Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

STATE v. KING

June 15, 1990.

STATE OF KANSAS, Appellee,
v.
MICHAEL D. KING, Appellant.



This is a probation revocation case in which defendant Michael King appeals an order denying credit for time he served in the custody of community corrections while on probation. After concluding K.S.A. 1989 Supp. 21-4614a applies to the sentence imposed after his probation revocation, we reverse and remand with directions to credit King's sentence with the 127 days served in the custody of community corrections during probation.

In February 1986, King pleaded guilty to three counts of conspiracy to sell marijuana. He was sentenced to one- to two-year sentences on each count, the sentences to run concurrently, and was granted five years' probation under the supervision of community corrections. The terms of his probation prohibited the

[14 Kan. App. 2d 479]

      violation of any state laws or the drinking of alcoholic beverages. King was held in community corrections for 127 days from March 20 until July 24, 1986. On March 22, 1989, King was arrested and charged with driving while under the influence of alcohol. On May 28, 1989, King was again arrested and charged with driving while under the influence of alcohol and driving with a suspended license. King's probation was revoked on October 5, 1989. The district court gave King credit for 70 days spent in custody awaiting disposition of the revocation proceeding but denied credit for the 127 days he was held in community corrections in 1986.

The issue as identified by the parties is whether the district court erred in denying credit for time spent in custody as a condition of probation. However, the controlling question is: When the legislature passes a statute protecting a defendant's right to credit for time served during probationary periods, does the statute apply to all sentences imposed in subsequent probation revocation proceedings? We answer this question in the affirmative.

  King argues the action revoking his probation and the imposition of sentence which followed occurred after 21-4614a took effect and, therefore, 21-4614a should govern computation of his sentence. The State keys its argument to the commission of the conspiracy to sell marijuana counts and King's subsequent sentencing on those counts in 1986. The State argues (1) K.S.A. 21-3102(4), which states criminal cases are controlled by the law in effect at the time of the crime, governs; and (2) 21-4614a was passed after King committed the conspiracies and was sentenced for them and, therefore, is not controlling. The district court took a different view from the parties and focused upon when the time was served for which King seeks credit. The court held that, since the time served during probation was served before 21-4614a took effect, the new law did not govern.

  At one time in Kansas, all decisions to grant persons credit for time served in jail as a condition of probation were discretionary. See, e.g., State v. Fowler, 238 Kan. 326, Syl. ¶ 5, 710 P.2d 1268 (1985) (citing K.S.A. 21-4614 and holding there is no statutory requirement that credit be given for jail time served as a condition of probation). With the passage of 21-4614a, the legislature

[14 Kan. App. 2d 480]

      changed the law and sentencing judges no longer have discretion in this area.

  To determine whether 21-4614a, which became effective May 19, 1988, applies to the sentence imposed in the present case, we first look to the wording of the statute. It is a fundamental principle of statutory construction that words in common usage are to be given their natural and ordinary meaning in arriving at the proper construction of a statute. Szoboszlay v. Glessner, 233 Kan. 475, 478, 664 P.2d 1327 (1983).

  K.S.A. 1989 Supp. 21-4614a provides:
"(a) In any criminal action in which probation, assignment to a conservation camp or assignment to community corrections is revoked and the defendant is sentenced to confinement, for the purpose of computing the defendant's sentence and parole eligibility and conditional release dates, the defendant's sentence is to be computed from a date, hereafter to be specifically designated in the sentencing order of the journal entry of judgment or the judgment form delivered with the defendant to the correctional institution. Such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent in a residential facility while on probation, assignment to a conservation camp or assignment to community correctional residential services program. The commencing date of such sentence shall be used as the date of sentence and all good time allowance as are authorized by law are to be allowed on such sentence from such date as though the defendant were actually incarcerated in a correctional institution." (Emphasis added.)
In determining the scope of this statute's applicability, we look to the statute's introductory sentence which includes the following phrase: "In any criminal action in which probation . . . is revoked and the defendant is sentenced to confinement." (Emphasis added.) "Any" is defined as "one indifferently out of more than two: one or some indiscriminately of whatever kind: . . . one, no matter what one: every." Webster's Third New International Dictionary 97 (1986). Black's Law Dictionary 86 (5th ed. 1979) states "[any] is often synonymous with `either,' `every,' or `all.'" Thus, using the common meaning of "any," it is clear the legislature intended that the statute apply to every sentencing which occurs after probation has been revoked.

  Under this reading of the statute, it becomes immaterial when the original crime occurred (the conspiracies) or when the time was served in jail as a condition of probation. If the legislature

[14 Kan. App. 2d 481]

      had intended to create the limitations asserted by the State and found by the district court, it could easily have done so. See, e.g., K.S.A. 1989 Supp. 21-4608(6) (limiting applicability of statute governing parole eligibility for those convicted of committing crimes on or after January 1, 1979). Since the legislature did not include such limitations in 21-4614a, it is not the role of this court to unilaterally read them into the statute. See Barber v. Williams, 244 Kan. 318, 324, 767 P.2d 1284 (1989).

  Here, King committed the conspiracies to sell marijuana and served the time at issue before 21-4614a was effective, but when his probation was revoked and his sentence imposed the statute was effective. The statute makes credit for time served during probation mandatory rather than discretionary and discloses legislative intent to give criminal defendants placed on probation credit for all time spent in custody during probationary periods. "The statute places no limits, conditions, or discretion upon the grant of credit." Brodie v. State, 1 Kan. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.