Opinion
No. 105,890.
2012-05-25
STATE of Kansas, Appellant, v. Stacy Jo LANNING–HERREN, Appellee.
Appeal from Pratt District Court; Robert J. Schmisseur, Judge. Gaten T. Wood, assistant county attorney, and Derek Schmidt, attorney general, for appellant. Janine Cox, of Kansas Appellate Defender Office, for appellee.
Appeal from Pratt District Court; Robert J. Schmisseur, Judge.
Gaten T. Wood, assistant county attorney, and Derek Schmidt, attorney general, for appellant. Janine Cox, of Kansas Appellate Defender Office, for appellee.
Before GREENE, C.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM:
The State of Kansas appeals from the district court's decision not to impose a 30–day jail sentence as a condition of Stacy Jo Lanning–Herren's probation, which it argues was required as a result of her second conviction for forgery. But the State fails to provide a factual or legal basis upon which to find it proper for us to exercise jurisdiction over the issue presented. Accordingly, we must dismiss the appeal.
Facts
Lanning–Herren pled guilty to forgery (second offense) in violation of K.S.A. 21–3710. At sentencing, the State asked the district court to impose an underlying 10–month prison sentence, apply 37 days of jail-time credit to that underlying sentence, place Lanning–Herren on probation with community corrections, and impose a $1,000 fine. Pursuant to K.S.A. 21–3710(b)(3) (sentencing provisions for a second forgery conviction), the State also requested that Lanning–Herren serve 30 days in jail as a condition of probation. Lanning–Herren opposed the State's request for additional jail time, arguing that the 37 days she spent in jail prior to sentencing satisfied the statutory requirement that she serve at least a 30–day jail sentence as a condition of her probation.
The district court ultimately imposed an underlying prison sentence of 10 months, placed Lanning–Herren on probation for 18 months, and ordered her to pay a $1,000 fine. Because Lanning–Herren spent 37 days in jail prior to sentencing, the district court concluded that the mandatory minimum 30–day jail sentence of K.S.A. 21–3710(b)(3) was satisfied. Thus, no jail sentence was imposed as a condition of Lanning–Herren's probation.
The State appealed from the district court's decision not to impose the 30–day jail sentence. In its docketing statement, the State cited K.S.A. 22–3602(b)(3) (question reserved by the prosecution) as the jurisdictional authority for bringing the appeal. In its later brief, however, the State fails to make any reference to jurisdiction at all, let alone provide a factual or legal basis for jurisdiction based on a question reserved. Given the State's failure in this regard, Lanning–Herren argues in her response brief that the State's appeal should be dismissed. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (An issue not briefed by the appellant is deemed waived and abandoned.). Although a copy of Lanning–Herren's brief was served upon the State, the State filed no reply brief with this court.
Analysis
“Kansas courts accept appeals on questions reserved when the issues are matters of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes but will not consider such appeals when the resolution of the question would not provide helpful precedent.” State v. Finch, 291 Kan. 665, Syl. ¶ 1, 244 P.3d 673 (2011). If this standard is not satisfied, an appellate court will not exercise jurisdiction over an appeal brought under K.S.A. 22–3602(b)(3). State v. Skolaut, 286 Kan. 219, 224–26, 182 P.3d 1231 (2008); State v. Tremble, 279 Kan. 391, 393–94, 109 P.3d 1188 (2005).
The State, even after it was put on notice by Lanning–Herren, failed to brief whether the issue raised in its appeal should be addressed as a question reserved under K.S.A. 22–3602(b)(3). We construe the State's failure to brief an issue essential for determining whether to exercise jurisdiction over its appeal as a decision by the State to waive and abandon its appeal of the district court's decision. See McCaslin, 291 Kan. at 709. Even if we did not construe the State's actions as waiver or abandonment, the State has failed to provide any factual or legal basis upon which we can properly exercise jurisdiction. For both of these reasons, we find no basis to exercise jurisdiction over the issue presented by the State on appeal. See State v. Attwood, No. 100,748, 2009 WL 1766514, at *2 (Kan.App.2009) (unpublished opinion) (panel held that by failing to brief whether question raised in its appeal should be addressed as question reserved, State abandoned its appeal under K.S.A. 22–3602[b][3]; but, because State raised K.S.A. 22–3602[b] [1] as another basis for its appeal, court proceeded to address merits of its argument).
Dismissed.