concurring and dissenting: I concur in all the findings of the majority, except I respectfully dissent from its determination that the State did not file its notice of intent to seek the hard 40 sentence with the judge as required by K.S.A. 1993 Supp. 21-4627(1) and under K.S.A. 60-205(e).
K.S.A. 1993 Supp. 21-4627(1) requires that the prosecution shall file with the court notice of its intent to seek a hard 40 sentence and serve notice on the defendant or the defendant’s attorney at *366the time of the arraignment. K.S.A. 60-205(e) provides that a judge may permit pleadings and other papers to be filed with him or her, “in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.” If the notice is not filed and served as required by the hard 40 statute, the State may not request that the defendant be sentenced under the statute.
There is no doubt that at the arraignment, the assistant district attorney informed the judge the State intended to serve notice of its intent to request a mandatory 40-year imprisonment should the defendant be convicted of premeditated murder. The court acknowledged that the defendant had been provided with a copy of the information and had been served with notice of the State’s intent to request the mandatory 40-year imprisonment.
The original of the notice of intent to request the mandatory 40-year imprisonment was filed — i.e. clocked in — with the clerk of the district court’s office the day following Collier’s arraignment. Subsequently, a factual statement of what had occurred with the notice was filed. The factual statement recited that the State had presented the original copy of its notice of intent to seek the hard 40 to the judge at the arraignment with the intent to file it with the judge and that the notice was received as filed by the judge. The judge acknowledged he received and accepted the document as being filed. The judge then took the document to the assistant clerk of the district court for filing with the clerk’s office. The document was filed with the clerk’s office before business began the next day.
The majority concludes that the State failed to comply with the notice and filing requirements of K.S.A. 1993 Supp. 21-4624. The majority concludes this case is controlled by State v. Peckham, 255 Kan. 310, 875 P.2d 257 (1994). In Peckham, the defendant and his counsel were served with notice of intent to seek a hard 40 sentence. However, a copy of the notice was not filed stamped as being received by the clerk of the court until the following day. Like Collier, Peckham maintained that the delay in filing of the notice precluded the imposition of the har'd 40 term of imprisonment. The State argued that it did timely comply with the filing requirements by filing the notice with die district judge at the time of Peckham’s arraignment.
*367In Peckham, the district judge denied Peckham’s motion to preclude the hard 40 sentence. On appeal, the Peckham court observed that during the arraignment, the State had served the defendant with written notice in open court and then placed a copy of the notice on the judge’s bench. It pointed out that the district judge did not state or remember that he had accepted the notice as being filed with the court at the time. The Peckham court noted that K.S.A. 60-205(e) provides that a judge may permit pleadings and other papers to be filed with him or her, “in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.” Quoting Tobin Constr. Co. v. Kemp, 239 Kan 430, Syl. ¶ 1, 721 P.2d 278 (1986), the Peckham court stated if the papers are filed with the judge, “filing is complete when the judge personally accepts custody of the papers.” 255 Kan. at 316. The Peckham court found that the judge had not accepted the papers as being filed with the court. 255 Kan. at 318.
There is no doubt that the papers in this case were given to the judge and that the judge accepted the notice as being filed with him. The judge later transmitted the papers to the clerk for filing. Our question is whether, after receiving the papers as filed with the court, the judge was required to note the time and date and sign the papers before transmitting them to the clerk of the court.
In State v. Spaulding, 239 Kan. 439, 720 P.2d 1047 (1986), the court was faced with a similar question. Spaulding dealt with the issuance of a search warrant under K.S.A. 22-2502. That statute, after providing for written application or for the recording of an oral application, provides that if the magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, the magistrate may issue a search warrant for the seizure of property. In Spaulding, the judge issued the warrant without his signature. Spaulding asserted that the failure of the judge to sign the warrant was not a mere technical irregularity because the judge’s signature was necessary for a permanent manifestation of the judge’s intent to show a finding of probable cause and an intent to issue the warrant. The defendant concluded that without the judge’s signature, the warrant was a nullity. The Spaulding court observed that K.S.A. 22-2502 did not specifically *368provide that the judge must sign the warrant. Thus, a search warrant was not to be quashed because of technical irregularities, such as the absence of the judge’s signature on the warrant, not affecting the substantial rights of the accused. 239 Kan. at 441-42; see K.S.A. 22-2511.
Did the judge’s failure to sign and date the notice before filing it with the clerk of the court affect Collier’s substantial rights?
K.S.A. 60-205(e) states that the filing of pleadings and other papers with the court shall be made by filing them with the clerk of the court; however, the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Service under this statute was discussed in Tobin Constr. Co. v. Kemp, 239 Kan. 430. Tobin, dissatisfied with an award entered by the court, attempted to serve on all parties a motion to alter or amend the judgment on the last day for filing the motion. The motion was not filed with the clerk of the district court during the hours that the courthouse was open; instead, that evening after the courthouse had closed a courier employed by Tobin attempted to file the motion at the judge’s residence. The courier was informed by the judge’s wife that the judge was not at home. The judge did not receive the papers until several days later, and after reviewing the motion and without noting the filing date on the motion, the judge sent the motion to the clerk’s office for filing. The Tobin court reviewed the rules of statutory construction in prior decisions interpreting similar statutes. The Tobin court noted that the statute was clear in that the judge must accept the filing of the papers with him and note the time and date of his acceptance and then forthwith take the papers to the clerk. It noted that the plain language of the statute cannot be interpreted to include leaving the papers with the judge’s wife, secretary, or bailiff, or leaving the papers in the judge’s car, home; or office. The Tobin court concluded that K.S.A. 60-205(e) provides that a judge may accept the pleadings or other papers to be filed prior to their transmission to the clerk’s office for entry on the docket sheet. It found that under the statute filing is complete when the judge personally accepts custody of the *369papers, though under the facts filing with the judge was not complete because he had not personally accepted custody of the papers.
I conclude that the K.S.A. 60-205(e) requirement that the judge sign and date the papers is directory, not mandatory. In determining whether provisions of a statute are mandatory or directory, it is a general rule that the provision is mandatory where strict compliance with a provision is essential to the preservation of the rights of the parties affected and to the validity of the proceeding, but the provision is directory where it fixes a mode of proceeding and the time within which an official act is to be done and is intended to secure order, system, and dispatch of the public business. Sunflower Racing, Inc. v. Board of Wyandotte County Comm’rs, 256 Kan. 426, Syl. ¶ 5, 885 P.2d 1233 (1994). Both Tobin and Peckham determined that filing with the court is complete under when the judge personally accepts custody of the papers. Therefore, the statute’s requirement that the judge sign and date the papers is directory, and a judge’s failure to sign is a mere technical irregularity.
If the failure of the judge to sign and dated the notice is a technical irregularity, the final question is whether, under the facts, the judge’s failure to sign and date the notice before fifing it with the clerk of the court affected Collier’s substantial right to notice at the time of the arraignment. The answer is no. Collier’s substantial rights were protected when a copy of the notice was served on him and the original was accepted by the judge as filed during the arraignment. The judge’s failure to sign and date the notice is no different than the district court clerk’s failure to time and date stamp the notice before placing the notice in the case file.
I would affirm the imposition of the hard 40 sentence because the notice was timely filed with the court and served on the defendant.
McFarland, C.J., joins the foregoing concurring and dissenting opinion.