                                              No. 114,065

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                           TIMOTHY WEBB,
                                              Appellant.


                                   SYLLABUS BY THE COURT

        An appeal by a defendant in a criminal case requires both a conviction and a
sentence.


        Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed July 22, 2016.
Appeal dismissed.


        William F. Dunn, of Kansas City, for appellant.


        Kristiane N. Bryant, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before LEBEN, P.J., STANDRIDGE and ARNOLD-BURGER, JJ.


        ARNOLD-BURGER, J.: The State charged Timothy Webb with first-degree murder
and criminal possession of a firearm. The jury convicted Webb of the firearm charge, but
it failed to reach a verdict on the murder charge. Without any objection from Webb, the
district court declared a mistrial. Shortly thereafter, Webb filed a motion to dismiss. The
district court denied the motion, and Webb appeals. Because we find that Kansas statutes
clearly only allow an appeal in the case of a final judgment, which requires a conviction


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and sentence, we lack jurisdiction at this time to consider Webb's double jeopardy claim.
Accordingly, this appeal is dismissed.


                           FACTUAL AND PROCEDURAL HISTORY


       In May 2012, the State charged Webb with first-degree murder and criminal
possession of a firearm by a convicted felon. The case proceeded to jury trial, where the
district court instructed the jury on first-degree murder and several lesser-included
offenses, namely: two alternatives of second-degree murder, two alternatives of
voluntary manslaughter, and involuntary manslaughter.


       The jury returned a guilty verdict for the firearm charge but failed to reach a
verdict on the murder charge. After the jury assured the district court that more
deliberation would not result in a decision, the district court dismissed the jury and
declared a mistrial. Webb never objected to this order.


       But before the State pursued a second trial on the murder charge, Webb filed a
motion for discharge, which essentially constituted a motion to dismiss. Specifically,
Webb argued that because manifest necessity did not justify the mistrial, any retrial
would violate his rights under the Double Jeopardy Clause. The district court denied the
motion, and Webb attempted to appeal. Construing Webb's motion to appeal as a motion
to reconsider the grant of a mistrial, the district court denied the motion. In response,
Webb filed a timely notice of appeal.


       Because a pretrial motion to dismiss is not presently considered a final judgment
under Kansas law, this court ordered the parties to show cause as to why the appeal
should not be dismissed for want of jurisdiction. Webb responded that United States
Supreme Court precedent required allowing his appeal, and this court retained the appeal
to consider the issue.

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                                        ANALYSIS


       Webb's first and dispositive argument on appeal is uncomplicated: He claims that
under United States Supreme Court precedent, the denial of a pretrial motion to dismiss
based on double jeopardy principles is a final judgment for appellate purposes. To hold
otherwise, he argues, offends the purpose of the Double Jeopardy Clause.


       As our Kansas courts often repeat, the right to appeal in Kansas is purely statutory,
and our Kansas appellate courts can exercise jurisdiction only under those circumstances
allowed by statute. State v. Mburu, 51 Kan. App. 2d 266, 269, 346 P.3d 1086, rev. denied
302 Kan. ___ (June 29, 2015). Whether jurisdiction exists is a question of law over which
this court exercises unlimited review. State v. Looney, 299 Kan. 903, 906, 327 P.3d 425
(2014). Moreover, the interpretation of statute is also a question of law, again allowing
this court unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014), cert.
denied 135 S. Ct. 91 (2014).


       In Kansas, and except as otherwise prohibited by statute, a criminal appeal "may
be taken by the defendant as a matter of right from any judgment against the defendant in
the district court." K.S.A. 2015 Supp. 22-3602(a). On appeal, "any decision of the district
court or intermediate order made in the progress of the case may be reviewed." K.S.A.
2015 Supp. 22-3602(a). Absent certain exceptions, an appeal "from a district court's final
judgment in a criminal case" comes first to the Kansas Court of Appeals. K.S.A. 2015
Supp. 22-3601(a). And according to our Kansas precedent, an appealable judgment under
these statutes requires both a conviction and a sentence. See State v. Freeman, 236 Kan.
274, Syl. ¶ 2, 689 P.2d 885 (1984) (conviction not appealable until defendant is
sentenced or sentence is suspended); State v. Cameron, 32 Kan. App. 2d 187, 189, 81
P.3d 442 (2003). As this court explained in Cameron:




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       "We arrive at this conclusion [that a diversion revocation is not an appealable order]
       based on the absence of any express statutory authority allowing a criminal defendant to
       take an interlocutory appeal, the general rule . . . that a judgment does not exist in a
       criminal case until conviction and sentencing, and a related assumption that a criminal
       defendant has no right to an interlocutory appeal because he or she can address any
       intermediate order of the court when appeal of the conviction is ultimately taken." 32
       Kan. App. 2d at 189-90.


       But without really acknowledging this body of law, Webb relies solely on Abney
v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977), to support his
right to appeal the present motion to dismiss. There, after a federal appellate court
ordered a new trial, the defendants moved to dismiss their indictments on double
jeopardy grounds. The district court denied the motion, and the defendants appealed. But
the prosecution challenged the appellate court's jurisdiction, arguing that the denial of a
pretrial motion to dismiss did not constitute an appealable decision under federal law.
When the appellate court upheld the district court's order, the defendants again appealed
to the United States Supreme Court.


       After recognizing certain general rules about the right to appeal, the Supreme
Court analyzed the federal statute that controls appellate jurisdiction. That statute, 28
U.S.C. § 1291, allows federal courts of appeals to review "'all final decisions of the
district courts'" in both civil and criminal cases. 431 U.S. at 657. The Court next
explained that several federal appellate courts had held that pretrial motions to dismiss
for double jeopardy reasons fell within the "'collateral order' exception" to the federal
appellate statute. 431 U.S. at 657. This exception, which first originated in a civil suit,
recognizes that the plain language of § 1291 references only "'final decisions'" and not
"'final judgments which terminate an action.'" Abney, 431 U.S. at 658; 28 U.S.C. § 1291.
Accordingly, the exception employs a "'practical rather than a technical construction'" of
the statute and uses a factor test to determine whether a decision that fails to terminate the
action as a whole is nonetheless appealable under § 1291. 431 U.S. at 658.

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       After considering the various facets of the collateral order exception, the United
States Supreme Court determined that pretrial orders to dismiss for double jeopardy
reasons were indeed immediately appealable. 431 U.S. at 659. Importantly, the Court
highlighted why challenges on double jeopardy grounds needed to be promptly reviewed:


       "[T]his Court has long recognized that the Double Jeopardy Clause protects an individual
       against more than being subjected to double punishments. It is a guarantee against being
       twice put to trial for the same offense.
               ....
               ". . . [It] assures an individual that, among other things, he will not be forced,
       with certain exceptions, to endure the personal strain, public embarrassment, and expense
       of a criminal trial more than once for the same offense. . . .
                ....
               ". . . [T]hese aspects of the guarantee's protections would be lost if the accused
       were forced to 'run the gauntlet' a second time before an appeal could be taken; even if
       the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double
       jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy
       Clause was designed to prohibit. Consequently, if a criminal defendant is to avoid
       exposure to double jeopardy . . . , his double jeopardy challenge to the indictment must be
       reviewable before that subsequent exposure occurs." 431 U.S. at 660-62.


       All that said, the Supreme Court limited the scope of its decision only to pretrial
motions to dismiss on double jeopardy grounds due to the "special considerations
permeating claims of that nature." 431 U.S. at 663.


       A short time after the United States Supreme Court decided Abney, this court
considered what if any effect its holding had on appellate jurisdiction in Kansas. In State
v. Fisher, 2 Kan. App. 2d 353, 579 P.2d 167, rev. denied 225 Kan. 846 (1978), after the
district court granted a mistrial over the defendant's objection, the defendant moved to
dismiss the case on double jeopardy grounds. And like here, the defendant appealed
immediately after the district court denied the motion. In considering whether it had

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jurisdiction to hear the appeal, this court first examined our Kansas statutes, observing
that the criminal appellate statute provides only for an appeal after judgment. 2 Kan. App.
2d at 354. This court also recognized that our Kansas Supreme Court had previously
ruled that an appeal from a motion that raised double jeopardy issues could only be
sustained "after trial and final judgment." 2 Kan. App. 2d at 354. However, because the
defendant in Fisher argued that Abney required a change in Kansas law, this court
continued on to analyze that decision in light of our state statutes.


       First, this court determined that although 28 U.S.C. § 1291 closely resembles our
civil appellate statute, it differs dramatically from our criminal appellate statute in that it
references final decisions rather than judgments. Fisher, 2 Kan. App. 2d at 355. This
court found this difference in construction important, noting that the Abney Court had
recognized the "distinction between final decisions and judgments." Fisher, 2 Kan. App.
2d at 356. Additionally, this court observed that, unlike in the federal courts, our state
lacked the collateral order exception applicable in Abney. Fisher, 2 Kan. App. 2d at 356.
That said, this court also recognized the serious double jeopardy implications of its
decision, explaining:


       "[W]e recognize that the Fifth Amendment to the Constitution of the United States and
       Section 10 of the Bill of Rights to the Constitution of the State of Kansas protect against
       being twice put in jeopardy for the same offense, and that such includes the right not to
       be tried twice for the same offense. [Citations omitted.] We recognize also that this
       important constitutional right may be lost to the defendant if he is compelled to again go
       to trial on the charges against him without having been able to present the issue of former
       jeopardy to an appellate court." 2 Kan. App. 2d at 356-57.


       But in light of the lack of a constitutional right to appeal, this court determined
that regardless of these concerns, "our statute, as interpreted by the Supreme Court,
precludes review of [the double jeopardy] issue in this manner at this time." 2 Kan. App.
2d at 357.

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       A short time later, a Kansas defendant challenged the charges against him on
double jeopardy grounds first by filing a motion to dismiss, which the district court
denied, and then by pursuing a writ of habeas corpus. See In re Berkowitz, 3 Kan. App.
2d 726, 728, 602 P.2d 99 (1979). After reexamining Abney and considering the need for a
double jeopardy challenge to be promptly reviewable, this court determined that pretrial
double jeopardy issues could be properly raised and appealed through habeas corpus
actions. Berkowitz, 3 Kan. App. 2d at 729-31.


       Like this court in Fisher, courts in other states have reviewed their appellate
statutes and consequently declined to follow Abney's rationale. For example, the New
Mexico Court of Appeals determined in State v. Apodaca, 123 N.M. 372, 375, 940 P.2d
478 (Ct. App. 1997), that while its Supreme Court "expressed substantial agreement with
the collateral order doctrine in civil cases," it had yet to permit an appeal under that
exception. Moreover, and more relevant to the instant case, the court found that its state
statute allowing for criminal appeals provided only for appeal from "'the entry of any
final judgment.'" 123 N.M. at 375. For that reason, the court wondered "whether our
Supreme Court would apply the collateral order doctrine . . . when the statutory authority
for appellate jurisdiction is restricted to final judgments." 123 N.M. at 376. Ultimately,
however, the court allowed the defendant's appeal on other grounds. 123 N.M. at 376-77.


       Similarly, in West v. Commonwealth, 249 Va. 241, 242, 455 S.E.2d 1 (1995), the
Virginia Supreme Court found Abney and the collateral order exception inapplicable due
to long-standing caselaw holding that "criminal appeals to [the Supreme Court] lie only
to final judgments." Courts in Alabama, Minnesota, New Jersey, and California have
examined their state appellate statutes and arrived at similar conclusions. See Jones v.
State, 450 So. 2d 186, 187 (Ala. Crim. App. 1984); State v. Murphy, 537 N.W.2d 492,
494-95 (Minn. App. 1995); State v. Nemes, 405 N.J. Super. 102, 103, 963 A.2d 847


                                              7
(2008); accord People v. Rogers, No. F057862, 2009 WL 2343718, at *2 (Cal. App.
2009) (unpublished opinion).


       Of course, not all state statutes bar appeals from these sorts of pretrial motions.
For example, the Ohio Supreme Court determined, with little reference to Abney, that its
appellate statute allows for an appeal from a pretrial motion to dismiss on double
jeopardy grounds. State v. Anderson, 138 Ohio St. 3d 264, 270-71, 6 N.E.3d 23 (2014);
see also State v. Crawford, 257 Conn. 769, 775-76, 778 A.2d 947 (2001) (entertaining
appeal based on caselaw allowing for interlocutory review). But as these cases clearly
demonstrate, the paramount question when considering the reviewability of these sorts of
pretrial motions is the plain language of a state's appellate statue and the corresponding
caselaw.


       Additionally, several other state courts have recognized the importance of Abney
by allowing the defendant to challenge an indictment on double jeopardy grounds
through pretrial writs rather than a direct appeal. See Ex parte Adams, 669 So. 2d 128,
132 (Ala. 1995); Keating v. Sherlock, 278 Mont. 218, 224-25, 924 P.2d 1297 (1996); Day
v. Haskell, 799 N.W.2d 355, 358-60 (N.D. 2011); Ex parte Robinson, 641 S.W.2d 552,
554-55 (Tex. Crim. App. 1982). And along a similar vein, Arizona allows for the
defendant to bring a special action challenging the denial of a double jeopardy motion.
See Nalbandian v. Superior Court In and For County of Maricopa, 163 Ariz. 126, 129-
31, 786 P.2d 977 (Ct. App. 1989).


       As for the overall onus to apply federal caselaw to our state statutes, our Kansas
Supreme Court recently reexamined and overruled a federally based exception to our
civil appellate statute. Wiechman v. Huddleston, 304 Kan. 80, 370 P.3d 1194 (2016). That
exception, which originated in Brown v. Fitzpatrick, 224 Kan. 636, 585 P.2d 987 (1978),
and was rooted in federal precedent, allowed for an appeal when a party asserted a
jurisdictional challenge to an order granting K.S.A. 60-260 relief. Wiechman, 304 Kan. at

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85. But based on recent caselaw and the statutory nature of the right to appeal, our
Supreme Court elected to overrule the exception. 304 Kan. at 86-88. As the court
explained:


               "In our view, Brown focuses the analysis on the wrong question by allowing
       consistency with federal caselaw to trump a Kansas statute. . . . We conclude the best
       path is to abandon Brown and adhere to our jurisprudence that limits appellate
       jurisdiction in civil cases to that provided by statute." Wiechman, 304 Kan. at 88.



       In his appeal, Webb essentially asks this court to ignore both the statutory nature
of his right to appeal and our Kansas caselaw and adopt a rule that perfectly mirrors that
in Abney. But as our Supreme Court expressed in Wiechman, consistency with federal
caselaw is not nearly as important as recognizing the plain language of our Kansas
statutes. See 304 Kan. at 86-88. As observed in Fisher, our Kansas criminal appellate
statute allows only for appeals from a judgment. 2 Kan. App. 2d at 354-56. As a
judgment requires both a conviction and sentence, Webb's appeal is not properly before
this court and must be dismissed for want of jurisdiction.


       Appeal dismissed.




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