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July 8, 2016, Appellate Court Digests
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Kansas Supreme Court – Criminal

Criminal procedure; speedy trial; statutes
State v. Spencer Gifs, LLC
Johnson District District Court – Affirmed
Court of Appeals – Affirmed
No. 111,398 – July 8, 2016

FACTS: State charged Spencer Gifts in 2010 with 10 counts of promoting obscenity harmful to minors. District court issued summons for Spencer Gifts to appear, but Spencer Gifts was never subject to an appearance bond. Years later Spencer Gifts filed motion to dismiss, alleging violation of speedy trial statute. District court granted the motion, holding Spencer Gifts was statutorily entitled to speedy trial under City of Elkhart v. Bollacker, 243 Kan. 543 (1988), and State failed to honor that right. State appealed. Court of appeals affirmed, relying on supreme court precedent. State petitioned for review, arguing: (1) the speedy trial statute did not apply because Spencer Gifts had not been held on an appearance bond; (2) any contrary holding in Bollacker should be overruled; (3) the corporation did not have speedy trial rights; and (4) dismissal was not required under K.S.A. 2015 Supp. 22-3402(g). Review granted.

ISSUES: (1) Speedy trial statute—construction and application, (2) speedy trial statute—corporations, (3) speedy trial statute-incorrectly charged delay

HELD: Plain language of K.S.A. 2015 Supp. 22-3402(b) does not apply to a defendant not held to answer on an appearance bond, such as Spencer Gifts in this case. Bollacker is examined and overruled, but because lower courts followed valid precedent at the time, the change of law expressed in the instant decision does not apply to reinstate State’s case against Spencer Gifts.  Dismissal of charges against Spencer Gifts is affirmed.

State’s alternative argument, that a business entity is not entitled to rights under speedy trial statute, is waived by State’s failure to support argument with pertinent authority.

No merit to State’s alternative argument based on K.S.A. 2015 Supp. 22-3402(g), as interpreted in State v. Brownlee, 302 Kan. 491 (2015). Issue in this case was whether statutory speedy trial applied at all. There was no dispute about attribution of delays or days chargeable to State.

STATUTES: K.S.A. 2015 Supp. 17-7663(1), 21-5915, -5915(a), -5915(e), 22-2202(b), -2202(o), -2202(s), -3402, -3402(b), -3402(g), -3602(e); K.S.A. 22-3402, -3402(2); K.S.A. 22-3402(1), -3402(2) (Furse 1995); K.S.A. 21-3813(1), -3813(2), 22-3402(2) (Ensley 1981)