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State v. Tripp
Citations: 699 P.2d 33; 237 Kan. 244; 1985 Kan. LEXIS 368Docket: 56,820
Court: Supreme Court of Kansas; May 10, 1985; Kansas; State Supreme Court
Cedric Tripp appealed his jury conviction for rape, asserting that the sexual intercourse was consensual. The State challenged the timeliness of the appeal, arguing it was filed after the statutory deadline. Tripp was found guilty on August 26, 1982, sentenced on September 24, 1982, and granted probation, which was revoked on July 29, 1983. He filed a motion for modification of sentence on November 18, 1983, which was denied on February 16, 1984. Tripp's notice of appeal was submitted on February 24, 1984, over a year after the original sentence and nearly six months after probation revocation. The State contended that the appeal was untimely under K.S.A. 22-3608(1), asserting that the district court's modification power ended 120 days post-sentencing. Conversely, Tripp argued that K.S.A. 1984 Supp. 21-4603 allowed an appeal within 120 days of probation revocation, making his appeal timely since it followed the ruling on his modification motion. Relevant statutes regarding probation and appeal rights were cited, noting that acceptance of probation does not waive the right to appeal. K.S.A. 22-3608 establishes that a defendant has ten days to appeal a district court judgment after the court's power to modify a sentence expires. The ability to revoke or modify probation does not equate to modifying the sentence itself. If a sentence is suspended, the defendant can appeal within ten days of the suspension order. In this case, the defendant's appeal arises solely from alleged errors in the initial trial, not from probation issues. The statute K.S.A. 1984 Supp. 21-4603(3) does not grant the right to appeal an original conviction after probation has been revoked, especially if that revocation occurs more than 130 days post-sentencing. Appeals must be filed within statutory time limits, which means an appeal of the original conviction must occur within 120 days of sentencing, plus an additional 10 days under K.S.A. 22-3608(1). The court concluded that the legislature did not intend for defendants to appeal trial errors after lengthy delays post-conviction due to probation revocation. As the defendant did not appeal within the required timeframe, the court lacks jurisdiction to hear the appeal, resulting in its dismissal.