Opinion
No. 109,140.
2015-03-6
STATE of Kansas, Appellee, v. Randy A. RIDENS, Sr., Appellant.
Appeal from Douglas District Court; Sally D. Pokorny, Judge.Samuel Schirer, of Kansas Appellate Defender Office, for appellant.Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Sally D. Pokorny, Judge.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STANDRIDGE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Randy Ridens, Sr., contends the district court could not order him to pay restitution in his criminal case. Ridens argues that because he had already appealed, the district court had lost jurisdiction and was powerless to act further in his case. Based upon Supreme Court precedent, we reject Ridens' argument and affirm the district court's restitution order.
Ridens pled no contest to one count of conspiracy to commit burglary and asked the court for an immediate sentencing. The district court imposed a prison sentence of 15 months, with 12 months of postrelease supervision. The sentencing hearing was held on August 31, 2012, and the district court set a later date for a restitution hearing. After continuances, the hearing was finally held on January 28, 2013. Ridens filed a notice of appeal on September 12, 2012, almost 4 months before restitution was decided. Following the restitution hearing, the district court ordered Ridens and two codefendants to pay $1,000 jointly and severally. We dismissed Ridens' appeal for lack of subject matter jurisdiction after finding the appeal was premature because the judgment was not final due to the open issue of restitution.
Then, in June 2014, our Supreme Court granted Ridens' petition for review, vacated our dismissal of Ridens' appeal, and ordered the appeal reinstated in light of State v. Hall, 298 Kan. 978, 319 P .3d 506 (2014); State v. Charles, 298 Kan. 993, 318 P.3d 997 (2014); and State v. Frierson, 298 Kan. 1005, 319 P.3d 515 (2014). On remand, we issued a show cause order to determine whether there was a final decision made by the district court. Because a restitution order has been completed, we will proceed with this appeal.
Ridens claims the district court lacked jurisdiction to impose restitution while his appeal was pending. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. Charles, 298 Kan. at 1002. Subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court's own motion. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010).
Ridens argues that upon filing a docketing statement with the clerk of the appellate courts, the district court lost jurisdiction to set the restitution amount, citing State v. Walker, 50 Kan.App.2d 900, 334 P.3d 901 (2014). This case is distinguishable from Walker. In Walker, there was a valid and timely notice of appeal pending before this court when Walker filed an amended notice of appeal in the district court. In his original notice, Walker appealed only his sentence. In his amended notice, he sought to have this court also review some trial errors as well as his sentence. The Walker panel held: “We note that Walker vainly attempted to file an amended notice of appeal in the district court where he was convicted. This filing was a nullity since the docketing statement had already been filed in this court and thus the district court lost jurisdiction over this case. [Citation omitted.]” 50 Kan.App.2d at 904. In our view, the holding in Walker is inapplicable in Ridens' case. Walker tried to start his appeal anew by filing an “amended notice of appeal” after a docketing statement had been filed, where here, Ridens' notice of appeal was simply premature because his sentencing was not final. Therefore, filing the docketing statement did not deprive the district court of jurisdiction because his sentence was not yet complete. We elaborate.
Our jurisdiction is limited to “final judgments.” To be final, a defendant must be convicted and sentenced or the imposition of sentence must be suspended. State v. Howard, 44 Kan.App.2d 508, 511, 238 P.3d 752 (2010). A sentence includes restitution, meaning that a defendant is not sentenced unless and until the restitution order is entered. State v. McDaniel, 292 Kan. 443, 445–46, 254 P.3d 534 (2011). A sentence is effective when pronounced from the bench, and the trial court lacks jurisdiction to modify a sentence thereafter. Hall, 298 Kan. at 986.
Prior to the restitution hearing, the district court addressed Ridens' restitution at the preliminary hearing and at the sentencing hearing. Ridens was present at both hearings. See Hall, 298 Kan. 978, Syl. ¶ 1, which held the restitution amount must be set by a district judge in open court with the defendant present. At the sentencing hearing, the prosecutor argued, “With regards to restitution, I don't have an order prepared for the Court and would ask for 30 days to be able to prepare that order; but as part of the plea negotiations, the defendant has agreed to pay back restitution, joint and sever [ally], with the other co-defendants.” Ridens' attorney responded:
“I don't think [Ridens] has agreed to necessarily do that. I think the Court has to find whether or not the plan of restitution is workable or unworkable; and so when we had the hearing about restitution, there were some issues.... [The insurance carrier] may have a civil cause of action, but the State has a lot of work to do to determine what restitution is and then decide whether or not it's workable, all of which is in the plea advisory.”
When Ridens' attorney addressed the district court regarding appropriate sentencing, he stated:
“I realize that we have the business about restitution to deal with, and I don't know if the State will ever resolve all those issues, but it would be a simple matter to bring [Ridens] back, and we don't know when that will get resolved, but he needs to be back in prison, and we think this is a reasonable disposition, which is why we agreed to it.”
At the conclusion of the sentencing hearing, the district judge asked the parties, “Do we want to set a restitution hearing 30 days out, because I will take that matter under advisement.... Taking restitution under advisement. What is your availability on October 1st at 4:00?”
In Hall, the district court sentenced Hall to imprisonment and ordered restitution to remain open for 30 days. The restitution amount was decided at the second hearing. Hall argued the district court lacked subject matter jurisdiction to impose restitution after the first hearing. Our Supreme Court held that “because restitution constitutes a part of a defendant's sentence, its amount can be set by a sentencing judge with the defendant in open court. Until any applicable restitution amount is decided, a defendant's sentencing is not complete.” 298 Kan. at 986. Hall 's notice of appeal did not become effective until after the restitution amount was set. Our Supreme Court held that judgment is effective when announced from the bench, and a premature notice of appeal lies dormant until judgment is final. 298 Kan. at 988.
In Frierson, the district court ordered Frierson to pay $950 in restitution, but it held restitution open for 30 days pending further determination of the victim's expenses. The parties agreed to a 30–day extension to reach an agreement on the correct amount. The district court modified the restitution amount within the 30–day time frame. Frierson argued the district court lacked jurisdiction to modify restitution. The Frierson court stated it was necessary for the district court to use the “magic words,” and the district court “should explicitly order a continuance or bifurcation of the hearing.” 298 Kan. at 1021. Citing Hall, 298 Kan. 978, Syl. ¶ 2, the court held: “A sentencing hearing may be continued or bifurcated so that restitution is ordered at one setting and the amount decided at a later setting. In such instances, a district judge should specifically order the continuance or bifurcation.” Frierson, 298 Kan. at 1020.
Filing the docketing statement in this court did not affect the district court's jurisdiction regarding Ridens' restitution. The district court explicitly ordered a bifurcation of the hearing when it asked to set the restitution hearing for 30 days out. Following the clear instructions in Hall, we hold Ridens' notice of appeal was premature and remained dormant until the restitution amount was set. His sentencing was not final until restitution was set. The district court had jurisdiction to set Ridens' restitution.
Affirmed.