Source or Prior Law:

62-1414, 62-1601, 62-1602, 62-1603, 62-1604, 62-1723.

Law Review and Bar Journal References:

Cited in comment concerning habitual criminal act and sentence increase upon second trial for same offense, John E. Caton, 11 W.L.J. 301, 302 (1972).

"Habeas Corpus in Kansas: The Great Writ Affords Postconviction Relief at K.S.A. 60-1507," Martha J. Coffman, 67 J.K.B.A. No. 1, 16 (1998).

Criminal Procedure Edition, 47 K.L.R. 937 (1999).

"Criminal Procedure Survey of Cases," 48 K.L.R. 895 (2000).

"Criminal Procedure Survey of Recent Cases," 49 K.L.R. 937 (2001).

"Criminal Procedure Survey of Recent Cases," 50 K.L.R. 901 (2002).

"Criminal Procedure Survey of Recent Cases," Matt Corbin, Editor, 51 K.L.R. 659, 758 (2003).

"Criminal Procedure Survey of Recent Cases, Kansas Issue," 52 K.L.R. 771 (2004).

CASE ANNOTATIONS

1. Provisions authorizing the filing of a motion for new trial within two years after final judgment on the ground of newly discovered evidence have no application to criminal cases in which judgment was rendered prior to July 1, 1970. State v. Hemminger, 207 Kan. 172, 177, 483 P.2d 1096.

2. Subsection (1) mentioned; facts known by defendant at trial; not newly discovered evidence. State v. Williamson, 210 Kan. 501, 506, 502 P.2d 777.

3. Granting of motion within discretion of court; not ordinarily granted unless court satisfied different verdict would probably result. State v. Larkin, 212 Kan. 158, 510 P.2d 123.

4. No necessity to rule on motion where defendant acquitted; appellate court cannot reinstate jury verdict of guilty. State v. Gustin, 212 Kan. 475, 480, 510 P.2d 1290.

5. Mentioned; grant of motion for new trial within sound discretion of trial court. State v. Parker, 213 Kan. 229, 233, 516 P.2d 153.

6. Motion not ruled on until one year after it was filed; delay justified; court not deprived of jurisdiction to impose sentence. State v. Milum, 213 Kan. 581, 584, 516 P.2d 984.

7. Failure to give cautionary instruction regarding testimony of accomplices not error when testimony corroborated. State v. Lamb, 215 Kan. 795, 801, 530 P.2d 20.

8. Trial court did not abuse discretion in refusing new trial on basis of newly discovered evidence. Jackson v. State, 1 Kan. App. 2d 744, 745, 746, 573 P.2d 637.

9. No abuse of discretion shown in refusal of trial court to grant new trial; conviction under K.S.A. 41-2704 affirmed. State v. Davidson, 2 Kan. App. 2d 463, 465, 581 P.2d 1190.

10. Presence of convicted defendant not required at hearing on postverdict motion for new trial. State v. Bryant, 227 Kan. 385, 390, 607 P.2d 66.

11. Mentioned in upholding failure to disqualify trial judge for alleged personal bias and prejudice. State v. Foy, 227 Kan. 405, 413, 607 P.2d 481.

12. No abuse of discretion in denying new trial; conviction under K.S.A. 65-4127a upheld. State v. Goodwin, 4 Kan. App. 2d 81, 82, 603 P.2d 194.

13. Conviction affirmed; rules for valuation of property reviewed. State v. Robinson, 4 Kan. App. 2d 428, 434, 608 P.2d 1014.

14. Motion for new trial is stage within purview of K.S.A. 22-4503 requiring that counsel be provided. State v. Andrews, 228 Kan. 368, 375, 376, 377, 614 P.2d 447.

15. Rules relative to new trial based on newly discovered evidence discussed and applied. State v. Myrick & Nelms, 228 Kan. 406, 422, 423, 616 P.2d 1066.

16. Considered in construing K.S.A. 21-4603 as permitting court to retain jurisdiction and act on timely motion for probation or sentence reduction after 120-day period. State ex rel. Owens v. Hodge, 230 Kan. 804, 812, 641 P.2d 399 (1982).

17. Motion for new trial based on newly discovered evidence denied. State v. Shepherd, 232 Kan. 614, 619, 657 P.2d 1112 (1983).

18. New trial not granted on basis of newly discovered evidence tending to impeach or discredit witness. State v. Richard, 235 Kan. 355, 363, 681 P.2d 612 (1984).

19. Evidence not newly discovered if witnesses and testimony known but not produced at time of trial. State v. Littlejohn, 236 Kan. 497, 502, 503, 694 P.2d 403 (1985).

20. Rules governing motions for new trial based upon newly discovered evidence stated and applied. State v. Hobson, 237 Kan. 64, 66, 697 P.2d 1274 (1985).

21. Rules governing motion for new trial reiterated; no abuse of discretion where court found new evidence inherently unreliable. State v. Holley, 238 Kan. 501, 510, 712 P.2d 1214 (1986).

22. Cited; rules relative to granting new trials following third trial for first degree murder examined. State v. Armstrong, 240 Kan. 446, 450, 731 P.2d 249 (1987).

23. Cited; merely tending to impeach or discredit witness evidence available at trial, materiality examined. Baker v. State, 243 Kan. 1, 3, 12, 755 P.2d 493 (1988).

24. Cited; various factors in determining merit of motion for new trial based on newly discovered evidence examined. State v. Dunn, 243 Kan. 414, 437, 758 P.2d 718 (1988).

25. Cited; trial court's failure to state specific findings for granting new trial as not grounds for reversal examined. State v. Neal, 243 Kan. 756, 763 P.2d 621 (1988).

26. K.S.A. 60-1507 provides method to request new trial for newly discovered evidence after statute has run. State v. Bradley, 246 Kan. 316, 318, 787 P.2d 706 (1990).

27. Denial of motion for new trial, both on merits and lack of jurisdiction, examined. State v. Nunn, 247 Kan. 576, 581, 802 P.2d 547 (1990).

28. Reversal for prosecutorial misconduct warranted only when appellant shows conduct prejudicial to substantial rights. State v. Crabtree, 248 Kan. 33, 38, 805 P.2d 1 (1991).

29. Rules governing motions for new trial based upon newly discovered evidence reiterated. State v. Redford, 248 Kan. 130, 131, 804 P.2d 983 (1991).

30. New trial motion and K.S.A. 60-1507 motion attacking sentence can proceed simultaneously. State v. Harris, 249 Kan. 410, 413, 819 P.2d 1169 (1991).

31. Motion for new trial does not suspend time for filing notice of appeal from magistrate's decision. State v. Wilson, 15 Kan. App. 2d 308, 312, 808 P.2d 434 (1991).

32. Two-pronged test for determining when new trial based on newly discovered evidence is in best interest of justice examined; K.S.A. 60-1507 proceeding. Taylor v. State, 251 Kan. 272, 834 P.2d 1325 (1992).

33. Rights to fair and impartial jury and to confront witnesses when juror acquainted with defendant and witness examined. State v. Turley, 17 Kan. App. 2d 484, 486, 840 P.2d 529 (1992).

34. Time limit for hearing directive; no prejudice shown. State v. Hall, 252 Kan. 669, 672, 673, 847 P.2d 1288 (1993).

35. Defendant's pro se motion for new trial not based on newly discovered evidence, not timely filed; motion treated as post-conviction motion not requiring appointment of counsel. State v. Kingsley, 252 Kan. 761, 765, 851 P.2d 370 (1993).

36. Cited; no abuse of discretion in summarily denying motion to withdraw guilty plea without hearing and counsel; review of procedures governing hearings under section as guidance for hearings on K.S.A. 22-3210 motions. State v. Jackson, 255 Kan. 455, 458, 874 P.2d 1138 (1994).

37. Whether court erred by denying motion for new trial based on newly discovered evidence without hearing examined. State v. Thomas, 257 Kan. 228, 231, 891 P.2d 417 (1995).

38. Motion must be filed within 10 days of verdict; not filing of journal entry containing verdict. State v. Torrance, 22 Kan. App. 2d 721, 729, 922 P.2d 1109 (1996).

39. Trial court denial of motion for new trial based on alleged newly discovered evidence upheld. State v. Beard, 22 Kan. App. 2d 877, 879, 924 P.2d 1268 (1996).

40. No error in denying defendant's motion for a new trial. State v. Mullins, 267 Kan. 84, 91, 92, 977 P.2d 931 (1999).

41. On motion for new trial, error for trial court to deny motion without evaluating credibility of paper evidence claimed to be new. State v. Moncla, 269 Kan. 61, 4 P.3d 618 (2000).

42. No error in trial court's refusal to grant new trial based on court's determination that recanted testimony of prosecution witness was not credible. State v. McKinney, 272 Kan. 331, 33 P.3d 234 (2001).

43. No abuse of trial court's discretion in denying defendant's motion for new trial. State v. Moncla, 273 Kan. 856, 46 P.3d 1162 (2002).

44. Ineffective assistance claim not pursued on direct appeal did not constitute grounds for procedural default. Anderson v. Attorney General of State of Kansas, 342 F.3d 1140, 1141 (2003).

45. Error in denying defendant's motion for new trial based on newly discovered evidence. State v. Norton, 277 Kan. 432, 85 P.3d 686 (2004).

46. Prosecutor's discussion of withdrawal of protective order not newly discovered evidence necessitating a new trial. State v. Adams, 280 Kan. 494, 124 P.3d 19 (2005).

47. Trial court considers the credibility of evidence offered in support of a motion for new trial. State v. Cook, 281 Kan. 961, 994, 135 P.3d 1147 (2006).

48. District court's denial of new trial upheld; alleged new evidence found not relevant. State v. Smith, 39 Kan. App. 2d 64, 67, 176 P.3d 997 (2008).

49. Cited; in case involving extrajudicial evidence by juror, no new trial ordered on that basis. State v. Johnson, 40 Kan. App. 2d 1059, 1064, 198 P.3d 769 (2008).

50. Newly discovered evidence did not show reasonable probability of a different trial result. State v. Wilson, 41 Kan. App. 2d 37, 200 P.3d 1283 (2009).

51. Denial of continuance on motion for new trial upheld; rights to a trial transcript discussed. State v. Deal, 41 Kan. App. 2d 866, 206 P.3d 529 (2009).

52. The 14-day time limit for motions for new trial based on grounds other than newly discovered evidence is mandatory, not discretionary. State v. Holt, 298 Kan. 469, 313 P.3d 826 (2013).

53. There is no final judgment where there is no final sentence in a case. State v. Soto, 310 Kan. 242, 261, 445 P.3d 1161 (2019).

54. A motion for a new trial based on newly discovered evidence must be filed within two years after final judgment, and there are no exceptions that extend the time limitation. State v. Davidson, 315 Kan. 725, 727, 510 P.3d 701 (2022).