Opinion
No. 111747.
04-10-2015
STATE of Kansas, Appellee, v. Anthony SMITH, Appellant.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., POWELL, J., and MERLIN G. WHEELER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
The district court ordered Anthony Smith to pay $800 in fees for KBI lab tests completed in cases 13 CR 439 and 13 CR 566. Smith now appeals and argues that because case 13 CR 439 was dismissed, he should not have been ordered to pay the lab fees in that case. We agree and accordingly we vacate the order for $400 in KBI lab fees associated with case 13 CR 439.
Smith was charged with felony possession of methamphetamine, interference with law enforcement, possession of drug paraphernalia, possession of marijuana, and driving under the influence (DUI) in case number 13 CR 439. The DUI charge was dismissed for lack of an essential witness. In case number 13 CR 566, Smith was charged with numerous drug offenses, felony fleeing and eluding, and misdemeanor possession of drug paraphernalia.
As part of plea negotiations, the State amended the complaint in case number 13 CR 566 and only charged Smith with possession of methamphetamine with intent to distribute, and case number 13 CR 439 was dismissed outright.
The State requested, and the district court ordered, that Smith pay $800 in KBI lab fees for tests that were done in connection with both 13 CR 566 and 13 CR 439. There was no objection by Smith at the time he was ordered to pay the $800 in fees, but likewise the plea agreement did not provide that he would pay the KBI laboratory fees assessed in the dismissed case.
Smith filed a timely notice of appeal.
Analysis
The sole issue on appeal is whether the district court erred when it ordered Smith to pay the $400 lab fee for case number 13 CR 439 because that case was dismissed per the plea agreement; thus, he was never convicted of the crimes for which the lab test was completed.
This case involves the interpretation of K.S.A.2014 Supp. 28–176(a). Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
Under K.S.A.2014 Supp. 28–176(a),
“[t]he court shall order any person convicted or diverted, or adjudicated ... of a misdemeanor or felony contained in chapters 21, 41 or 65 of the Kansas Statutes Annotated ... to pay a separate court cost of $400 for every individual offense if forensic science or laboratory services ... are provided, in connection with the investigation, by [certain entities].”
In July 2013, Smith was charged in case number 13 CR 439 for crimes allegedly committed in that month. The corresponding KBI lab test result for this case had a lab case number of G13–02005. In case number 13 CR 566, the crimes were committed in August 2013. The corresponding lab test result for this case had a lab case number of G13–02592.
The State requested the district court to order Smith to pay for the lab fees in both cases. Despite the fact that case number 13 CR 439 was dismissed per the plea agreement, the district court ordered Smith to pay the $400 lab fee for that case as well as the $400 lab fee for case number 13 CR 566.
The State points out that Smith presents this issue for the first time on appeal; thus, it should not be determined by this court. In his reply brief, Smith asserts that this court should review the issue because the district court lacked jurisdiction to order him to pay the lab fee in case number 13 CR 439.
Issues not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or having assigned a wrong reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
Smith's argument is persuasive. Smith's contention regarding lab fees involves only an interpretation of the statute and is finally determinative of the case-that being the authority of the court to order lab fees assessed on a dismissed case absent an agreement of the parties.
So turning to the merits of his claim, we agree that while the district court did have jurisdiction to impose the $400 lab fee for case number 13 CR 566, the district court lost the ability to impose the fee in case number 13 CR 439 once that case was dismissed. K.S.A.2014 Supp. 28–176(a) only allows a court to impose the lab fee upon the defendant if the defendant was convicted or adjudicated of (or diverted from) the crime. See State v. Goeller, 276 Kan. 578, 584, 77 P.3d 1272 (2003) ; State v. Zugg, No. 96,478, 2007 WL 1413133, at *2 (Kan.App.2007) (unpublished opinion) (only required to pay lab fee for counts on which convicted). The State points to State v. Gomez, No. 104,265, 2011 WL 3658374, at *1–2 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. 1110 (2012), to support its position that no conviction is necessary because the statute allows for the imposition of fees for tests performed “ ‘in connection with the case.’ “ See K.S.A.2014 Supp. 28–176(a) (using similar phrase “in connection with the investigation”). But the State's argument ignores that fact that the tests performed in relation to case number 13 CR 439 were solely related to that case. The associated investigation was totally unrelated to case number 13 CR 566. The only case before the court upon which to access laboratory fees was case number 13 CR 566. Thus, the district court did not have jurisdiction to impose the lab fee in case number 13 CR 439 because it did not have the statutory authority to do so.
Accordingly, we vacate the imposition of the $400 KBI lab fee in case number 13 CR 439.
Vacated in part.