Source or Prior Law:

62-2227.

Law Review and Bar Journal References:

"Y2K: An active year for judicial legislation," Paul T. Davis, 69 J.K.B.A. No. 7, 12 (2000).

Attorney General's Opinions:

Procedure after arrest; diversion from prosecution. 81-198.

Release procedures; rescission of parole to detainer. 82-138.

Sentencing; probation; incarceration in county jail. 83-103.

Classification of crimes and penalties; effect of legislation providing for reduction of sentences. 84-57.

Jurisdiction of courts over persons assigned to community corrections. 86-130.

Serious traffic offenses; driving under influence of alcohol or drugs; work release for multiple offenders. 84-9.

Reporting of abuse or neglect of children; court services officers. 89-100.

Powers of counties under community corrections act; DUI offenses; work release programs. 91-57.

Sentencing; authorized dispositions; sentencing; probation; costs; home rule powers. 92-90.

Neither court services officers nor community corrections officers have unilateral authority to restrict the liberty of those under their supervision. 93-11.

Driving under the influence; place of incarceration for third or subsequent offense; penalties. 94-43.

Sexually violent predators; civil commitment; parole board is an agency with jurisdiction. 94-100.

CASE ANNOTATIONS

1. Mentioned; probation and suspension of sentence are exclusive functions of trial court and not subject to review. State v. Adams, 218 Kan. 495, 504, 545 P.2d 1134.

2. Section applied; under K.S.A. 21-4618 defendant cannot be granted probation, nor can sentence be suspended. Esters v. State, 1 Kan. App. 2d 503, 505, 571 P.2d 32.

3. Under K.S.A. 21-4618 a defendant can be granted probation or sentence can be suspended (dissenting opinion). Esters v. State, 1 Kan. App. 2d 503, 506, 507, 571 P.2d 32.

4. Section cited; definitions limited to Article 46; not applicable to K.S.A. 21-3826. State v. Roseberry, 222 Kan. 715, 717, 567 P.2d 883.

5. Probation may not be revoked unless failure to comply with the terms of probation. Swope v. Musser, 223 Kan. 133, 134, 573 P.2d 587.

6. K.S.A. 21-4618 precluded probation or suspension of sentence; conviction of aggravated robbery affirmed. State v. Stuart and Jones, 223 Kan. 600, 606, 575 P.2d 559.

7. Subsection (4) mentioned; trial court had no jurisdiction to modify minimum sentence imposed under K.S.A. 21-4618. State v. Rios, 225 Kan. 613, 614, 592 P.2d 467.

8. Jurisdiction lacking for appeal of conviction of involuntary manslaughter; sentence deferred, not suspended. State v. Lottman, 6 Kan. App. 2d 741, 742, 633 P.2d 1178 (1981).

9. Probation construed; sentencing judge has authority to grant or modify probation during pendency of appeal. State v. Dubish, 236 Kan. 848, 851, 696 P.2d 969 (1985).

10. Quoted where conviction appeal time limited to provisions of K.S.A. 22-3608 and 21-4603 where probation and revocation followed sentencing. State v. Tripp, 237 Kan. 244, 245, 699 P.2d 33 (1985).

11. Cited; no authority in felony case to commit to community corrections facility (K.S.A. 21-4603) except as condition of probation. State v. Fowler, 238 Kan. 326, 333, 710 P.2d 1268 (1985).

12. Cited in holding that new sentence under K.S.A. 22-3716(2) cannot be increased. Andrews v. State, 11 Kan. App. 2d 322, 324, 720 P.2d 227 (1986).

13. Cited; appeal times controlling (K.S.A. 22-3608) with and without imposition of sentence (K.S.A. 21-4603) determined. State v. Wagner, 242 Kan. 329, 331, 747 P.2d 114 (1987).

14. Limitations on conditions of probation and parole determined; comparison of two examined. State v. Mosburg, 13 Kan. App. 2d 257, 768 P.2d 313 (1989).

15. Release of person confined in county jail prior to expiration of term of imprisonment upon conditions is parole not probation. State v. Garrett, 14 Kan. App. 2d 8, 9, 780 P.2d 168 (1989).

16. Petition for certiorari with U.S. Supreme Court as not extending filing time for motion to modify sentence examined. State v. Miller, 246 Kan. 445, 448, 790 P.2d 419 (1990).

17. Trial court's authority to impose jail time as condition of probation (K.S.A. 21-4610) examined. State v. Walbridge, 14 Kan. App. 2d 483, 484, 794 P.2d 316 (1990); reversed 248 Kan. 65, 805 P.2d 15 (1991).

18. Effect of K.S.A. 21-4603(3)(a) on court's discretion to modify sentence, nature of state reception and diagnostic center recommendation examined. State v. Moon, 15 Kan. App. 2d 4, 9, 801 P.2d 59 (1990).

19. Probation and parole distinguished; conditional release as distinguished from probation and parole noted. Parker v. State, 247 Kan. 214, 218, 795 P.2d 68 (1990).

20. Distinction between probation and parole examined; technical flaws in sentencing process noted. State v. Urbanek, 15 Kan. App. 2d 73, 75, 803 P.2d 1030 (1991).

21. Jurisdiction to hear appeal challenging minimum sentence not involving presumptive probation following guilty or nolo contendere plea examined. State v. Bruner, 15 Kan. App. 2d 369, 372, 808 P.2d 440 (1991).

22. Time during which probation may be revoked examined; probation period held limited to maximum sentence time. State v. Grimsley, 15 Kan. App. 2d 441, 442, 808 P.2d 1387 (1991).

23. Lack of authority for boards of parole to impose sentences on defendants noted. State v. Blackmore, 15 Kan. App. 2d 539, 544, 811 P.2d 54 (1991).

24. Noted in discussion on appellate opinions on moot issues; trial court's vacation of original sentence and imposition of harsher one examined. State v. Zirkle, 15 Kan. App. 2d 674, 676, 814 P.2d 452 (1991).

25. Where defendant enters plea bargain with specific sentence recommendations and court imposes recommended sentences, defendant cannot seek application of sentencing factors in K.S.A. 21-4601 and 21-4606. State v. Crawford, 250 Kan. 174, 175, 177, 824 P.2d 951 (1992).

26. Sentencing court should consider factors when sentence exceeds minimum; failure to do so is not necessarily error. State v. Arrington, 251 Kan. 747, 753, 754, 840 P.2d 477 (1992).

27. Sentencing under specific provisions of K.S.A. 21-4608(3) compared with general provisions of K.S.A. 21-4608(8). State v. Aleman, 16 Kan. App. 2d 784, 830 P.2d 64 (1992).

28. No credit allowed toward controlling sentence (K.S.A. 21-4614a) for time spent under house arrest (K.S.A. 21-4603b); inpatient drug treatment issue remanded. State v. Williams, 18 Kan. App. 2d 424, 429, 856 P.2d 158 (1993).

29. Trial court precluded from imposing jail time as condition of probation for misdemeanor conviction. State v. Kohlman, 18 Kan. App. 2d 432, 433, 854 P.2d 318 (1993).

30. Cited; whether house arrest constitutes imprisonment under K.S.A. 21-3405b(b)(2) examined. State v. Scherzer, 254 Kan. 926, 935, 869 P.2d 729 (1994).

31. Whether granting parole to misdemeanant is a public hearing under K.S.A. 74-7335(b) requiring notice to the victim examined. State v. Holt, 255 Kan. 416, 420, 874 P.2d 1183 (1994).

32. Whether the exclusionary rule applies in probation revocation hearing where probationer subjected to unlawful search examined. State v. Turner, 19 Kan. App. 2d 535, 539, 873 P.2d 208 (1994).

33. Whether trial court has jurisdiction to hear successive motions requesting sentence modification examined. State v. Van Winkle, 256 Kan. 890, 895, 889 P.2d 749 (1995).

34. Whether imposing imprisonment for presumed nonprison felony defendant committed on probation for felony constitutes departure examined. State v. Dillard, 20 Kan. App. 2d 660, 662, 890 P.2d 1248 (1995).

35. Whether defendant is entitled to rehearing on motion to modify where state violated plea agreement examined. State v. McDaniel, 20 Kan. App. 2d 883, 885, 893 P.2d 294 (1995).

36. When adult defendant on probation for juvenile adjudication commits felony, imprisonment for nonimprisonment sentence constitutes departure. State v. Fischer, 22 Kan. App. 2d 568, 570, 919 P.2d 368 (1996).

37. Defendant held in jail not solely for crime charged was brought to trial in timely manner. State v. Noriega, 261 Kan. 440, 459, 932 P.2d 940 (1997).

38. Trial court may impose consecutive jail sentences for misdemeanor offenses. State v. Huff, 31 Kan. App. 2d 717, 71 P.3d 1185 (2003).

39. Cited; dissenting opinion would have allocation before the sentencing jury rather than to the judge. State v. Stallings, 284 Kan. 741, 752, 753, 163 P.3d 1232 (2007).

40. Cited in opinion holding that juveniles have a constitutional right to jury trials. In re L.M., 286 Kan. 460, 467, 186 P.3d 164 (2008).

41. Cited in decision holding that juvenile adjudications are excluded from cases calling for consecutive adult sentences. State v. Crawford, 39 Kan. App. 2d 897, 901, 185 P.3d 315 (2008).

42. Cited; K.S.A. 21-4602(c) authorizes court to include incarceration of 60 days in felony cases as condition of probation. State v. Luttig, 40 Kan. App. 2d 1095, 1098, 199 P.3d 793 (2009).

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