ARE YOU ENTITLED TO A LAWYER AT YOUR PRELIMINARY HEARING?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Stewart v. State, 476 P.2d 652 (Kan. 1970).

This case answers the following question:

Are you entitled to a lawyer at your preliminary hearing?

The issue in this case is whether one is entitled to have a lawyer present at the preliminary hearing. A person accused of a felony has no constitutional right to be furnished counsel at his preliminary hearing and failure to provide counsel at such time is not error in absence of a showing of prejudice to the substantial rights of the accused.

In this case, Stewart entered a guilty plea to a charge of grand larceny of an automobile. The sentencing court granted him probation. Two months later, a Missouri probation officer filed a report stating that Stewart had violated his parole in a number of incidents. The officer recommended that Stewart’s probation be revoked. Counsel was appointed to represent Stewart at trial, and Stewart’s probation was revoked at a hearing before the trial court. Stewart eventually appealed after further proceedings. On appeal, Stewart argues that he was denied his constitutional right to have counsel at his preliminary hearing and that the State failed to establish he violated the terms of his probation.

A person accused of a felony has no constitutional right to be furnished counsel at his preliminary hearing and failure to provide counsel at such time is not error in absence of a showing of prejudice to the substantial rights of the accused. When Stewart appeared at his preliminary hearing, his constitutional rights were fully explained to him by the magistrate, and Stewart did not request counsel. Further, later, when represented by counsel, Stewart pled guilty to the charge, so he is unable to object to the lack of or sufficiency of a preliminary hearing. Stewart waived his preliminary hearing, and he did not enter any plea to the charges. Nothing at the preliminary hearing was used against Stewart at his sentencing. There is nothing in the record that shows Stewart was prejudiced in any way by not having counsel at the preliminary hearing.

Regarding the second issue, the defendant argues the State failed to establish he violated the terms of his probation. However, the defendant makes no argument that there were any constitutional irregularities in the proceedings, rather he seeks a review of the evidence. A review of the evidence is not supposed to occur under a motion to vacate. Only questions arising under the Constitution of the United States, the Kansas state constitution, or Kansas state laws would be proper to raise in this type of proceeding. Therefore, with the lack of constitutional irregularities, the court is unable to review the proceedings to revoke probation.

The Supreme Court of Kansas affirmed the decision of the trial court. The court held that Stewart did not have a constitutional right to have counsel present at his preliminary hearing. Further, the court found that the lack of counsel at the preliminary hearing did not prejudice Stewart in any way. The trial court did not err in denying Stewart any relief sought in his motion.