When case remanded for resentencing, it's not final

Elizabeth Seale Cateforis won in Baker v. State, No. 100,501 (Kan. August 5, 2013)(modified opinion), reversing a summary denial of Mr. Baker’s habeas motion based on a one-year statute of limitations.  On June 9, 2006, the KSC affirmed Mr. Baker’s conviction, but remanded for resentencing .  On December 21, 2006, the district court  resentenced Mr. Baker, and Mr. Baker did not appeal from that resentencing.  On August 6, 2007, Mr. Baker filed a motion pursuant to K.S.A. 60-1507 claiming IAC of trial counsel.  The district court held that the motion was filed more than one year after the KSC affirmed the conviction and therefore was untimely.  Mr. Baker argued that the one-year time limit should run from the time of resentencing (and any possible direct appeal from that resentencing).  The COA and the KSC agreed with Mr. Baker:

After construing K.S.A. 60-1507 as a whole and in harmony with Supreme Court Rule 183, we hold that under the facts of this case, the 1-year time limitation in which to file a K.S.A. 60-1507 motion does not begin until the time to appeal from the resentencing expires. As discussed above, Rule 183(c)(2) prohibits pursuit of a motion under K.S.A. 60-1507 while an appeal is pending or during the time within which an appeal may be perfected.

Moreover, K.S.A. 60-1507(f)(1)(i) requires a motion to be filed within 1 year of "[t]he final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction." Since Baker still had the right to appeal from his resentencing there was not yet a "final order." The 1-year time limitation for filing a motion could not begin until after the time for appeal from resentencing expired.

So Mr. Baker gets consideration of his motion on the merits.

[Update: the state filed a motion for rehearing/modification from the KSC's original June 7, 2013 decision on June 12, 2013.]

[Further update: the KSC filed a modified opinion on August 5, 2013--linked above--and denied the state's motion for rehearing/modification as moot. The mandate issued on August 5, 2013.]