Opinion
No. 107,747.
2013-03-8
CITY OF WELLINGTON, Appellee, v. Eddie MENDIA, Appellant.
Appeal from Sumner District Court; R. Scott McQuin, Judge. Eddie Mendia, appellant pro se. Kerwin L. Spencer, city prosecutor, for appellee.
Appeal from Sumner District Court; R. Scott McQuin, Judge.
Eddie Mendia, appellant pro se. Kerwin L. Spencer, city prosecutor, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Eddie Mendia appeals his conviction for failing to yield the right of way. Mendia received a fine and assessment of court costs as his punishment for his conviction. Because he has paid the fine and court costs, we hold that Mendia has acquiesced in the judgment, thereby depriving this court of any appellate jurisdiction. Accordingly, we dismiss this appeal.
In November 2008, Mendia was convicted of failing to yield the right of way in violation of Section 58 of the Wellington City municipal code in Wellington Municipal Court. The municipal court imposed a fine plus court costs. Mendia appealed his conviction to the Sumner County District Court. In district court, Mendia appeared pro se at a trial de novo in February 2009. After taking evidence on the matter, the district court found Mendia guilty. Mendia then paid the $60 fine and the municipal court costs of $59.50.
Mendia did not file a direct appeal of the district court's verdict. Instead, in January 2012 he filed a pro se motion for a new trial under K.S.A. 22–3501 and K.S.A. 60–1507 based upon “newly discovered evidence.” After considering the arguments on the motion, the district court denied the same. The district court ruled there was no liberty interest at stake justifying relief under K.S.A. 60–1507 and Mendia had filed his motion beyond the 2 years permitted under K.S.A. 22–3501(1).
Collateral relief under K.S.A. 60–1507(a) is only available to “[a] prisoner in custody under sentence of a court.” (Emphasis added.) See State v. Stough, 273 Kan. 113, 116, 119, 41 P.3d 281 (2002), where the court held that relief is not available to a movant under K.S.A. 60–1507 when the movant is not in custody under a sentence. See also Supreme Court Rule 183(c)(1) (2012 Kan. Ct. R. Annot. 275), which provides that “[t]he provisions of K.S.A. 60–1507 may be invoked only by a person in custody claiming the right to be released.”
Applying those principles here, we note that Mendia was neither in custody when his motion was filed nor at any point of the proceedings because Mendia received only a fine for his conviction. Accordingly, the district court lacked jurisdiction to entertain Mendia's motion under K.S.A. 60–1507. See Johnson v. State, 4 Kan.App.2d 573, 574–75, 608 P.2d 1044 (1980), where the court held the district court was without jurisdiction to decide the defendant's motion challenging a sentence already served because the defendant was not in custody within the meaning of K.S.A. 60–1507(a).
Obviously, if the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. See State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
Finally, we note that Mendia has paid his fine and costs in full. In State v. Morse, 191 Kan. 328, 329, 380 P.2d 310 (1963), the defendant pled guilty in district court to driving an automobile while under the influence of intoxicating liquor and transporting an open bottle. The defendant served 3 days of the sentence, accepted parole for the remainder of his sentence, and paid the fine and costs before filing a motion to withdraw his plea and vacate the judgment. The district court subsequently granted defendant's motion. The Kansas Supreme Court held that the defendant had waived the right to appeal through acquiescence in the judgment. 191 Kan. at 330.
Like Morse, Mendia's act of satisfying the district court sentence by paying the fine and court costs in full cuts off the right of appellate review. The fact that the district court considered Mendia's motion and denied him relief does not change the character of Mendia's express consent to the validity of his conviction by acquiescing in the judgment. The party that voluntarily complies with a judgment should not be permitted to pursue an inconsistent position by appealing from that judgment. Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1271, 136 P.3d 457 (2006).
Appeal dismissed.