kansas appellate practice handbook - Kansas Judicial Branch

Appellate Jurisdiction 5-15
ability to prosecute the case or when appellate jurisdiction is challenged by
the defendant-appellee. State v. Sales, 290 Kan. 130, Syl. 5, 224 P.3d 546
(2010); Newman, 235 Kan. at 35. There is, however, no similar threshold
requirement in an appeal from a pretrial order suppressing a confession
or admission. State v. Mooney, 10 Kan. App. 2d 477, 479, 702 P.2d 328, rev.
denied 38 Kan. 879 (1985). In dicta, the Mooney court also indicated there
was no such threshold requirement in an appeal from a pretrial order
quashing a warrant or search warrant. Mooney, 10 Kan. App. 2d at 479.
There is no mechanism for the State to appeal from an order denying
revocation of a diversion agreement or probation. State v. McDaniels, 237
Kan. 767, 772, 703 P.2d 789 (1985). This does not mean, however, that
the State can never question an order denying revocation of a diversion
agreement. In McDaniels, the court stated, “Until the legislature chooses
to create a right in the State to appeal from a pretrial order denying the
State’s request to revoke diversion, the State may not appeal prior to the
completion of the diversion and the dismissal of the case by the district
court.” McDaniels, 237 Kan. at 772. The State may, however, “appeal after
the dismissal, and if the appeal is sustained, the defendant may be tried.”
McDaniels, 237 Kan. at 771. Likewise, a defendant may not appeal from
the court’s decision to terminate pretrial diversion and reinstate criminal
prosecution. State v. Cameron, 32 Kan. App. 2d 187, 81 P.3d 442 (2003).
Further proceedings in the trial court will be stayed pending
determination of the interlocutory appeal. K.S.A. 22-3603. The time
during which an interlocutory appeal is pending “shall not be counted for
the purpose of determining whether a defendant is entitled to discharge”
under the speedy trial statute, K.S.A. 22-3402. K.S.A. 22-3604(2). The
general rule is that a defendant shall not be held in jail nor subject to an
appearance bond during the pendency of an appeal by the prosecution.
K.S.A. 22-3604(1). The exception to this general rule is that a defendant
charged with an off-grid felony, a nondrug severity level 1 through 5 felony
or a drug severity level 1 through 4 felony crime “shall not be released
from jail or the conditions of such person’s appearance bond during the
pendency of an appeal by the prosecution.” K.S.A. 22-3604(3). This rule
also applies to a defendant charged with a class A, B or C felony prior to
the enactment of the Kansas Sentencing Guidelines Act in 1993.
2013