What Is the Maximum Time Between an Initial Appearance and Preliminary Hearing?

In State v. Winter, 203 Kan. 458 (1969), the Kansas Supreme Court addressed the issue of how much time may pass between a defendant's initial appearance before a magistrate and the preliminary examination hearing, along with whether this period can be extended if necessary.

Key Points from State v. Winter:

1. Maximum Time Between Initial Appearance and Preliminary Hearing:

   • According to K.S.A. 62-611, once a defendant is brought before the magistrate on felony charges, the preliminary examination must take place without undue delay. The statute specifies that the hearing should be held within ten days from the defendant’s initial appearance before the magistrate, unless the defendant consents to a delay.

2. Permissible Extensions:

   • A magistrate may adjourn or postpone the preliminary hearing for up to ten days at a time without the consent of the defendant, but any further extension requires the defendant's agreement. The statute allows flexibility in case of necessary or reasonable delays, but there must be valid reasons, and the hearing cannot be postponed indefinitely without consent.

3. Case Facts:

   • In this case, Winter was arrested on February 14, 1967, for first-degree murder. His preliminary hearing was initially scheduled for February 28, 1967, more than ten days after his first appearance before the magistrate. Winter’s counsel raised the issue that this exceeded the ten-day limit without his consent, arguing it violated his rights under K.S.A. 62-611.

4. Court’s Decision:

   • The Kansas Supreme Court held that the delay in Winter’s case was permissible because the continuance was requested by his own counsel, and it was for Winter’s benefit. Since the extension was not arbitrary or unreasonable, and the defendant did not claim that the delay impacted his right to a fair trial, the court found no violation of K.S.A. 62-611.

   • The court emphasized that a magistrate may grant extensions beyond the ten-day period only with the defendant’s consent, as was the case here. Further, the court noted that there were no allegations of an unfair trial or unreasonable delay.

Conclusion:

Under Kansas law, K.S.A. 62-611, a preliminary hearing must be held within ten days of the defendant’s initial appearance unless the defendant consents to a delay. The magistrate has the authority to extend the hearing up to ten days at a time without the defendant’s consent, but anything beyond that requires approval from the defendant. In State v. Winter, the court concluded that there was no violation of this rule because the delay in the preliminary hearing occurred with the defendant’s consent and for his benefit. The case demonstrates that while the statutory timeline exists, reasonable and justified delays are acceptable, especially when requested by the defendant or their counsel.