State v. Crouch & Reeder ( 1982 )

Holmes, J.,

dissenting.

I respectfully dissent from the ultimate conclusion of the majority that the trial court erred in dismissing the complaints against the defendants and in discharging them.

It is clear that the majority is of the opinion that the sanctions to be imposed for a violation of K.S.A. 22-2901 lie within the sound discretion of the trial court. I agree. The majority concedes that the trial court has the power to dismiss a criminal complaint with prejudice for violation of K.S.A. 22-2901 but determines that “this was not an appropriate case” for such a dismissal. I disagree.

The record indicates that the prolonged imprisonment of the defendants without being brought before a magistrate “without unnecessary delay” was not an isolated or rare incident in Geary County. Evidently the practice had prevailed for some time and while the trial judge was understandably reluctant to place specific blame for such delays, he did state for the record: “The Court does .... find that the fault lies with the situation in which the County Attorney’s Office in this county has to work, which is not the fault of that office.” As noted by the majority, it was the responsibility of the county attorney to see that K.S.A. 22-2901 was complied with. However, the county attorney, in his brief and in arguments before this court, offered no explanation or excuse for the delay. The best that could be said is that the county attorney’s office is now aware of the problems and is hopeful they have been rectified. Evidently the action of Judge Christner in this case got someone’s attention.

The majority, in effect, has found that Judge Christner abused his discretion. In my opinion the trial court did not abuse its discretion and I would affirm the trial court.

Fromme and Miller, JJ., join the foregoing opinion.