State v. Duke

53 Citing cases

  1. State v. Sims

    294 Kan. 821 (Kan. 2012)   Cited 45 times
    Holding this court has consistently declined to overrule Duke based upon the argument that the district court lacked authority to summarily deny motion to correct an illegal sentence

    Deal, 286 Kan. at 529, 186 P.3d 735. Sims first argues the district court lacked authority to summarily deny his motion to correct an illegal sentence. He urges us to overrule State v. Duke, 263 Kan. 193, 194–96, 946 P.2d 1375 (1997), in which a similar argument was raised and denied. But we have consistently declined to overrule Duke based upon the identical argument.

  2. State v. Flores

    283 Kan. 380 (Kan. 2007)   Cited 18 times
    In Flores, we concluded that under the plain language of K.S.A. 22–3504(1), a motion to correct an illegal sentence may be raised at any time.

    "          In State v. Duke, 263 Kan. 193, 946 P.2d 1375 (1997), this court addressed whether a district court could summarily deny a motion to correct an illegal sentence, in light of the statutory language investing the defendant with the rights to have a hearing, to be present at the hearing, and to have the assistance of counsel in any illegal sentence-correcting proceeding. Duke found statutory support in K.S.A. 22-4506 for the proposition that a district court should make a preliminary examination of all posttrial motions filed later than 10 days after trial to determine whether substantial questions of law or triable issues of fact are presented by the pleading.

  3. Makthepharak v. State

    298 Kan. 573 (Kan. 2013)   Cited 64 times
    Holding that a motion to correct illegal sentence under K.S.A. 22-3504 maybe dismissed without a hearing only if review of the court record conclusively shows the defendant is not entitled to relief

    For more than 20 years we have instructed district courts considering a motion to correct an illegal sentence to conduct an initial examination of the motion. See State v. Jones, 292 Kan. 910, 913, 257 P.3d 268 (2011) (citing State v. Duke, 263 Kan. 193, 194–96, 946 P.2d 1375 [1997]cert. denied––– U.S. ––––, 132 S.Ct. 1097, 181 L.Ed.2d 985 (2012); State v. Nunn, 247 Kan. 576, 584–85, 802 P.2d 547 [1990] ).

  4. State v. Hoge

    283 Kan. 219 (Kan. 2007)   Cited 52 times
    Extending the requirements of Rule 183[j] to motions to correct illegal sentence

    This court, however, has rejected such a notion. In State v. Duke, 263 Kan. 193, 946 P.2d 1375 (1997), this court stated: "Our decisions have been quite uniform in upholding the propriety of such preliminary examinations on all post-trial motions filed later than 10 days after trial.

  5. State v. Mebane

    278 Kan. 131 (Kan. 2004)   Cited 29 times
    In State v. Mebane, 278 Kan. 131, 136, 91 P.3d 1175 (2004), we applied that definition and considered the purpose of a nunc pro tunc order in the context of a motion to correct the amount of jail credit.

    [Citations omitted.]" State v. Duke, 263 Kan. 193, 194, 946 P.2d 1375 (1997). Mebane's sentence was clearly imposed by a court with jurisdiction, and his sentence is unambiguous.

  6. State v. Davis

    271 Kan. 892 (Kan. 2001)   Cited 11 times

    This makes little difference as both are treated in the same manner. See State v. Duke, 263 Kan. 193, 196, 946 P.2d 1375 (1997). In both cases, the district court is to make a preliminary examination to determine whether substantial questions of law or fact are raised, and if the findings are in the negative, the court may summarily deny the motion.

  7. State v. Johnson

    269 Kan. 594 (Kan. 2000)   Cited 38 times
    Holding that K.S.A. 22-3504"may not be used as a vehicle to breathe new life into appellate issues previously abandoned or adversely determined"

    Defendant argues that the statute grants an absolute right to counsel and a hearing and that the court's summary dismissal of the motion was error. A like argument was raised in State v. Duke, 263 Kan. 193, 946 P.2d 1375 (1997). In rejecting this claim, we stated:

  8. State v. Dawson

    43 Kan. App. 2d 800 (Kan. Ct. App. 2010)   Cited 12 times
    Recounting postconviction history of the case

    Dawson claims that a literal reading of K.S.A. 22-3504 requires the district court to appoint counsel and conduct a hearing on his motion, and that he had a right to be present at the hearing. Dawson essentially asks this court to overturn State v. Duke, 263 Kan. 193, 195-96, 946 P.2d 1375 (1997), in which our Supreme Court rejected this very argument.          Aside from the obvious problem that this court may not overturn our higher court, Dawson's appellate counsel has unsuccessfully asserted this same argument before our Supreme Court in at least 9 appeals in the past 5 years, and before panels of this court in approximately 30 appeals in that same time period.

  9. State v. Campbell

    307 Kan. 130 (Kan. 2017)   Cited 7 times
    Applying Keel , rather than Murdock I to a case which was pending as of the date of Keel 's publication

    This review does not trigger the right to counsel and the movant's right to be present. See State v. Duke, 263 Kan. 193, 196, 946 P.2d 1375 (1997). If substantial questions of law or fact are not found, the motion may be denied without a "proceeding"—i.e., a hearing at which the movant's presence would be required. 263 Kan. at 196, 946 P.2d 1375.Here, the plain language of the district court's order indicates a preliminary review was conducted and the court concluded no hearing need be held: "[I]t is hereby the Order of this Court that the defendant's Motion(s) to Correct Illegal Sentence is denied without hearing."

  10. State v. Gray

    303 Kan. 1011 (Kan. 2016)   Cited 24 times

    Gray first claims he was entitled to more than a mere summary disposition of his motion. He concedes our ample precedent against his position, e.g., State v. Duke, 263 Kan. 193 , 946 P.2d 1375 (1997). But he asks us to reverse this caselaw, arguing that the plain language of K.S.A. 22-3504 and public policy dictate that all movants should be entitled to counsel and a hearing on such motions.