Opinion
No. 105,938.
2012-05-11
STATE of Kansas, Appellee v. Charles Edward CAENEN, Appellant.
Appeal from Johnson District Court; Thomas H. Bornholdt, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for Appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for Appellee.
Appeal from Johnson District Court; Thomas H. Bornholdt, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for Appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for Appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Charles Edward Caenen appeals the district court's denial of his motion to dismiss that was filed 3 months after sentencing for a driving under the influence conviction. Caenen alleges on appeal that while he was on pretrial release, the Johnson County Adult Residential Center charged him $12 a day as a condition of his house arrest. Caenen contends that the daily charge exceeded weekly statutory limits. We find that the district court no longer had jurisdiction to modify Caenen's sentence at the time he filed his motion to dismiss. Thus, we dismiss Caenen's appeal for lack of jurisdiction.
On May 13, 2009, Caenen was arrested for driving under the influence. The district court released him on bond subject to house arrest on December 1, 2009. In April 2010, Caenen pled guilty to driving under the influence. On July 15, 2010, the district court sentenced him to 6 months in jail and a $2,500 fine. The district court also ordered Caenen to use an interlock device on his car for a 2–year period.
Caenen did not appeal his conviction or sentence. But 3 months later, on October 15, 2010, Caenen filed a motion to dismiss, alleging that the $12–a–day charge he paid while he was under house arrest exceeded the limit of $10 a week under K.S.A. 22–2802(15). The district court denied Caenen's motion to dismiss, finding that K.S.A. 22–2802(15) did not limit the amount of charges associated with house arrest. Thereafter, Caenen timely appealed the denial of his motion to dismiss.
It is unnecessary to reach the merits of this appeal because our review of the record reveals that the district court did not have jurisdiction to modify Caenen's sentence at the time he filed his motion to dismiss. As such, this court also lacks jurisdiction to review the district court's denial of Caenen's motion to dismiss.
Whether jurisdiction exists is a question of law subject to unlimited review. State v. Ellmaker, 289 Kan 1132, 1147, 221 P.3d 1105 (2009). The right to appeal is entirely statutory. 289 Kan. at 1148. If the district court lacked jurisdiction to enter an order, then an appellate court does not have jurisdiction over the appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004). Thus, an appellate court must dismiss an appeal when the record discloses a lack of jurisdiction. See State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 352, 241 P.3d 45 (2010).
K.S.A.2010 Supp. 22–3608(c) provides a defendant with 14 days from the sentencing pronouncement to appeal a conviction or sentence. Here, the district court sentenced Caenen on July 15, 2010. Rather than appealing within 14 days, Caenen filed a motion to dismiss in the district court 3 months after sentencing.
After the district court imposes a lawful sentence, it only has jurisdiction to modify the sentence to correct arithmetic or clerical errors. State v. Ballard, 289 Kan. 1000, Syl. ¶ 10, 218 P.3d 432 (2009). Caenen did not complain about any arithmetic or clerical error in his motion to dismiss. Instead, he asked the district court to reduce his fine by the amount he had already paid for house arrest. But the district court did not have jurisdiction to grant the relief Caenen requested because it could not modify his sentence by reducing the fine by the amount he paid while on pretrial house arrest.
To be sure, an illegal sentence can be corrected at any time. K.S.A. 22–3504(1); see Ballard, 289 Kan. 1000, Syl. ¶¶ 10, 11. But the district judge never ordered Caenen to pay the fees for his house arrest at sentencing. And Caenen alleged that at the time of his sentencing he had already paid the full amount of the house-arrest fees as a condition of his pretrial release. In short, the $12–a–day charge was never a part of Caenen's sentence. See K.S . A. 22–2802(1)(d) (a court can order house arrest as a condition of pretrial release). And orders that are not part of a sentence must be appealed within the time allowed under K.S.A.2010 Supp. 22–3608(c). See State v. Ehrlich, 286 Kan. 923, Syl. ¶ 4, 189 P.3d 491 (2008).
We, therefore, conclude that because the district court no longer had jurisdiction over this case at the time Caenen filed his motion to dismiss, we also do not have jurisdiction over this appeal.
The appeal is dismissed for lack of jurisdiction.