Commencement of prosecution

22-2301. Commencement of prosecution. (1) Unless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate. A copy of the complaint shall forthwith be supplied to the county attorney of the county and a copy thereof shall be furnished to the defendant or said defendant's attorney upon request. (2) A judge of the district court may in extreme cases, upon affidavits filed with such judge of the commission of a crime, order the county attorney to institute criminal proceedings against any person, but any such judge shall be disqualified from sitting in any case wherein such order was entered and is further prohibited from communicating about such case with any other judge appointed to preside therein. History: L. 1970, ch. 129, § 22-2301; L. 1976, ch. 163, § 2; January 10, 1977. Source or Prior Law: 62-601, 62-602. Cross References to Related Sections: Requirements for lawful complaint for prosecution under uniform act regulating traffic on highways, see 8-2108. Law Review and Bar Journal References: Section implies that it is the right of any citizen to file a complaint alleging the commission of a crime, Richard H. Seaton and Paul E. Wilson, 39 J.B.A.K. 97, 98 (1970). "Arrest Under the New Kansas Criminal Code," Keith G. Meyer, 20 K.L.R. 685, 693 (1972). "Reform in Kansas Domestic Violence Legislation," David J. Gottlieb and L. Eric Johnson, 31 K.L.R. 527, 538 (1983). "Criminal Procedure: Distinctions and Interactions—Fifth and Sixth Amendment Rights to Counsel [State v. Norris, 244 Kan. 326, 768 P.2d 296 (1989)]," Mary Lynch Matthews, 29 W.L.J. 106, 115 (1989). Attorney General's Opinions: Traffic offenders; arrest and incarceration. 79-232. Crime of "unlawful disclosure of a warrant" prohibits disclosure, before execution of warrant, of complaint which leads to arrest warrant issuance. 87-100. Uniform electronic transaction act does not authorize the use of unsworn electronic digitally signed complaint or supporting affidavit; court rule exception. 2008-4. Discussion of "complaint" under K.S.A. 65-515 and role of county prosecutor. 2008-20. CASE ANNOTATIONS 1. Applied; allegations of complaint sworn to provide sufficient basis for issuance of arrest warrant. State v. Woods, 214 Kan.739, 522 P.2d 967. 2. Section mentioned in general discussion of commencement of prosecutions and right to speedy trial. State v. Taylor, 3 Kan. App. 2d 316, 318, 594 P.2d 262. 3. Cited; petitioner's right to a speedy trial violated; writ of habeas corpus granted. Williams v. Darr, 4 Kan. App. 2d 178, 182, 603 P.2d 1021. 4. Document titled "Information" held sufficient to commence prosecution if functions of complaint fulfilled. Henderson v. Schenk, 6 Kan. App. 2d 562, 563, 631 P.2d 246 (1981). 5. Purpose and conduct of preliminary hearing considered. State v. Jones, 233 Kan.170, 171, 660 P.2d 965 (1983). 6. Complaining witness cannot appeal order dismissing complaint; responsibilities of those representing state outlined. State ex rel. Rome v. Fountain, 234 Kan.943, 948, 678 P.2d 146 (1984). 7. Cited in holding attorney hired under K.S.A. 19-717 not special prosecutor under K.S.A. 22-2202(17); cannot appeal dismissal of complaint. State v. Berg, 236 Kan.562, 565, 694 P.2d 427 (1985). 8. Felony murder conviction; when right to counsel attaches discussed. State v. Waugh, 238 Kan.537, 545, 712 P.2d 1243 (1986). 9. Cited; failure to advise about expungement rights (K.S.A. 21-4619) and appeal rights (K.S.A. 38-1681) when defendant no longer "juvenile offender" (K.S.A. 38-1602(b)(3)) examined. Reubke v. State, 11 Kan. App. 2d 353, 354, 720 P.2d 1141 (1986). 10. DUI conviction cannot be enhanced where record of prior diversion agreement is silent on defendant's representation or waiver of counsel. State v. Priest, 239 Kan.681, 684, 685, 722 P.2d 576 (1986). 11. Cited; prosecution for DUI (K.S.A. 8-1567) commenced only by filing complaint or information examined. State v. Fraker, 12 Kan. App. 2d 259, 260, 739 P.2d 940 (1987). 12. Cited; requirement of verified complaint to commence prosecution for DUI (K.S.A. 8-1567) and certain other violations examined. State v. Fraker, 242 Kan.466, 467, 748 P.2d 868 (1988). 13. Complaint sworn to before notary public as valid determined. State v. Lieurance, 14 Kan. App. 2d 87, 88, 782 P.2d 1246 (1989). 14. When the prosecution of a traffic citation commences examined. State v. Donlay, 253 Kan.132, 137, 853 P.2d 680 (1993). 15. Cited; section applies in situation in which judge orders the prosecutor to institute criminal proceedings against defendant. State v. Oliver, 39 Kan. 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