IF THE DEFENDANT IS CHARGED WITH A FELONY AT THE PRELIMINARY HEARING, MAY THE JUDGE LESSEN THE CHARGE TO A MISDEMEANOR?

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.

State v. Leslie, 237 Kan. 318 (1985).

This case answers the following question:

If the defendant is charged with a felony at the preliminary hearing, may the magistrate lessen the charge to a misdemeanor?

The issue in this case included whether the magistrate judge could decline to bind a defendant over for trial for a felony charge and instead impose an uncharged misdemeanor at the preliminary hearing and subsequently accept a plea for the uncharged misdemeanor. Id. at 318. K.S.A. 22-2902 provides that while at the preliminary hearing process: “the magistrate shall order the defendant bound over to the district judge … otherwise the magistrate shall discharge the defendant.” Id. The Court stated that a magistrate has only two options at the conclusion of the preliminary hearing: they may either bind the defendant over on a felony for trial or they may discharge the defendant. Id. at 318-19.

In the current case, the defendant was charged with the felony of aggravated sexual battery. Id. at 318. At the preliminary hearing, the magistrate declined to bind the defendant over for trial on the felony aggravated sexual battery charge and instead bound the defendant over on an uncharged misdemeanor of sexual battery. Id. After doing so, the magistrate then accepted the defendant’s guilty plea of misdemeanor sexual battery. Id. The State appealed and contended that the magistrate lacked jurisdiction to do so. Id. This Court agreed and stated that, at the preliminary hearing, the magistrate must either bind the defendant over to trial on the felony charge or discharge the defendant under K.S.A. 22-2902. Id. at 319. The Court concluded that the magistrate lacked jurisdiction to bind and accept the defendant’s guilty plea on the misdemeanor charge, thus the magistrate’s actions were void. Id. The defendant then argued that, irrespective of the decision on the first issue, jeopardy has attached so no further criminal proceedings are possible from the incident at bar. Id. The Court ruled that since the magistrate had no jurisdiction as to the misdemeanor charge, all of the proceedings relative to that charge cannot constitute jeopardy. Id. Therefore, the State may exercise its prosecutorial discretion and refile the charge against the defendant, so long as there is no violation of the statute of limitations . Id.