Order for DNA testing is not final judgment for question reserved appeal

Richard Ney won in State v. LaPointe, No. 112,019 (Kan. March 3, 2017), obtaining dismissal of a state's appeal from an order granting DNA testing in a Johnson County aggravated robbery prosecution. Mr. LaPointe filed a motion for DNA testing about seven years after his convictions were affirmed on direct appeal. The district court granted the motion for DNA testing over the state's objections. The state then appealed "upon a question reserved." The COA dismissed the appeal for lack of jurisdiction because an order for DNA testing is not a final judgment. The KSC conducted an exhaustive review of the history of question-reserved appeals and concluded that the final-judgment rule was appropriate for such appeals as well:  

First, "[i]nherent in appeals as a matter of right by the prosecution," including in question-reserved appeals, "is the element that the trial court has entered a final judgment in the case."

Requiring a final judgment fits with the purpose of a question-reserved appeal, which is to resolve important questions going forward even though resolution will not impact the defendant in the present case. 

Second, this court has more recently focused on a different aspect of question reserved appeals: They may proceed only where they seek a ruling on "questions of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes." State v. Leonard, 248 Kan. 427, 432, 807 P.2d 81 (1991)."

 Here, the State explains that it does not seek to impact LaPointe's case and instead only seeks "clarification concerning other criminal defendants who are neither convicted of murder nor rape but who are serving lengthy sentences based on their extensive criminal history." It contends it may appeal the district court's order granting testing upon a question reserved and acknowledges that the primary stumbling block for its attempted appeal is not whether there is an issue of statewide interest, but, rather, whether there has been a final judgment.

The KSC rejected the state's claim that there was a final judgment in this case, noting that under K.S.A. 21-2512, even after testing is completed, the district court has further proceedings and decisions. The KSC also rejected the state's theory that the district court's order had become final after the initiation of the appeal when it denied Mr. LaPointe a new trial. Lacking a proper basis for appeal, the KSC affirmed the COA's dismissal.