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  Kubby Appeals To Calif. Supreme Court
Posted by CN Staff on May 24, 2002 at 16:32:45 PT
For Immediate Release  
Source: Kubby Files 

medical Steve Kubby and his attorney Scott Concklin filed a petition with the California Supreme Court asking for a review of a recent decision by the Third District Court of Appeals which labeled Mr. Kubby as a "fugitive" and denied him a hearing.

The Court of Appeal held that "a misdemeanant who flees the state's jurisdiction to escape his jail term . . . has no right to ask the state's courts to review the very judgment that the fugitive flaunts."

Although there is authority which holds that a felony appeal may be dismissed where the convicted felon is a fugitive from justice, the Court of Appeal found no authority which holds that a misdemeanor appeal may be dismissed on that basis. By dismissing this misdemeanor cross appeal, the Court of Appeal was the first court to ever so hold.

Mr. Kubby believes that a review by the California Supreme Court is necessary. because the decision of the Court of Appeal incorrectly decided an open and important issue of law. It is an important issue of law because: "'In California, the right to appeal is granted by law to every convicted person; it is one of the most important rights possessed by a convicted defendant, and every legitimate element should be exercised in its
favor.'"

Mr. Kubby is also arguing that he did not flee to Canada. Instead, he relocated to Canada with the permission of the trial court, upon the understanding that he would return to the jurisdiction at the next court appearance.

Mr. Kubby did appear at the next court appearance (April 27, 2001), and at that hearing, the court was aware that he was living in Canada when it set a surrender date of July 20, 2001. Hence, it was understood that Mr. Kubby would be living at his home in Canada in the interim. He did not violate his probation by fleeing to Canada.

The bench warrant was issued for violation of probation when he failed to return from Canada on July 20, 2001 to serve the incarceration condition of probation. A bench warrant issued upon an ex parte petition to revoke probation, based on an allegation that the probationer violated a term or condition of probation, is deemed a "summary revocation of probation."

A summary revocation of probation is merely a procedural device to maintain jurisdiction so that the allegation can be litigated at a later date. The summary revocation does not itself prove the violation of probation. That can only be done at a formal hearing where the probationer is afforded due process of law.

As the case now stands, Mr. Kubby's cross appeal was ordered dismissed based on an unadjudicated allegation of misdemeanor probation violation that has resulted in the issuance of a bench warrant. It stands on the same procedural footing as any other unadjudicated probation violation allegation upon which a bench warrant might issue. It is the same as a bench warrant issued upon an unadjudicated allegation that a probationer has failed to
make restitution, or report to the probation officer, or obey all laws.

Unlike felony jurisdiction, under California law, in a criminal case involving a misdemeanor offense, the defendant may appear entirely through counsel. Thus, the felony jurisdiction rationale used by the Appeals Court does not apply to cases involving misdemeanors. Here, petitioner cross appeals from a judgment of conviction (order granting probation) on two misdemeanor counts.

Although the People's appeal seeks to elevate one misdemeanor count to a felony, "an appeal taken by the people in no case stays or affects the operation of a judgment in favor of a defendant, until judgment is reversed." Consequently, defendant is a misdemeanant who is entitled to appear in the Court of Appeal entirely through counsel. The Appeals Court theory of felony jurisdiction, with its requirement of actual or constructive custody, is inapplicable to him. His cross appeal from a misdemeanor conviction should not have been dismissed.

A complete copy of the Calfornia Supreme Court Appeal is available via email, upon request. It is expected to take about three months for the California Supreme Court to respond to Mr. Kubby's petition.

This Petition for Review was filed in the Supreme Court on 5/16/02.

See: http://appellatecases.courtinfo.ca.gov/search/dockets.cfm?dist=0&doc_id=207826&case=S106757

Contact:
Steve Kubby -- 604-885-7651
Scott Concklin -- 530-243-8510

Source: The Kubby Files
Release Date: May 23, 2002
Pot-TV: http://www.pot-tv.net/
Website: http://www.kubby.org/

Canadian Court Rules Kubby Not Fugitive
http://cannabisnews.com/news/thread12887.shtml

Laws on Medical Pot Draw Americans to Canada
http://cannabisnews.com/news/thread12665.shtml

Pot Activist Held for Three Days in Canada
http://cannabisnews.com/news/thread12663.shtml

California Men Face Hearing in Canada
http://cannabisnews.com/news/thread12562.shtml


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Comment #2 posted by 2Spooky on May 25, 2002 at 08:20:32 PT
Very Educating Post
I have been waiting for a new story that lays out the issues in a way that explains each one in depth. Whoever wrote this really did their homework.

Thanks for a great job. Really answers all my questions.

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Comment #1 posted by The GCW on May 24, 2002 at 18:30:05 PT
Memorial Day & Kubby
Today is the beginning of a 3 day weekend where I will consider the loss of life due to this war on drugs.

The memorial of those who have fought and lost. The memorial of those who were not even fighting but have lost their lives.

This memorial day, I will think of The Kubby family, who although they are alive, it is not due to the governments efforts, that that is the case.

The U.S. gov. would just assume kill Kubby in a cage, and would have if the Kubby family did not resort to the freedom of Canada.

Kubby, You are alive today. Yet it still seems right to honor you on Memorial day.

And thanks for what your doing for My Family.



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