Stephen W. Sylva appeals a district court order denying his
motion to modify sentence, arguing the court was required by
K.S.A. 1989 Supp. 21-4603(3)(a) to grant probation because
probation was recommended in the report of the State Reception
and Diagnostic Center (SRDC) and because probation
was a presumptive sentence for him as a first-time class D felon.
Sylva pled guilty to one count of attempt to sell cocaine
(K.S.A. 1987 Supp. 65-4107[b], K.S.A. 65-4127a, K.S.A.
21-3301), a class D felony, and one count of attempt to sell
marijuana (K.S.A. 1987 Supp. 65-4105[d], K.S.A. 1987 Supp.
65-4127b[b], K.S.A. 21-3301), a class D felony.
A sentencing hearing was held in which Sylva moved for
probation. The court denied the motion and sentenced Sylva to
commitment to the custody of the Secretary of Corrections for a
term of two to five years for each offense. SRDC issued its
report, recommending that Sylva be considered a candidate for
probation. A hearing was held in which Sylva's motion for
modification of sentence was denied. Sylva filed a motion to
reconsider the motion to modify, which was also denied.
K.S.A. 1989 Supp. 21-4603(3)(a) provides that at any time
within 120 days of sentencing the district court shall modify a
sentence imposed "if recommended by the state reception and
diagnostic center unless the court finds that the safety of the
public will be jeopardized and that the welfare of the inmate
will not be served by such modification." K.S.A. 1989 Supp.
21-4603 became effective July 1, 1989. The report filed by SRDC
recommended Sylva "be considered a candidate for probation."
Prior to the 1989 amendment, K.S.A. 21-4603(3) provided that
the court "may" modify a sentence. As amended, the court
shall modify a sentence if recommended by the SRDC unless the
court makes the required findings. The constitutionality of the
amendment has not been challenged in this appeal and need not be
considered because we conclude that the 1989 amendment is not
K.S.A. 1989 Supp. 21-4606a also became effective on July 1,
1989. It provides:
"The presumptive sentence for a person who has
never before been convicted of a felony, but has now
been convicted of a class D or E felony or
convicted of an attempt to commit a class D felony
shall be probation, unless the conviction is of a
crime specified in article 34, 35 or 36 of chapter 21
of Kansas Statutes Annotated or the crime is a
felony violation of K.S.A. 65-4127b, and amendments
thereto, which involved the manufacture, sale, offer
for sale or possession with intent to sell such
controlled substances. In determining whether to
impose the presumptive sentence, the court shall
consider any prior record of the person's having been
convicted or having been adjudicated to have
committed, while a juvenile, an offense which would
constitute a felony if committed by an adult. If the
presumptive sentence provided by this section is not
imposed, the provision of K.S.A. 1989 Supp. 21-4606b
shall apply." (Italics indicates 1989 amendments.)
Sylva was convicted of one count of attempt to sell cocaine,
which is a class D felony, and one count of attempt to sell
marijuana, which is a class D felony. Because attempt is defined
by K.S.A. 21-3301, Sylva was not convicted of a crime specified
in articles 34, 35, or 36 of chapter 21 of the Kansas statutes.
Similarly, Sylva was not convicted of K.S.A. 1987 Supp. 65-4127b
but rather was convicted of attempt to violate K.S.A. 1987 Supp.
65-4127b, which prohibits the sale of cocaine or marijuana. See
Sutton v. State, 6 Kan. App. 2d 831, 636 P.2d 187, rev. denied
230 Kan. 819 (1982) (K.S.A. 1977 Supp. 21-4618, which provided
that probation shall not be granted to any defendant convicted of
a crime set out in article 34 of chapter 21 of the Kansas
statutes in which the defendant used a firearm in the commission
thereof, applies to the crime of murder [K.S.A. 21-3401] but does
not apply to the crime of attempted murder because attempted
murder is not an article 34 crime.). If the 1989 amendments to
21-4606a are applicable in this case, then Sylva is entitled to a
presumption of probation. We conclude they are not applicable.
"While it is . . . a general rule of statutory
construction that a statute will operate
prospectively unless its language clearly indicates
the contrary, that rule is modified where the
statutory change is merely procedural or remedial in
nature and does not affect the substantive rights of
the parties. State v. Hutchinson, 228 Kan. 279,
Syl. ¶¶ 6, 7, 615 P.2d 138 (1980). In Hutchinson we
`As related to criminal law and procedure,
substantive law is that which declares what acts
are crimes and prescribes the punishment therefor;
whereas procedural law is that which provides or
regulates the steps by which one who violates a
criminal statute is punished.' 228 Kan. at 287."
State v. Nunn, 244 Kan. 207, 216, 768 P.2d 268
In Nunn, the Supreme Court found that criminal statutes of
limitation are remedial or procedural, not substantive, and could
be applied retroactively.
In State v. Henning, 3 Kan. App. 2d 607, 609, 599 P.2d 318
(1979), this court held that K.S.A. 1978 Supp. 21-4608(5) was
substantive and must be ...