concurring: I agree with the result reached by the majority but write separately because I would reverse the decision of the district judge dismissing the case for lack of jurisdiction simply because there is no statutory right or constitutional authority upon which the decision could be based.
We held in State v. Kleen, 257 Kan. 911, Syl. ¶ 2, 896 P.2d 376 (1995), that “K.S.A. 1994 Supp. 20-302b(c) provides for a de novo appeal before a district judge from a district magistrate judge in accordance with the limitations and procedure presented by law. ’ (Emphasis added.)”
In this case such an appeal was properly taken. District Judge Sachse considered the appeal as a matter of right on the record under the provisions of K.S.A. 1994 Supp. 22-3602(c). He ruled that probable cause existed and bound Farmer over for trial. This decision of Judge Sachse is not appealable to the Court of Appeals or the Supreme Court, nor is it appealable to a different district judge in the same judicial district.
We need not write about whether the correct standard of review was an abuse of discretion standard or a de novo standard when in fact Judge Doty had no standard or right of review of Judge Sach-se’s decision at all.
The trial court should have summarily denied Farmer’s motion to dismiss and held it attempted to raise an issue which the trial court had no right to consider.
Six, J., joins in the foregoing concurring opinion.