. 1985). · cites it 2דWhere an interlocutory appeal is taken by the State, K.S.A. 22-3604 requires without equivocation that 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.”
State v. McQuillen, 689 P.2d 822 (Kan. 1984). “*165 K.S.A. 22-3604 provides: "(1) A defendant shall not be held in jail nor subject to an appearance bond during the pendency of an appeal by the prosecution.”
State v. Spencer Gifts, LLC, 348 P.3d 611 (Kan. Ct. App. 2015). “3d 773 (2010), the court held that the time period during which the State's appeal was pending from a district court's dismissal of a complaint did not count for statutory speedy trial purposes because, under K.S.A. 22-3604(1), the defendant was not held in jail or subject to an…”
State v. Brown, 950 P.2d 1365 (Kan. 1998). ““That the defendant was held subject to an appearance bond during the pendency of the appeal by the prosecution herein in violation of K.S.A. 22-3604.” 3. “That since the defendant was held subject to an appearance bond in violation of K.”
State v. McQuillen, 689 P.2d 822 (Kan. 1984). “*165 K.S.A. 22-3604 provides: "(1) A defendant shall not be held in jail nor subject to an appearance bond during the pendency of an appeal by the prosecution.”
State v. Grimes, 622 P.2d 143 (Kan. 1981). “" K.S.A. 22-3604: "(1) A defendant shall not be held in jail nor subject to an appearance bond during the pendency of an appeal by the prosecution.”
State v. Brown, 950 P.2d 1365 (Kan. 1998). ““That the defendant was held subject to an appearance bond during the pendency of the appeal by the prosecution herein in violation of K.S.A. 22-3604.” 3. “That since the defendant was held subject to an appearance bond in violation of K.”
State v. White, 115 P.3d 785 (Kan. Ct. App. 2005). “According to K.S.A. 22-3604(2), the time during which an interlocutory appeal by the prosecution under K.”
State v. Unruh, 946 P.2d 1369 (Kan. 1997). “While K.S.A. 22-3604 generally provides that a defendant shall not be held in jail or subject to an appearance bond during the pendency of an appeal by the prosecution, the defendant in this case was held in the county jail based upon one of the exceptions provided for in K.”
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