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21-6820. Departure sentence or ruling on motion for correction of sentence subject to appeal; confinement or release of defendant pending review; scope of review; action by court; written opinion, when; summary disposition; correction of illegal sentence or clerical error. (a) A departure sentence or a ruling on a motion filed pursuant to K.S.A. 22-3504, and amendments thereto, is subject to appeal by the defendant or the state. The appeal shall be to the appellate courts in accordance with rules adopted by the supreme court.

(b) Pending review of the sentence, the sentencing court or the appellate court may order the defendant confined or placed on conditional release, including bond.

(c) On appeal from a judgment of conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review:

(1) Any sentence that is within the presumptive sentence for the crime; or

(2) any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.

(d) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for a crime, sentence review shall be limited to whether the sentencing court's findings of fact and reasons justifying a departure:

(1) Are supported by the evidence in the record; and

(2) constitute substantial and compelling reasons for departure.

(e) In any appeal from a judgment of conviction, the appellate court may review a claim that:

(1) A sentence that departs from the presumptive sentence resulted from partiality, prejudice, oppression or corrupt motive;

(2) the sentencing court erred in either including or excluding recognition of a prior conviction or juvenile adjudication for criminal history scoring purposes; or

(3) the sentencing court erred in ranking the crime severity level of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.

(f) The appellate court may reverse or affirm the sentence. If the appellate court concludes that the trial court's factual findings are not supported by evidence in the record or do not establish substantial and compelling reasons for a departure, it shall remand the case to the trial court for resentencing.

(g) The appellate court shall issue a written opinion whenever the judgment of the sentencing court is reversed. The court may issue a written opinion in any other case when it is believed that a written opinion will provide guidance to sentencing judges and others in implementing the sentencing guidelines adopted by the Kansas sentencing commission. The appellate courts may provide by rule for summary disposition of cases arising under this section when no substantial question is presented by the appeal.

(h) A review under summary disposition shall be made solely upon the record that was before the sentencing court. Written briefs shall not be required unless ordered by the appellate court and the review and decision shall be made in an expedited manner according to rules adopted by the supreme court.

(i) The sentencing court shall retain authority irrespective of any appeal to correct an illegal sentence or clerical error pursuant to K.S.A. 22-3504, and amendments thereto. Notwithstanding the provisions of K.S.A. 22-3504, and amendments thereto, if a motion to correct an illegal sentence is filed while a direct appeal is pending, any change in the law that occurs during the pending direct appeal shall apply.

(j) The amendments made to this section by section 14 of chapter 59 of the 2019 Session Laws of Kansas are procedural in nature and shall be construed and applied retroactively.

History: L. 2010, ch. 136, § 301; L. 2019, ch. 59, § 14; L. 2022, ch. 73, § 5; July 1.

Source or Prior Law:

21-4721.

CASE ANNOTATIONS

1. An appellate court does not have jurisdiction to review the district court's denial of a motion to depart from a presumptive sentence under the revised Kansas sentencing guidelines act. State v. Rizo, 304 Kan. 974, 984, 377 P.3d 419 (2016).

2. Probation and drug treatment required by the statute and ordered by the Kansas court is not a punishment by imprisonment for longer than a year as required for a conviction for possession of a firearm after a felony conviction under federal law. U.S. v. Hisey, 12 F.4 th 1231, 1236 (10 th Cir. 2021).


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