19 Kan. App. 2d 498 - State v. Hervey’s Empirical Analysis

Citation profile

8 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 8 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. ““Here, as in Smith , Hervey has already appealed the denial of his first motion to modify. However, unlike Smith, Hervey also appealed his conviction. Under Smith , this distinction is significant. The court in Smith interpreted 21-4603(4)(b) as allowing the filing of a second motion to modify within 120 days of the filing of the mandate affirming a conviction. Although the dissenting opinion in Smith read the majority opinion broadly to bar the filing of a second motion to modify in cases where a defendant appeals both a denial of a motion to modify and the conviction, the majority made no exception for a case where the denial of a motion to modify is also appealed with the conviction. Where the mandate affirms both the conviction and the denial of the first motion to modify, the district court likewise has jurisdiction for 120 days after receipt of the mandate to modify the sentence. “This interpretation of K.S.A. 1992 Supp. 21-4603(4)(a) and (b) gives voice to the fundamental rule of statutory construction that the purpose and intent of the legislature govern. State v. Cole, 238 Kan. 370, 371 , 710 P.2d 25 (1985). By permitting a defendant to file a second motion to modify within 120 days after receipt of a mandate affirming both a conviction and the denial of the first motion to modify, we give meaning and purpose to subsection (b), as well as the ‘except’ clause at the beginning of subsection (a). Our interpretation of this statute is also guided by the rule of statutory”

   1 later decision quote this exact passage
   e.g. State v. Waterbury

2. ““The majority here finds that jurisdiction existed in the trial court to hear Hervey s second motion to modify his sentence despite the fact a request for the identical relief had been previously requested and denied and that denial affirmed on appeal. The justification for allowing Hervey’s motion to modify to be twice considered is that in Smith the appeal was only from the denial of Smith’s motion to modify (Smith did not directly appeal his conviction), while here Hervey not only first appealed the denial of his motion to modify, he also contemporaneously and unsuccessfully directly appealed his conviction. “I would hold that the fact Smith did not directly appeal his conviction, while Hervey did, is a distinction that makes no difference. What does make a difference is the fact that both Smith and Hervey filed motions to modify their sentences, both motions were denied by the trial court, and both denials were affirmed on appeal. “The essence of the Smith decision is that the jurisdictional window’ of K.S.A. 1992 Supp. 21-4603(4)(b) does not open for a 120-day period to allow a second motion to modify to be filed when the earlier appeal is from the denial of a request for the identical relief.””

   1 later decision quote this exact passage · from the concurrence
   e.g. State v. Waterbury