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
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 King's probation was revoked on October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
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
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."
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
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
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. ...