dissenting: I respectfully dissent. I disagree with the majority opinion because I believe it to be logically unsound, completely impractical, and constitutionally offensive.
With apologies to Aristotle, I begin with a loose syllogism. K.S.A. 12-4104 provides: “The municipal court of each city shall have jurisdiction to hear and determine cases involving violations of the ordinances of the city.” Wichita is a Kansas municipality that has an ordinance (designated Wichita City Ordinance 5.42.010 [2005], petit theft) which prohibits the theft of property valued at under $1,000. Therefore, the municipal court in Wichita has jurisdiction to hear and determine cases involving the theft of property valued at under $1,000.
A straightforward application of the jurisdictional statute would suggest that a municipal complaint drawn in the language of the ordinance, without more, would confer subject matter jurisdiction upon the municipal court to hear and determine the case. Cf. State v. Minor, 197 Kan. 296, 299, 416 P.2d 724 (1966) (In district court, the charging document “is the jurisdictional instrument upon which the accused stands trial.”). Just because another prosecutor, i.e., a district or county attorney, may subsequently develop additional facts which could have supported the filing of a felony complaint in district court for a violation of a state statute does not mean that the municipal court retroactively lost subject matter jurisdiction over its own ordinance when that jurisdiction was properly implicated by the facts actually alleged in the city complaint.
No one has challenged the validity of the jurisdictional statute, K.S.A. 12-4104. For that matter, no one raised or briefed any issue as to the validity of the Wichita theft ordinance 5.42.010. Yet, the *444majority relies upon its analysis of the unraised issue of the ordinance’s validity for its holding that the ordinance improperly conflicts with K.S.A. 21-3701(b)(6) and, therefore, “cannot serve as a basis for the Wichita municipal court’s exercise of jurisdiction.” Jenkins, slip op. at 14. Simply put, this is not ordinarily how this court does business. See, e.g., State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (issue not briefed is deemed waived and abandoned).
Moving nevertheless to the merits of the majority’s holding, the opinion relies on the principle that a municipal court lacks jurisdiction to hear and determine a felony. I wholeheartedly agree. But here, Jenkins was not prosecuted for a felony in municipal court. The ordinance did not purport to be applicable to a felony; the municipal court complaint did not allege that Jenkins committed a felony or allege facts which could have enhanced the charge to a felony; the municipal judge did not find Jenkins guilty of committing a felony; and Jenkins was given a misdemeanor sentence, i.e., jail time rather than prison.
Considering the specifics, the ordinance simply cannot be construed as purporting to apply to a felony. To the contrary, the title of the ordinance labels the crime as “petit theft,” another way of saying “petty theft,” which is defined as “[a] theft of a small quantity of cash or of low-value goods or services . . . [usually] a misdemeanor.” Black’s Law Dictionary 1615 (9th ed. 2009). Moreover, the ordinance does not state that it applies to a third theft conviction, i.e., the ordinance does not pretend to apply to a factual scenario that would usurp or intrude upon the State’s jurisdiction to prosecute felonies. Instead, the ordinance defines petit theft in the City of Wichita by using nearly identical language as that employed by the state legislature to define misdemeanor theft in K.S.A. 21-3701(a)(1) and (5). In other words, the ordinance itself is facially consistent with the state statute. It certainly contains no language that would indicate any attempt by the Wichita governing body to “degrade[] the felony designation established by state law,” as the majority asserts. See Jenkins, slip op. at 8; K.S.A. 21-3701(b)(6).
Next, the municipal charging document, i.e., the jurisdictional instrument, did not charge Jenkins with being a third-time of*445fender. Rather, he was simply prosecuted for violating the city ordinance that made it an offense to steal property that had a value less than $1,000. In other words, he was prosecuted for having committed acts that our legislature has defined as being misdemeanor theft. Accordingly, when the municipal judge found Jenkins guilty, after his nolo contendere plea, that ruling did not encompass a factual finding that Jenkins had two prior convictions for theft.
In direct contrast, the majority’s flagship case of City of Junction City v. Cadoret, 263 Kan. 164, 165, 946 P.2d 1356 (1997), involved a defendant who “was charged and convicted in municipal court of being a third time . . . offender.” That factual distinction is critical. The most obvious and practical difference is that, with the additional facts that potentially enhanced the crime to a felony being contained in the complaint, the municipal judge in Cadoret had the information available up front to determine whether it lacked jurisdiction. Here, there was nothing that would have alerted anyone that the theft charge might be amenable to being prosecuted as a felony in state district court until after Jenkins was convicted of petit theft, fined, sentenced to 36 days in jail, and given credit for time served. Only then was his municipal conviction set aside.
Further, in Cadoret, the determination of the existence of the enhancement fact was made in municipal court, contemporaneously with and as a prerequisite to, the municipal court conviction. Here, in contrast, the enhancement fact of two prior theft convictions was, at most, a mere allegation, until the district court was required to find that the prior convictions existed, as a necessary element to convict Jenkins of felony theft. In other words, the fact that allegedly deprived the municipal court of jurisdiction in this case was not legally determined, i.e., found beyond a reasonable doubt to exist, until after the municipal court had already fully exercised its jurisdiction by convicting and sentencing Jenkins for the ordinance violation. One can only imagine the mischief that will be caused if we permit the retroactive cancellation of jurisdiction based upon postconviction factual allegations where the juris*446diction had already been exercised to arrive at a factual and legal conclusion.
Fundamental to the majority’s rationale is the premise that “under K.S.A. 21-3701(b)(6), Jenkins’ third theft conviction must be classified as a felony,” Jenkins, slip op. at 4, because the legislature has pronounced “that a third theft offense ‘is’ a felony.” (Emphasis added.) Jenkins, slip op. at 14. These declarations are fundamentally flawed. Just because an allegation of an enhancing fact could make the case fit within a statutory definition of a felony, that does not automatically demand a felony prosecution. This is particularly so when the prosecutor has not alleged or offered proof of a necessary enhancing fact. The legislature defines felonies; it does not identify felons. The facts that elevate a misdemeanor to a felony are elements of the felony offense and must be proved beyond a reasonable doubt; they are not self-actualizing. Accordingly, a court cannot predetermine that a defendant’s acts must be a particular felony based on mere allegations and a reading of the statutory definition of the crime.
To illustrate, if a defendant is being prosecuted for simple misdemeanor battery based upon hitting someone during a bar fight, the crime is not automatically elevated to felony aggravated battery just because someone might suggest that the victim’s black eye is a disfigurement within the meaning of the aggravated battery statute. The existence of such disfigurement is a jury question. See State v. Green, 280 Kan. 758, Syl. ¶ 4, 127 P.3d 241 (2006) (facts of each case are evaluated to determine whether a bar fight results in great bodily harm; that factual determination is within the province of the jury).
Cases in which we have reversed a felony conviction based on the district court’s refusal to instruct on a lesser included misdemeanor are also instructive. In our recent case, State v. Simmons, 295 Kan. 171, 283 P.3d 212 (2012), for example, the State alleged that the defendant committed a severity level 4 aggravated battery by causing great bodily harm to the victim when he hit her in the nose and forehead, causing injuries that required stitches to the head and surgery to correct complications from a broken nose. The jury convicted Simmons of the lesser included crime of severity *447level 7 aggravated battery for causing bodily harm to the victim in a manner whereby great bodily harm or disfigurement could have been inflicted. Notwithstanding the prosecutor s allegations at trial, notwithstanding the existence of facts that arguably could have supported a conviction of either severity level 4 or severity level 7 aggravated battery, and notwithstanding that the jury’s verdict must have required it to find beyond a reasonable doubt that the evidence demonstrated the existence of a felony, we reversed because the trial judge had refused to instruct on misdemeanor simple battery. In other words, we did not declare that because of allegations of great bodily harm, the crime “must be” a felony. Indeed, even the jury’s finding that the defendant’s acts fit the definition of aggravated battery was insufficient to make it so as a matter of law. Likewise, the Simmons holding would certainly refute any suggestion from the majority opinion here that the misdemeanor battery statute runs directly counter to the legislature’s statutory pronouncement that alleged great bodily harm “is” a felony.
Also, I view the majority’s determination of jurisdiction based on postconviction factual allegations to be inconsistent with our recent decisions relating to a defendant’s age in Jessica’s Law cases, pursuant to K.S.A. 21-4643. In those cases, we have held that the district court does not have jurisdiction to impose the enhanced sentence of a hard 25 life sentence if the State did not allege and prove that the defendant was age 18 years or older at the time of the offense, because “ ‘[a] judge may not impose a more severe sentence tiran the maximum sentence authorized by the facts found by the jury.’ ” See, e.g., State v. Bello, 289 Kan. 191, 199, 211 P.3d 139 (2009) (quoting State v. Gould, 271 Kan. 394, Syl. ¶ 4, 23 P.3d 801 [2001]). If we do not allow after-the-fact allegations to support an affirmance of the exercise of jurisdiction, it makes scant sense to permit retroactive withdrawal of jurisdiction on the same basis.
Granted, at first blush, one might be inclined to declare that this case is different because the sentence enhancing facts deal with prior convictions. See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (excluding prior convictions *448from the sentence enhancing facts that must be proved to a jury beyond a reasonable doubt). But I do not read the majority opinion as making or relying upon that distinction. Even if it did, the prior convictions are elements of the enhanced, felony version of theft of property valued under $1,000. Cf. State v. Kemble, 291 Kan. 109, Syl. ¶ 8, 238 P.3d 251 (2010) (“Where a crime is defined as having two different severity levels, with the higher degree of the crime being applicable if the defendant was of a certain age at the time the criminal act was committed, then the defendant’s age is an element of the higher degree of the crime.”). Here, the two prior convictions are what make the higher degree of theft applicable. See K.S.A. 21-3701(b)(6).
Further, not all prior convictions can count toward making petty theft a felony. See State v. Youngblood, 288 Kan. 659, Syl. ¶ 3, 206 P.3d 518 (2009) (uncounseled misdemeanor convictions may not be collaterally used for sentence enhancement in a subsequent criminal proceeding). So the majority’s tack of simply assuming that Jenkins’ third theft conviction “is” a felony relieves the State of its burden to prove that the prior convictions would qualify as enhancers. See Youngblood, 288 Kan. at 662 (State has burden to prove waiver of counsel, which is never presumed from a silent record). Moreover, as the above quote from Gould counsels, it is the jury that must find any fact that would increase Jenkins’ sentence beyond the maximum authorized for a misdemeanor, and here that fact is the existence of two constitutionally obtained prior theft convictions.
I am also struggling to harmonize the majority’s premise—that Jenkins’ third theft must be a felony because the legislature says it is—with its acknowledgment of our holding in State v. Sandberg, 290 Kan. 980, 986, 235 P.3d 476 (2010). There we said that there is nothing in the law that would “ ‘ “foreclose the prosecutor from deciding in a particular case that, notwithstanding the presence of one of the aggravated facts, the defendant will still be prosecuted for the lesser offense.” ’ ” 290 Kan. at 986. By way of example, we clarified that “in a battery case, the prosecutor could ignore a more serious degree of bodily injury and charge battery rather than aggravated battery.” 290 Kan. at 987.
*449Sandberg did not delve into the reasons that prosecutors are granted unfettered discretion in making charging decisions. But some insight can be gleaned from the separation of powers doctrine. The executive branch of government, as opposed to the judicial branch, is invested with the power to enforce the laws that the legislative branch makes; the executive branch carries out its enforcement responsibility through its prosecutors. That concept should apply with equal force to permit a municipal prosecutor to ignore the aggravating fact of two prior theft convictions and charge a violation of the petit theft ordinance. Certainly, after the case was refiled as a felony in district court, the state prosecutor would have had unfettered discretion to amend the charge back down to a misdemeanor, as happens quite frequently in plea agreements. The majority does not explain why, if the legislature has pronounced that a third theft offense “is” a felony, i.e., that such a third offense “must be classified as a felony,” it is nevertheless permissible for a state prosecutor, and only a state prosecutor, to defy such a legislative pronouncement.
Instead of justifying its holding in light of our stated principle of absolute prosecutorial discretion, the majority curtly dismisses the problem by summarily declaring that “a prosecutor cannot simply confer subject matter jurisdiction on a court.” Jenkins, slip op. at 8. But, of course, that is a non sequitur, or, perhaps more accurately, a fallacy of relevance. Here, subject matter jurisdiction to prosecute Jenkins for violating the Wichita city ordinance was conferred on the Wichita municipal court by the specific statutory provision set forth in K.S.A. 12-4104, not by the prosecutor, and certainly not by any consent, waiver, or estoppel. What I discern the majority to be saying is that any allegation of any potential felony preempts any and all municipal jurisdiction and forecloses the exercise of prosecutorial discretion by any city attorney. Obviously, I do not agree.
The topic of prosecutors provides a segue into my discussion of the chaos and uncertainty the majority’s holding threatens in this State’s municipal courts. For municipal prosecutors, the additional burden to eliminate the existence of any felony-defining facts will be onerous, if not impossible, to discharge. Proving a negative is *450never easy. In this case, for instance, it would not have been unusual for a prior municipal court conviction for shoplifting not to be recorded in and readily discoverable from a database. Does the prosecutor then need to check with every municipal court in every city where a shoplifter has ever lived, worked, or visited to eliminate any possibility that the current prosecution might be a third offense?
And the stakes for municipal prosecutors will be high. A municipal prosecutor can never be totally confident that the majority’s principle of retroactive jurisdiction loss will not reach back to strike down a conviction at any time. See State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010) (subject matter jurisdiction maybe raised at any time). For instance, here, if the prosecutor had never discovered that Jenkins had two prior theft convictions, Jenkins could have waited until the statute of limitations had run in order to avoid any state felony prosecution in district court and then come back to tire municipal court to set aside his void conviction. See In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997) (judgment rendered without subject matter jurisdiction is void; void judgment is nullity that may be vacated at any time).
Indeed, I would not be surprised to see our municipal courts flooded with motions to set aside convictions, some decades old, based on the majority’s paradigm for jurisdiction determination. One can envision that enterprising defendants will be confessing to all sorts of inculpatory facts in order to allege that their municipal ordinance violations are void because they were really defined felonies now beyond the reach of law enforcement and prosecution. For instance, a petty thief might well contend that the police simply did not discover all of the property he or she stole and that the total value of all stolen property exceeded $1,000, thus depriving the municipal court of jurisdiction because the crime must be a felony under K.S.A. 21-3701(b)(3). Or a person convicted of battery could argue that the victim has a disfiguring scar so that the crime must have been aggravated battery. A bad check passer might well admit to writing many more bad checks than alleged in the municipal complaint. There are infinite mischief-making possibilities for such municipal convicts seeking to clean up their crim*451inal records and perhaps recoup a fine or two. For the sake of municipal budgets everywhere, one must hope that the floodgates remain closed.
For cases that will arise after this decision, I can only imagine the problems our municipal judges will encounter in determining whether their courts have subject matter jurisdiction. Ordinarily, in a criminal case, a judge can determine jurisdiction by looking at the charging instrument. According to the majority’s holding in this case, municipal court jurisdiction will need to be determined by what is missing from die complaint. Again, municipal judges will be called upon to establish a negative: There are no facts that could conceivably make the crime fit within the definition of a felony and thereby destroy subject matter jurisdiction in municipal court.
Finally, the majority’s holding, in my view, emasculates the spirit, if not the letter, of double jeopardy. It is fairly common knowledge that a defendant acquitted of an alleged crime in a first trial is protected by double jeopardy from retrial on the same alleged acts, even if the prosecutor discovers new evidence after the first trial is completed. Many a television show has been based upon that premise. In fact, the same prohibition against a second prosecution exists if the defendant is convicted at the first trial, because “[d]ouble jeopardy protection shields an accused from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” City of Salina v. Amador, 279 Kan. 266, Syl. ¶ 3, 106 P.3d 1139 (2005).
Here, after being convicted in municipal court and serving a jail sentence for that conviction, Jenkins was tried again in district court for the same acts. He was twice put in jeopardy of losing his freedom because the prosecutor discovered evidence after the first trial. In my view, that is precisely what our founding fathers attempted to prevent through the double jeopardy prohibitions in our constitutions. I would not allow further deterioration of our constitutional rights, especially where there is no defensible reason for it.
Beier and Rosen, JJ., join in the foregoing dissenting opinion.