State v. Hand ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,821
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TIMOTHY RAY HAND,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed December 30,
2021. Affirmed.
Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before ARNOLD-BURGER, C.J., ATCHESON and HURST, JJ.
ATCHESON, J.: Six years after Defendant Timothy Ray Hand successfully
completed his probation for several felony drug convictions, a representative of the
Shawnee County Sheriff's Department told him he was supposed to be reporting under
the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. That came as
news to Hand. With the assistance of the public defender's office, he filed a motion with
the Shawnee County District Court to be relieved of those registration and reporting
obligations because of the State's long delay in informing him. Hand rested his claim on
the equitable doctrine of laches, and in a world of poetic justice, he might have had a
1
point. But we apply the law in a prose forum. The district court denied the motion. We
find no error and affirm.
FACTUAL AND PROCEDURAL HISTORY
In 2011, the State charged Hand with multiple felony drug crimes. Under an
agreement with the State, Hand pleaded guilty to four counts of possession with the intent
to distribute or distribution of crack cocaine. The State dismissed other charges and
agreed to join in a recommendation for probation. The district court followed the
agreement by imposing a prison sentence and placing Hand on probation. The
convictions rendered Hand a "drug offender," requiring him to register and report under
KORA. See K.S.A. 2020 Supp. 22-4902(f) (defining "drug offender"); K.S.A. 2020
Supp. 22-4905 (registration requirements for "any offender," including drug offenders).
Hand successfully completed the probation in 2013 and was discharged from the criminal
sentence.
For purposes of this appeal, the undisputed evidence shows that neither the district
court nor any probation officer informed Hand of his duty to register and report under
KORA, although the journal entry of judgment notes the obligation on the last page of the
12-page document. Hand did not register or report.
In 2019, the Kansas Bureau of Investigation forwarded a tip that Hand was not
complying with KORA to Shawnee County Sheriff's Deputy Ashley Previty, who
oversees registration and reporting of offenders for the County. Previty contacted Hand
and informed him he had not been complying with KORA. Hand registered and has been
duly reporting since then.
On January 13, 2020, the Shawnee County Public Defender filed a two-page
motion in the criminal case asking the district court to relieve Hand of any obligation to
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register or report under KORA based on laches. The State did not file a written response
to the motion. The district court held an evidentiary hearing on March 3 at which Hand
and Deputy Previty were the only witnesses. Neither the State nor the district court
questioned the procedural propriety of the motion. Hand testified that he had never been
informed of any KORA obligations until Deputy Previty contacted him in 2019. He told
the district court that he owns and operates a moving company in the Shawnee County
area and fears potential customers will not hire the company if they find out he is a
registered drug offender.
The district court filed a memorandum and order on March 27 denying Hand's
motion. Hand has appealed.
LEGAL ANALYSIS
We do not see any dispute about the material facts bearing on the district court's
ruling denying Hand relief from the requirements of KORA. The question, then, becomes
one of law that we consider without any particular deference to the district court. See
Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 258-59, 261 P.3d 943 (2011)
(legal effect of undisputed facts presents question of law decided without deference to
district court).
Laches Considered and Rejected
Hand's argument for avoiding KORA registration and reporting based on laches
fails for several reasons:
⦁ Laches is an equitable doctrine that precludes a party from asserting a right after
an unreasonable delay when the responding party has been prejudiced because of the
delay. State ex rel. Stovall v. Meneley, 271 Kan. 355, 388-89, 22 P.3d 124 (2001);
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Nguyen v. Huynh, No. 118,709, 2018 WL 4039396, at *2 (Kan. App. 2018) (unpublished
opinion) ("Laches steps in to prevent one party from enforcing a right against another
party when the first party has inordinately delayed in asserting the right to the actual
detriment of the obligated party."). The basis for relief lies in showing prejudice from the
delay itself. Meneley, 271 Kan. at 389; Darby v. Keeran, 211 Kan. 133, 140, 505 P.2d
710 (1973). To invoke laches, Hand would have to establish some prejudice or harm to
him from the State's six-year delay in advising him he had to comply with KORA.
Hand testified KORA registration likely would damage his moving business
because people would not want to hire him if they were aware he had been statutorily
branded as a drug offender. Apart from being speculative, the described harm would flow
from registration itself and not the State's delay. Laches does not redress the harm Hand
has postulated and, therefore, is inapplicable. Hand has not argued prejudice because he
would have sought out some other line of work had he been registering and reporting in
compliance with KORA since 2011.
⦁ As set out in Meneley, laches cannot be invoked against the State to negate
governmental functions undertaken to promote the public good or welfare. 271 Kan. at
389. The Kansas Supreme Court has identified the purpose behind KORA as such a
public good. See State v. Stoll, 312 Kan. 726, 732, 480 P.3d 158 ("KORA's purpose is to
protect the public from certain offenders by requiring those offenders to register."). So
laches, as a general rule of equity, cannot override a specific government undertaking
directly advancing the Legislature's perception of the commonweal.
⦁ KORA itself provides a court cannot issue "an order relieving the offender of
further registration under this act." K.S.A. 22-4908. Although the prohibition may have
been designed to preclude "early release" of a KORA registrant for good behavior or
demonstrable rehabilitation, its broad language reaches and negates Hand's request for
equitable relief. Statutory directives typically oust conflicting common-law doctrines. See
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Stanley v. Sullivan, 300 Kan. 1015, 1018, 336 P.3d 870 (2014). Laches, as a common-law
rule, typically should yield to a specific statute such as K.S.A. 22-4908. See Barnes v.
Gideon, 224 Kan. 6, 9, 578 P.2d 685 (1978) (recognizing laches as common-law rule).
Hand has offered no compelling argument otherwise.
The dissent would read the prohibition in K.S.A. 22-4908 as depriving the district
court of subject matter jurisdiction to consider any cause of action challenging a person's
continuing obligation to register under KORA. But that misreads the statutory language.
The statute precludes a court from granting a registrant affirmative relief from having to
comply with KORA going forward, as Hand has requested here. But the statute does not
purport to do so by depriving district courts of subject matter jurisdiction. We should not
impute such a sweeping bar into the much narrower language of K.S.A. 22-4908. See
Chalmers v. Burrough, 314 Kan. 1, 11, 494 P.3d 128 (2021) (statute typically does not
deprive district court of general or subject matter jurisdiction absent "explicit" restrictive
language). The Chalmers court cited statutes that preclude a party from initiating an
action without having satisfying identified conditions precedent as measures that restrict
general jurisdiction. 314 Kan. at 10-11. The legislative directive in K.S.A. 22-4908 is
materially more constrained. If the dissent were correct, we should vacate the district
court's order for lack of jurisdiction and then dismiss this appeal for the same reason.
Each of the reasons we have identified presents a sufficient ground standing alone
to affirm the district court.
KORA as Punishment—Ode to a Higher Authority
For the first time on appeal, Hand also argues that KORA registration and
reporting constitutes punishment, so the district court's failure to inform him of those
obligations when he pleaded guilty or was sentenced excuses his compliance. Hand
concedes his argument cannot be reconciled with State v. Carter, 311 Kan. 206, 210-11,
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459 P.3d 186 (2020), recognizing that a district court need not make a "deadly weapon"
finding from the bench as a necessary condition for KORA registration and reporting, as
long as the finding appears in the journal entry of conviction. In reaching that conclusion,
the Carter court restated that KORA registration and reporting neither imposes
punishment nor constitutes part of a criminal defendant's sentence. 311 Kan. at 210.
Hand submits Carter was wrongly decided and should be overruled. He
acknowledges we are simply a way station on the journey to the Kansas Supreme Court
to make that request. We have no authority to disregard Carter, let alone overrule it. See
State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). We, therefore,
necessarily reject Hand's argument.
An Appeal Taken and Resolved
In wrapping up our review, we mention the odd procedural progression of Hand's
claim for relief. The claim began as a motion in the criminal case that has no real analog
in the Kansas Code of Criminal Procedure. Hand neither sought to withdraw his pleas nor
to challenge the legality of his sentence—motions that are recognized and can be filed
comparatively late in a criminal case. See K.S.A. 2020 Supp. 22-3210(d), (e) (withdraw
plea); K.S.A. 2020 Supp. 22-3504 (correction of illegal sentence). But the State did not
challenge the procedural vehicle for Hand's request. And the district court declined to
question how the motion might be anchored in the criminal case. Had the point been
raised, the district court properly could have (and almost certainly should have) denied
the motion without prejudice as procedurally irregular. Cf. United States v. Campa, 459
F.3d 1121, 1146-47 (11th Cir. 2006) (district court did not abuse discretion in denying
motion for change of venue without prejudice when defendants' submission in support of
request failed to show pervasive pretrial publicity); Ciralsky v. C.I.A., 355 F.3d 661, 671
(D.C. Cir. 2004) (district court did not abuse discretion in dismissing action without
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prejudice because plaintiff's amended complaint remained prolix and otherwise did not
conform to Fed. R. Civ. Proc. 8).
But the district court had subject matter jurisdiction over what was a genuine legal
dispute: The State insisted Hand had to register and report under KORA, and he believed
he had a colorable equitable argument otherwise. As courts of general jurisdiction, the
district courts have constitutional jurisdiction to hear both civil and criminal cases. Kan.
Const. art. 3, § 1 ("The judicial power of this state shall be vested exclusively in one
court of justice, which shall be divided into one supreme court, district courts, and such
other courts as are proscribed by law."). The enabling legislation provides: "There shall
be in each county a district court, which . . . shall have general original jurisdiction of all
matters, both civil and criminal, unless otherwise provided by law." K.S.A. 20-301.
Given the continuing obligations imposed on Hand under KORA, we do not see the issue
as moot because he had begun to comply with the statutory scheme. And we do not think
Hand had to refuse to comply to test his laches argument as a defense to a criminal
charge for failing to register or report. Under the circumstances, Hand could have filed a
civil action seeking a declaratory judgment regarding his legal obligations under KORA.
See K.S.A. 60-1701 et seq.; see also Santa Rosa KM Associates v. Principal Life
Insurance, 41 Kan. App. 2d 840, 858, 206 P.3d 40 (2009) (recognizing purpose of
declaratory judgment actions as settling actual legal controversies before they result in
violations of the law or legal or contractual duties).
Had Hand filed a declaratory judgment action, he presumably would have sought a
permanent injunction to keep the State from enforcing KORA against him. See K.S.A.
60-1702 (upon notice district court may grant relief in addition to declaration of parties'
rights). That's what he ultimately wanted—to be left alone because the State came after
him six years after he completed his sentence.
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Given those contours, the March 3 hearing replicated what a trial in a declaratory
judgment action would have looked like. Each side got to present witnesses and other
evidence on the appropriateness of laches as excusing Hand from the obligations of
KORA. Because Hand sought only equitable relief, he would not have been entitled to a
jury trial in a declaratory judgment proceeding. See Texas Const. Co. v. Hoisting and
Portable Engineers' Local Union No. 101, 180 Kan. 393, 395, 304 P.2d 498 (1956)
(injunction action considered "purely equitable," so plaintiff not entitled to jury trial);
Jensen International, Inc. v. Kelley, 29 Kan. App. 2d 836, 843-44, 32 P.3d 1205 (2001)
(no right to jury trial in declaratory judgment action raising essentially equitable claims
or issues); cf. Hunter Health Clinic v. Wichita State University, 52 Kan. App. 2d 1, Syl.
¶ 6, 362 P.3d 10 (2015) ("injunction provides an equitable remedy").
We have recognized that an action filed in the district court generally should be
treated for what it is based on the nature of the claim rather than how it has been styled,
so long as there is subject matter jurisdiction. In re Estate of Heiman, 44 Kan. App. 2d
764, 769-70, 241 P.3d 161 (2010) (recognizing that pleading styled as Chapter 59 probate
action should be treated as Chapter 60 civil action and district court had general
jurisdiction to hear both types of actions following court unification in 1977). In the
absence of any objection from the parties or the district court's own interjection, Hand's
request for relief based on laches functionally amounted to a declaratory judgment action.
Although the gulf between his motion and a declaratory judgment filing under K.S.A. 60-
1701 et seq. may be wider than the differences between a Chapter 59 petition and a
Chapter 60 petition, the basic principle drawn from Estate of Heiman applies. Everyone
in the district court acquiesced in handling the motion that way and in reaching the merits
of the dispute. As we have indicated, however, the district court properly could have
exercised its discretion to have required Hand to proceed more formally with a
declaratory judgment action.
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We, therefore, reject the State's argument on appeal that Hand had no statutory
basis to seek review of the district court's ruling because the order was entered in a
criminal case. Given the State's acquiescence in the district court to proceeding on the
motion to the merits of the legal dispute, we are disinclined to credit its position that
Hand cannot now appeal the adverse ruling. The State's desire to retain the benefit of the
district court's ruling while disclaiming any basis for appellate review sounds a lot like
eating a cake and having it, too. And that sort of gaming runs up against notions of
judicial estoppel. See Estate of Belden, 46 Kan. App. 2d at 262-63 (Judicial estoppel
precludes a party from taking a legal position to prevail in an early phase of case and
taking a contrary position to prevail in a later phase.). A party has the statutory right to
appeal an adverse ruling in a declaratory judgment action. K.S.A. 60-1709. Although the
labels in the paperwork may be askew, the substantive issue before us is not.
The dissent contends both the district court and this court lack subject matter
jurisdiction over Hand's claim. But the dissent misapprehends the basis for the claim and
offers several additional arguments that miss the jurisdictional mark, given the broad
authority of district courts to hear both civil and criminal cases. Hand is not challenging
the legality of the district court's order contained in the journal entry of judgment in the
criminal case that he register and report under KORA. Rather, he says—based on the
doctrine of laches—the State has lost the right to enforce that order because it delayed
more than six years to directly inform him of that obligation. Accordingly, Hand could
not have asserted a laches claim when he was sentenced, since it depends upon the
inequity of the lengthy delay. Regardless, we all agree Hand's assertion of laches is
untenable on the merits.
The dissent points out the journal entry of judgment refers to KORA registration,
as we mentioned, and thus afforded Hand at least constructive notice of his obligations.
The dissent also cites the legal fiction that everyone is presumed to know the law, so
Hand should have understood from the outset that he had an obligation to register and
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report in compliance with KORA as a convicted drug offender. Those observations forge
another argument against affording Hand equitable relief based on laches because he had
constructive and presumptive knowledge that KORA applied to him. In turn, he should
have inquired of his probation officer or some other government agent about that
obligation and could not equitably have remained silent despite the State's inaction. See
Bouton v. Byers, 50 Kan. App. 2d 34, 61, 321 P.3d 780 (2014) (recognizing maxim that a
party must do equity to receive equity). But the argument, whatever its strength, goes to
the substance of Hand's claim and not the jurisdictional foundation for the district court
or this court to consider it.
The dissent next points out a criminal defendant must file a direct appeal of a
conviction, sentence, or KORA registration within 14 days after the district court's
imposition of judgment. And Hand didn't file his laches claim until years later. But
Hand's complaint doesn't rest on the initial imposition of KORA registration; it depends
upon the State's ostensibly inequitable delay (measured in years) in enforcing the
registration and reporting requirements. As we have said, Hand could not have asserted
laches two weeks after the entry of judgment. The claim did not then exist. That does not
deprive the district court of subject matter to hear an equitable claim of laches after the
passage of an undue amount of time—the very circumstance upon which the doctrine
rests. In short, Hand passed through the courthouse doors and could present his laches
claim for a determination on the merits. The district court had subject matter jurisdiction.
In the absence of any objection to the procedural vessel containing the claim, the district
court properly reached the merits.
Along this same line, the dissent says Hand's sentence was final when pronounced
and cannot now be modified. Although that's true, it's beside the point, since Hand isn't
trying to tinker with his sentence. KORA reporting and registration is not punitive and,
therefore, does not constitute a component of a defendant's sentence. See Carter, 311
Kan. at 210; State v. Huey, 306 Kan. 1005, 1009-10, 399 Kan. 211 (2017). Hand's motion
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should be considered based on the claim asserted and relief sought—an equitable bar of
laches requiring release from a civil statutory obligation. The district court had subject
matter jurisdiction to consider (and deny) the claim.
Finally, the dissent tries to conjure an absence of subject matter jurisdiction
because Hand made his request in a submission styled as a motion in the criminal case
rather than in a Chapter 60 petition. The cases the dissent cites for support actually
illustrate the fallacy of that position. So in State v. Warrior, 303 Kan. 1008, 1010, 368
P.3d 1111 (2016), the court affirmed the district court's denial of a motion to correct an
illegal sentence because the constitutional challenge fell outside the scope of K.S.A. 22-
3504, the governing statute. The court did not dismiss for lack of subject matter
jurisdiction. Similarly, in State v. Trotter, 296 Kan. 898, 898, 295 P.3d 1039 (2013), the
court affirmed the denial of a misguided motion to correct an illegal sentence that
attacked the underlying judgment of conviction rather than the resulting sentence. The
basis for those rulings was the inapplicability of K.S.A. 22-3504 and not the absence of
subject matter jurisdiction.
If anything, those cases support our observation the district court should have
denied Hand's motion without prejudice either at the request of the State or on its own in
favor of a declaratory judgment action. But they do not stand for the proposition that the
district court and, in turn, our court lacked subject matter jurisdiction to consider Hand's
claim. Again, if that were true, not only should this appeal be dismissed but the district
court's order should be vacated.
Conclusion
On that substantive issue, Hand cannot rely on laches to avoid having to register
and report under KORA as a drug offender. The district court ruled correctly following a
full evidentiary hearing on the claim.
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Affirmed.
***
ARNOLD-BURGER, C.J., dissenting: I respectfully dissent. I have no disagreement
with any of the majority's conclusions on laches and its inapplicability here. I also
applaud its graciousness in treating this as a declaratory judgment action—even with no
evidence to suggest that Timothy Ray Hand's attorney sought to file it as such—and
thereby find another way to affirm the district court. And I have no doubt that this claim
fails on the merits any way you slice it. But I think we have overstepped our bounds by
not simply dismissing this appeal for lack of jurisdiction.
In Kansas, the right to appeal is statutory, and appellate courts have jurisdiction to
entertain an appeal only if the litigant files their appeal in the manner prescribed by
statute. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). When the circumstances
of a case suggest a lack of appellate jurisdiction, a court has a duty to examine
jurisdiction on its own initiative. State v. Delacruz, 307 Kan. 523, 529, 411 P.3d 1207(2018). Whether a court possesses jurisdiction is a question of law subject to plenary
appellate review. Smith, 304 Kan. at 919.
Appellate courts have jurisdiction under K.S.A. 2020 Supp. 22-3602(a) to consider
a direct appeal by a defendant who pleaded guilty or nolo contendere and challenges a
district court's order that the defendant comply with the Kansas Offender Registration
Act (KORA), K.S.A. 22-4901 et seq. State v. Marinelli, 307 Kan. 768, Syl. ¶ 2, 415 P.3d
405 (2018). When a district court imposes the conviction and sentence on a criminal
defendant, the judgment becomes final and appealable. See State v. Weekes, 308 Kan.
1245, 1249, 427 P.3d 861 (2018) ("The final judgment in a criminal case is the
sentence.").
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Our Supreme Court has concluded that imposition of the duty to register in the
journal entry controls over anything the court states during sentencing. See State v.
Carter, 311 Kan. 206, 210-11, 459 P.3d 186 (2020) (statement in journal entry controlled
over statement pronounced at sentencing for KORA registration). Although the parties
agree that the district court never orally advised Hand of his duty to register, the
requirement was in the journal entry of sentencing, twice. The court originally sentenced
Hand on December 20, 2011. The journal entry of sentencing, albeit 12 pages long, noted
that he had to register on five of those pages. The court later modified the journal entry to
reflect a controlling, underlying prison term of 30 months under the double rule. The
modified journal entry also noted, on five separate pages, Hand's obligation to register.
Moreover, Hand was required to register under a category of offences that statutorily
require registration. In these types of cases, "the legal obligation to register springs from
the existence of statutory conditions, such as a conviction of a specified offense, and are
not dependent on a court's discretion or factual determinations." Marinelli, 307 Kan. at
785.
Like Carter, Hand's argument on appeal disregards the journal entry and does not
explain why the journal entry does not qualify as adequate notice of his duty to register.
See 311 Kan. at 210. And like the defendant in Marinelli, 307 Kan. at 791-92, Hand does
not argue he was prejudiced in any way by his delay in discovering that he needed to
register under KORA. He also offers no authority supporting his claim that this court
should excuse his registration under these facts. And finally, he presents no argument
about why he is not bound by the longstanding legal assumption that he is presumed to be
aware of the law related to his conviction which statutorily requires registration. See State
v. Ellington, 314 Kan. 260, 262, 496 P.3d 536 (2021) (ignorance of the law cannot
establish excusable neglect). For these reasons, he has failed to establish that the court
should excuse him from complying with the statutory appeal provisions.
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A criminal defendant has 14 days from the imposition of judgment to appeal to the
appropriate appellate court. K.S.A. 2020 Supp. 22-3608(c). The only way Hand could
have attempted to avoid registering was to appeal his sentence within 14 days. Hand filed
this action, in his criminal case, nine years too late. The district court had no jurisdiction
to hear the case, so neither do we. See Bartlett Grain Co. v. Kansas Corp. Commission,
292 Kan. 723, Syl. ¶ 4, 256 P.3d 867 (2011).
There are at least two more reasons to support my belief that we lack jurisdiction.
First, Hand's criminal case is over and final. Once the district court announced a
legal sentence—and the parties agree that Hand's sentence was legal—subject to a few
exceptions—none of which apply here—the court lacked jurisdiction to modify it. See
State v. Tafoya, 304 Kan. 663, 666-67, 372 P.3d 1247 (2016). Here, not only was Hand's
sentence announced, but he had completed it. The district court no longer had jurisdiction
in the case in which the motion was filed. Decisions made by a court without subject
matter jurisdiction are legally void. Travelers Cas. Insurance v. Karns, 61 Kan. App. 2d
44, 60-61, 2021 WL 4217506, at *10 (2021).
Second, as the State points out, K.S.A. 2011 Supp. 22-4908 provided then— as it
does now:
"No person required to register as an offender pursuant to the Kansas offender
registration act shall be granted an order relieving the offender of further registration
under this act."
So Hand is statutorily barred from seeking to prevent enforcement of his
registration requirement. In other words, he has no cause of action. Subject matter
jurisdiction is vested by statute and establishes the court's authority to hear and decide a
particular type of case. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204
14
P.3d 562 (2009). District courts "shall have general original jurisdiction of all matters,
both civil and criminal, unless otherwise provided by law." (Emphasis added.) K.S.A. 20-
301. Kansas statutes prevent Hand from bringing this claim in any court.
But the majority asserts that although Hand's claim may fail, the court still has
jurisdiction to entertain it. Slip op. at 7, 10. They contend that even though this may not
have been the proper procedural vehicle, neither party objected to it and the district court
ruled on the merits. So we must do the same. Slip. op. at 8, 10. I disagree for three
reasons.
First, whether the parties agreed at the time that the court had jurisdiction to hear
this matter in Hand's criminal case is irrelevant. Parties cannot confer subject matter
jurisdiction by consent, waiver, or estoppel, and a failure to object will not invest the
court with the requisite jurisdiction. Moreover, if the district court lacks jurisdiction to
enter an order, an appellate court does not acquire jurisdiction over the matter on appeal.
Ryser v. Kansas Bd. of Healing Arts, 295 Kan. 452, 456, 284 P.3d 337 (2012).
Second, the majority believes that Hand had a civil remedy for declaratory
judgement. I will not speculate. But the tactical decision of which procedural vehicle to
use to pursue a claim has consequences. See State v. Warrior, 303 Kan. 1008, 1010, 368
P.3d 1111 (2016) (finding a motion to correct an illegal sentence is not the proper
procedural vehicle to challenge the constitutionality of a sentence, so court was correct to
deny the motion); State v. Trotter, 296 Kan. 898, 905, 295 P.3d 1039 (2013) (void
judgment nullity that may be vacated at any time; yet must be raised in proper procedural
vehicle, so court denied request to vacate judgment). Hand had counsel throughout this
matter. We should not convert his claim to one he did not make by judicial fiat because
we believe it to be a better fit.
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Finally, just because a district court has jurisdiction over both criminal and civil
cases does not mean it has jurisdiction over an untimely or statutorily barred claim filed
in a criminal case as long as it can be couched in terms of a civil case without such time
limitations. Jurisdiction is not that fluid.
For these reasons, I would dismiss this appeal for lack of jurisdiction.
16