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21-4721.

History: L. 1992, ch. 239, § 21; L. 1995, ch. 251, § 17; Repealed, L. 2010, ch. 136, § 307; July 1, 2011.

Law Review and Bar Journal References:

Survey of Recent Cases, 43 K.L.R. 1000 (1995).

"Delacruz: Following the Nichols Court Through the Looking Glass," Eric Lawrence, 44 K.L.R. 1045 (1996).

Survey of Recent Cases, 45 K.L.R. 1393 (1997).

"Solidifying the Use of Juvenile Proceedings as Sentence Enhancement and Clarifying Second-Degree Murder," Kay Redeker, 37 W.L.J. 483 (1998).

Survey of Recent Cases, 46 K.L.R. 915, 921, 930 (1998).

"The Kansas Sentencing Guidelines Act," Robert J. Lewis, Jr., 38 W.L.J. 327 (1999).

"Are We Not Treating the Judiciary as the 'Ugly Duckling' of Government?" Ed Collister, 9 Kan. J.L. & Pub. Pol'y, No. 2, 302 (1999).

"Writing to the Kansas appellate courts: a lesson in appellate jurisdiction," Autumn Fox, 69 J.K.B.A. No. 4, 32 (2000).

"Criminal Procedure Survey of Cases," 48 K.L.R. 895 (2000).

"Criminal Procedure Survey of Recent Cases," 50 K.L.R. 901 (2002).

"Criminal Procedure Survey of Recent Cases, Kansas Issue," 52 K.L.R. 771 (2004).

CASE ANNOTATIONS

1. Standard of review for subsection (e)(1) challenge to plea bargained sentence within presumptive range examined. State v. Starks, 20 Kan. App. 2d 179, 181, 885 P.2d 387 (1994).

2. Whether court erred by issuing defendant an upward departure based on previous prior convictions examined. State v. Gideon, 257 Kan. 591, 622, 894 P.2d 850 (1995).

3. Whether appellate court has jurisdiction to review denial of defendant's motion requesting departure examined. State v. Myers, 20 Kan. App. 2d 401, 402, 888 P.2d 866 (1995).

4. Whether judge erred by failing to set forth substantial and compelling reasons for dispositional departure examined. State v. Rhoads, 20 Kan. App. 2d 790, 800, 892 P.2d 918 (1995).

5. Whether sentencing judge has discretion to impose concurrent or consecutive sentences in multiple conviction cases examined. State v. Peal, 20 Kan. App. 2d 816, 820, 893 P.2d 258 (1995).

6. Whether substantial and compelling reasons existed for departure from presumptive sentence examined. State v. Richardson, 20 Kan. App. 2d 932, 933, 939, 901 P.2d 1 (1995).

7. Trial court's factual findings neither supported by evidence in record nor established by compelling reasons for upward sentence departure. State v. Cox, 258 Kan. 557, 574, 908 P.2d 603 (1995).

8. Conversion of defendant's sentence to prison from nonimprisonment for offense committed on parole supported by substantial and compelling reasons. State v. Trimble, 21 Kan. App. 2d 32, 38, 894 P.2d 920 (1995).

9. Appeals challenging a sentence imposed pursuant to KSGA (K.S.A. 21-4701 et seq.) are limited to subsections (a) and (e) and illegal sentences. State v. McCallum, 21 Kan. App. 2d 40, 895 P.2d 1258 (1995).

10. Downward departure upheld in involuntary manslaughter sentencing where defendant involved in auto accident fatality. State v. Heath, 21 Kan. App. 2d 410, 412, 901 P.2d 29 (1995).

11. Imposition of incarceration or probation in border box case is presumptive sentence for appeal purposes. State v. Bost, 21 Kan. App. 2d 560, 567, 903 P.2d 160 (1995).

12. Evidence in record constitutes substantial and compelling reasons justifying downward durational departure. State v. Favela, 259 Kan. 215, 228, 232, 239, 911 P.2d 792 (1996).

13. Conditional release includes any situation where a defendant is released by a court under restrictive conditions. State v. Arculeo, 22 Kan. App. 2d 91, 95, 911 P.2d 818 (1996).

14. Excessive brutality of defendant provided separate and independent reason for durational departure. State v. Hunter, 22 Kan. App. 2d 103, 105, 911 P.2d 1121 (1996).

15. Aggravating factor of excessive brutality constituted a substantial and compelling reason for upward departure. State v. Valentine, 260 Kan. 431, 441, 444, 921 P.2d 770 (1996).

16. Trial court did not err by relying on randomness of crime as aggravating factor justifying upward departure. State v. Alderson, 260 Kan. 445, 467, 922 P.2d 435 (1996).

17. Sentencing court's jurisdiction to modify or depart from sentence after imposition of lawful KSGA (K.S.A. 21-4701 et seq.) discussed. State v. Miller, 260 Kan. 892, 899, 926 P.2d 652 (1996).

18. District court procedure when defendant challenges criminal history score discussed. State v. Lakey, 22 Kan. App. 2d 585, 587, 920 P.2d 470 (1996).

19. Prosecutor has authority to recommend upward departure sentence to facilitate plea agreement. Soto v. State, 23 Kan. App. 2d 85, 88, 927 P.2d 954 (1996).

20. Fair sentencing hearing denied because of court's ex parte meeting with victim's family and ex parte consideration of petition requesting harsh punishment. State v. Scales, 261 Kan. 734, 737, 933 P.2d 737 (1997).

21. Imposition of imprisonment sentence where defendant's offense within nonprison grid but committed while defendant incarcerated not appealable. State v. Burrows, 23 Kan. App. 2d 342, 343, 345, 929 P.2d 1391 (1997).

22. Court not required to state reasons for refusing to depart from imposing a presumptive sentence. State v. Windom, 23 Kan. App. 2d 429, 430, 431, 932 P.2d 1019 (1997).

23. Standard of review for sentencing appeals; burden of proof. State v. Rodriguez, 23 Kan. App. 2d 559, 561, 562, 933 P.2d 164 (1997).

24. Firing gun during aggravated assault not per se excessive brutality; sentencing departure not supported by substantial and compelling reason. State v. Eisele, 262 Kan. 80, 83, 84, 936 P.2d 742 (1997).

25. Excessive brutality constituted substantial and compelling reason for upward durational departure. State v. Jackson, 262 Kan. 119, 137, 936 P.2d 761 (1997).

26. Appeal dismissed for lack of jurisdiction; imposition of consecutive sentences not inconsistent with presumptive sentences and does not constitute departure sentence. State v. Ware, 262 Kan. 180, 938 P.2d 197 (1997).

27. Upward departure improper since aggravating factors relied on not substantial or compelling reasons or supported by record. State v. Salcido-Corral, 262 Kan. 392, 411, 940 P.2d 11 (1997).

28. Departure sentence justified where defendant committed crimes while on supervised parole and lied on court affidavits. State v. Mitchell, 262 Kan. 434, 445, 939 P.2d 879 (1997).

29. Parties had not agreed to sentence in plea agreement under (c)(2); sentence vacated and remanded. State v. Christensen, 23 Kan. App. 2d 910, 915, 937 P.2d 1239 (1997).

30. Aggravating factors specified in K.S.A. 21-4717(a) substantial and compelling as matter of law; substantial competent evidence supported each. State v. Hernandez, 24 Kan. App. 2d 285, 289, 944 P.2d 188 (1997).

31. Trial court departure sentence vacated where insufficient evidence of substantial and compelling reasons for departure. State v. Bailey, 263 Kan. 685, 698, 952 P.2d 1289 (1998).

32. Trial court is not required to issue reasons for denial of departure to a defendant under subsection (a)(2). State v. Koehn, 266 Kan. 10, 13, 966 P.2d 63 (1998).

33. Defendant's federal convictions properly considered as prior convictions for determining criminal history. State v. Heath, 25 Kan. App. 2d 587, 588, 967 P.2d 775 (1998).

34. Placement at conservation camp must be considered when sentencing defendant falling within nondrug border box to imprisonment sentence. State v. Schick, 25 Kan. App. 2d 702, 703, 971 P.2d 346 (1998).

35. Appellate court may not review any sentence that is within the presumptive range of sentence for the crime. State v. Stephens, 266 Kan. 886, 894, 975 P.2d 801 (1999).

36. Court's upward durational departure of aggravated robbery conviction supported by findings of fact. State v. Yardley, 267 Kan. 37, 43, 978 P.2d 886 (1999).

37. Upward departure based on defendant's perjury remanded for finding that all elements of perjury satisfied. State v. Smart, 26 Kan. App. 2d 808, 813, 995 P.2d 407 (1999).

38. Dispositional downward departure for aggravated indecent liberties with a child conviction not supported by evidence. State v. Chrisco, 26 Kan. App. 2d 816, 817, 995 P.2d 401 (1999).

39. Trial court did not abuse discretion in imposing downward departure in aggravated criminal sodomy case. State v. Minor, 268 Kan. 292, 298, 997 P.2d 648 (2000).

40. Consecutive sentence imposed by trial court is not a departure sentence; no jurisdictional basis for appellate court to review sentence subsequent to 1995 amendment of section. State v. Flores, 268 Kan. 657, 999 P.2d 919 (2000).

41. Appellate court may not review sentence within presumptive sentence for crime; legislative branch has power to limit jurisdiction of all inferior courts. State v. Lewis, 27 Kan. App. 2d 134, 998 P.2d 1141 (2000).

42. Under facts of this case, no basis for dispositional departure sentence when defendant absconded from custody. State v. McKay, 271 Kan. 725, 26 P.3d 58 (2001).

43. Defendant may not appeal a sentence that falls within presumptive range. State v. Dugan, 29 Kan. App. 2d 71, 25 P.3d 145 (2002).

44. No violation of Apprendi when sentence imposed was based in part upon defendant's criminal history score; i.e. sentence was within presumptive range. State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).

45. Imposition of consecutive sentences, each within presumptive range, does not violate defendant's constitutional rights under Apprendi. State v. Bramlett, 273 Kan. 67, 41 P.3d 796 (2002).

46. Being leader of criminal activity is not an aggravating factor justifying upward departure sentence. State v. Martin, 279 Kan. 623, 112 P.3d 192 (2005).

47. Jurisdiction to review claim under subsection (e)(3) regarding ranking of crime severity level. State v. Fanning, 281 Kan. 1176, 1178, 135 P.3d 1067 (2006).

48. Appellate court may review defendant's claim prior conviction should not have been considered in criminal history for sentencing. State v. Siesener, 35 Kan. App. 2d 649, 650, 137 P.3d 498 (2006).

49. No jurisdiction to consider appeal where defendant's sentence within presumptive sentence for crimes committed. State v. Thorpe, 36 Kan. App. 2d 475, 478, 141 P.3d 521 (2006).

50. Appellate court lacks jurisdiction to review a sentence that is within the presumptive sentence range for the crime. State v. Whitlock, 36 Kan. App. 2d 556, 559, 142 P.3d 334 (2006).

51. Increased sentence at retrial not illegal, prior sentence was calculated incorrectly based on off-grid crime. State v. Walker, 283 Kan. 587, 615, 153 P.3d 1257 (2007).

52. Appellate court has jurisdiction to hear a McAdam (277 Kan. 136) - type appeal. State v. Thomas, 283 Kan. 796, 806, 156 P.3d 1261 (2007).

53. Appeal dismissed where defendant received presumptive sentence and court followed state's plea bargain recommendation. State v. Williams, 37 Kan. App. 2d 404, 408, 153 P.3d 566 (2007).

54. Inmate entitled to file direct appeal out of time; ineffectiveness of counsel highly prejudicial in foreclosing direct appeal. King v. State, 37 Kan. App. 2d 449, 454, 154 P.3d 545 (2007).

55. Appellate court has jurisdiction to review whether court erred in ranking crime severity level. State v. Malm, 37 Kan. App. 2d 532, 553, 154 P.3d 1154 (2007).

56. Appellate court has no jurisdiction to review a presumptive sentence imposed under sentencing guidelines. State v. Lewis, 38 Kan. App. 2d 91, 100, 161 P.3d 807 (2007).

57. Mentioned in case involving an alleged illegal sentence; applies to appeals but not collateral attack of a sentence. State v. McCarley, 38 Kan. App. 2d 165, 169, 170, 174, 176, 166 P.3d 418 (2007).

58. Departure sentence could be appealed under K.S.A. 21-4721 in lieu of question reserved under K.S.A. 22-3602. State v. Moffit, 38 Kan. App. 2d 414, 166 P.3d 435 (2007).

59. Mentioned in opinion involving downward departure from sentencing guidelines in second-degree murder conviction. State v. Blackmon, 285 Kan. 719, 724, 732, 176 P.3d 160 (2008).

60. Mentioned in case involving upward departure sentence from presumptive probation sentence; reasons found "substantial and compelling." State v. Martin, 285 Kan. 735, 739, 175 P.3d 832 (2008).

61. Cited; court upholds consecutive sentences for longest prison term in sentencing presumptive grid block; sentence cannot be appealed. State v. Johnson, 286 Kan. 824, 825, 841, 850, 851, 190 P.3d 207 (2008).

62. Cited; mandatory imprisonment for sex crime, mitigating circumstances insufficient for downward departure sentence. State v. Ortega-Cadelan, 287 Kan. 157, 163, 194 P.3d 1195 (2008).

63. Cited; trial court had jurisdiction to correct illegal sentence that favored defendant. State v. McCarley, 287 Kan. 167, 171, 195 P.3d 230 (2008).

64. Cited; appeal right is statutory; timely filing of notice of appeal is jurisdictional. Barr v. State, 287 Kan. 190, 195, 199, 196 P.3d 357 (2008).

65. Cited; denial of downward dispositional departure not among appealable sentences. State v. Patton, 287 Kan. 200, 204, 195 P.3d 753 (2008).

66. Cited; appellate court can review a claim that district court erred in including or excluding a prior conviction. State v. Schow, 287 Kan. 529, 539, 197 P.3d 825 (2008).

67. Mentioned; defendant has a right to appeal any judgment from a district magistrate judge. State v. Gillen, 39 Kan. App. 2d 461, 467, 181 P.3d 564 (2008).

68. Cited; court discusses and applies the identical offense doctrine to K.S.A. 65-4152 and 65-4159. State v. Moore, 39 Kan. App. 2d 568, 589, 181 P.3d 1258 (2008).

69. Mentioned in discussion on appellate review of upward durational departures in sentencing. State v. Rutherford, 39 Kan. App. 2d 767, 778, 184 P.3d 959 (2008).

70. Cited; condition of probation that authorizes nonconsensual, suspicionless searches held unconstitutional. State v. Bennett, 39 Kan. App. 2d 890, 891, 185 P.3d 320 (2008).

71. Cited; court on appeal is forbidden from reviewing presumptive sentences; K.S.A. 60-1507 motions may raise constitutional claims. State v. Hawkins, 40 Kan. App. 2d 10, 20, 188 P.3d 965 (2008).

72. Cited; fiduciary relationship abuse generally not grounds for upward departure sentence for security fraud conviction. State v. Bryant, 40 Kan. App. 2d 308, 314, 191 P.3d 350 (2008).

73. Cited; nonamenability to probation may constitute reason for an upward durational departure or a dispositional departure. State v. Snow, 40 Kan. App. 2d 747, 756, 195 P.3d 282 (2008).

74. Cited; court not required to impose nonprison sentence even when such sentence is presumed, when. State v. Andelt, 40 Kan. App. 2d 796, 799, 195 P.3d 1220 (2008).

75. Cited; aggravated indecent liberties with child, downward departure sentence not justified under facts. State v. Thomas, 40 Kan. App. 2d 1082, 1086, 198 P.3d 203 (2009).

76. Conviction under K.S.A. 21-3504; mitigating circumstances permit downward departure from mandatory minimum imprisonment term set out in K.S.A. 21-4643. State v. Gracey, 288 Kan. 252, 200 P.3d 1275 (2009).

77. Term of imprisonment drawn from erroneously classified grid box not deemed a "presumptive sentence"; appellate review allowed. State v. Fischer, 288 Kan. 470, 203 P.3d 1269 (2009).

78. State argued appellate court without jurisdiction to consider appeal of denial of departure sentence. State v. Easterling, 289 Kan. 470, 213 P.3d 418 (2009).

79. Sentences that fall within the sentencing grid are "presumptive" sentences and not subject to appeal. State v. Andelt, 289 Kan. 763, 217 P.3d 976 (2009).

80. Jurisdiction accepted on question reserved by state; after sentencing district court cannot modify, exceptions. State v. Trostle, 41 Kan. App. 2d 98, 201 P.3d 724 (2009).

81. Sentencing defendant to upper number in sentencing guidelines grid box without jury involvement held no constitutional violation. State v. Krider, 41 Kan. App. 2d 368, 202 P.3d 722 (2009).

82. Appellate court is without jurisdiction to consider a challenge to a presumptive sentence. State v. Schad, 41 Kan. App. 2d 805, 206 P.3d 22 (2009).

83. Appellate court lacks jurisdiction of sentence that falls within the applicable grid box as presumptive sentence. State v. Deal, 41 Kan. App. 2d 866, 206 P.3d 529 (2009).

84. Appellate court is without jurisdiction to consider challenge to a presumptive sentence. State v. Preston, 41 Kan. App. 2d 981, 207 P.3d 1081 (2009).

85. Where the imposed sentence is within the presumptive guidelines sentence range, appellate court lacks appellate jurisdiction. State v. Miller, 42 Kan. App. 2d 12, 208 P.3d 774 (2009).

86. Appellate court may review a claim that sentencing court erred in ranking the severity level of the crime. State v. Quinones, 42 Kan. App. 2d 48, 208 P.3d 335 (2009).

87. Appellate court lacks jurisdiction over a sentence for felony conviction within the presumptive sentence for the crime. State v. Hardesty, 42 Kan. App. 2d 431, 213 P.3d 745 (2009).

88. K.S.A. 21-4721(c) is not a bar to defendant's appeal under facts of case. State v. Cisneros, 42 Kan. App. 2d 376, 212 P.3d 246 (2009).

89. Kansas law requires that a sentence for a later conviction be served consecutively to the sentence imposed or reinstated after probation, parole, or conditional release has been revoked. McCormick v. Kline, 572 F.3d 841 (10 th Cir. 2009).

90. Upward durational departure sentence held illegal; sentence vacated and case remanded for resentencing. State v. Duncan, 291 Kan. 467, 243 P.3d 338 (2010).

91. No appellate jurisdiction for a sentence within the presumptive grid block. State v. McCaslin, 291 Kan. 697, 245 P.3d 1030 (2011).

92. Defendant's constitutional challenge to a presumptive sentence does not make the sentence amenable to direct appeal. State v. Huerta, 291 Kan. 831, 247 P.3d 1043 (2011).

93. Appellate court lacks jurisdiction to consider a challenge to presumptive grid box sentence. State v. Mitchell, 45 Kan. App. 2d 592, 252 P.3d 586 (2011).

94. Defendant's allegation of some constitutional error does not confer jurisdiction on an appellate court. State v. Dillon, 45 Kan. App. 2d 1075, 253 P.3d 383 (2011).

95. A 120-month prison sentence is deemed illegal; the sentence vacated and the case remanded for resentencing. State v. Jones, 293 Kan. 757, 268 P.3d 491 (2012).

96. The appellate court may consider limited question of whether a district court properly interpreted sentencing statute where district court misinterpreted statutory sentencing authority and explicitly refused to consider matters before it within its authority to review. State v. Warren, 47 Kan. App. 2d 57, 270 P.3d 13 (2012).

97. Defendant may challenge a sentence for an on-grid crime that is ordered to run consecutive to a life sentence for an off-grid crime. State v. Baker, 297 Kan. 482, 301 P.3d 706 (2013).

98. While Kansas appellate courts do not have jurisdiction to hear the appeal of a presumptive criminal sentence, appellate courts may consider the limited question of whether the district court correctly interpreted the sentencing statute. State v. Warren, 297 Kan. 881, 304 P.3d 1288 (2013).

99. Statute makes no distinction between a favorable or unfavorable departure from a presumptive sentence. State v. Looney, 299 Kan. 903, 908, 327 P.3d 425 (2014).

100. Section precludes appellate review of presumptive sentences but not review of a district court's interpretation of its sentencing authority. State v. Morningstar, 299 Kan. 1236, 1240, 329 P.3d 1093 (2014).

101. When a defendant is sentenced to any term within the presumptive grid block for such defendant's convictions, the appellate court lacks jurisdiction to review that sentence. Harms v. Cline, 27 F. Supp. 3d 1173, 1182 (2014).


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