kansas appellate practice handbook - Kansas Judicial Branch

Appellate Jurisdiction 5-
be considered by the appellate court, the State should
allege each applicable alternative means of bringing a
direct appeal set forth in K.S.A. 22-3602(b).
§ 5.7 From an Order Dismissing a Complaint, Information or
Indictment: K.S.A. 22-3602(b)(1)
“The State may appeal from an order dismissing a complaint pursuant
to K.S.A. 22-3602(b)(1).” State v. Hernandez, 40 Kan. App. 2d 525, 527,
193 P.3d 915 (2008). The right to take a direct appeal under this statutory
provision is generally the right to appeal from a pretrial order dismissing
a complaint, information or indictment. The right to take this appeal
belongs to the public prosecutor, not the complaining witness, State ex rel.
Rome v. Fountain, 234 Kan. 943, Syl 2, 678 P.2d 146 (1984), or an attorney
hired to assist the public prosecutor under K.S.A. 19-717. State v. Berg,
236 Kan. 562, Syl. 2, 694 P.2d 427 (1985).
“A judgment of acquittal entered by the trial court on a motion
filed by the defendant at the close of the State’s evidence is final and not
appealable by the State, except in those special circumstances when the
question reserved by the State is of statewide interest and is vital to a
correct and uniform administration of the criminal law.” State v. Wilson,
261 Kan. 924, Syl. 2, 933 P.2d 696 (1997). “While K.S.A. 22-3602(b)(1)
grants the State the right to appeal an order dismissing a complaint,
information, or indictment, the State does not have the right to appeal
a judgment of acquittal because appellate review of the decision after
acquittal would constitute double jeopardy.” State v. Roberts, 293 Kan. 29,
Syl. 3, 259 P.3d 691 (2011).
In determining whether a prosecution ended in an acquittal or
dismissal, the trial court’s characterization of its action does not control.
City of Wichita v. Bannon, 42 Kan. App. 2d 196, 199, 209 P.3d 207 (2009).
Jeopardy attaches only when a jury is impaneled and sworn or when the
judge begins to receive evidence in a bench trial. The State may appeal an
order of dismissal entered before jeopardy has attached. State v. Roberts,
293 Kan. 29, at Syl. 5-7. Where there has been an erroneous acquittal
of a criminal charge, a reinstatement of that charge violates the Fifth
Amendment prohibition against double jeopardy if such reinstatement
results in further proceedings of some sort devoted to the resolution of
factual issues going to the elements of the offense charged. Evans v.
Michigan, 568 U.S. ___, 133 S. Ct. 1069, 185 L. Ed. 2d 124 (2013); Lowe v.
State, 242 Kan. 64, 744 P.2d 856 (1987).
2013