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State v. Bryant

June 8, 2007; as modified August 14, 2007

STATE OF KANSAS, APPELLEE,
v.
JULIAN L. BRYANT, APPELLANT.



Appeal from Sedgwick District Court, BENJAMIN L. BURGESS, judge.

SYLLABUS BY THE COURT

1. Whether jurisdiction exists is a question of law over which an appellate court has unlimited review. Furthermore, the interpretation of a statute is a question of law over which an appellate court has unlimited review. An appellate court is not bound by the district court's interpretation of a statute.

2. Under the facts of this case, where the district court initially granted the parties 30 days from sentencing to settle the issue of restitution, the district court did not abuse its discretion in subsequently allowing the State more than 30 days to determine the amount of the defendant's restitution.

3. In determining whether a legislative provision is mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system, and dispatch of the public business, the provision is directory. Factors which would indicate that the provisions of a statute or ordinance are mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time than that designated, or (2) a provision for a penalty or other consequence of noncompliance.

4. The procedure set forth in K.S.A. 22-3424(d) requiring the district court to hold a hearing to establish restitution before imposing sentence is directory rather than mandatory.

The opinion of the court was delivered by: Malone, J.

Affirmed.

Before HILL, P.J., MALONE, J., and LARSON, S.J.

Julian L. Bryant appeals the district court's order requiring him to pay restitution. Bryant claims the district court lacked jurisdiction to order restitution because the district court failed to hold a restitution hearing before imposing sentence as required by K.S.A. 22-3424(d). In the alternative, Bryant claims the district court lacked jurisdiction to order restitution because the amount of the restitution was not determined within 30 days of sentencing as initially ordered by the court. We hold the procedure set forth in K.S.A. 22-3424(d) is directory rather than mandatory and, thus, the district court retained jurisdiction to determine the amount of Bryant's restitution after sentencing. We further conclude the district court did not abuse its discretion in allowing the State more than 30 days from sentencing to determine the amount of Bryant's restitution.

On April 11, 2005, Bryant pled no contest to one count of aggravated robbery and pled guilty to seven counts of theft, one count of aggravated burglary, two counts of forgery, and one count of burglary, in three consolidated cases. On June 1, 2005, the district court sentenced Bryant to a controlling term of 48 months' imprisonment. At the sentencing hearing, immediately after the district court imposed the term of Bryant's sentence, the court started to announce a restitution order based on the information the court had been provided at the hearing. However, the State interrupted the court and requested a 30-day extension of time to determine the proper amount of restitution. The district court granted the extension and stated it was giving the parties 30 days to reach an agreement on restitution, and if the parties could not agree, then the court would schedule a hearing to determine the amount of restitution. Defense counsel did not object to this procedure. The journal entries of sentencing filed by the district court stated: "The Court finds that restitution is owed in this case in an amount to be determined within 30 days, and advises the Kansas Parole Board that restitution should be made a condition of defendant's post release supervision."

On September 30, 2005, nearly 4 months after the sentencing, the State filed a motion to schedule a restitution hearing. The motion stated that Bryant's original attorney had left the public defender's office and the assistant district attorney, who had appeared at Bryant's sentencing hearing, went on an extended medical leave soon after the sentencing. The motion also indicated the State had sent a proposed restitution order to the public defender's office on September 6, 2005, but the public defender's office did not agree to the order.

The district court held a scheduling hearing on October 12, 2005. At the hearing, Bryant's counsel noted that the time was beyond the 30-day extension initially granted by the court to determine restitution. The district court decided to set the matter for an evidentiary hearing but allowed Bryant to file with the court any legal authority to support his position that it was too late for the court to determine restitution.

The district court held an evidentiary hearing on December 7, 2005. Several witnesses testified for the State, and both parties offered exhibits concerning the proper amount of restitution. At the close of the evidence, the district court noted it had not received anything from defense counsel concerning whether the court had authority to determine the amount of restitution at that time. In the absence of any legal authority to the contrary, the district court found it was authorized to determine the amount of restitution. The district court entered an order establishing restitution in the total amount of $11,155.56 payable to several different victims. Bryant timely appeals.

On appeal, Bryant does not contest the reasonableness of the amount of restitution ordered by the district court. Instead, Bryant claims the district court lacked jurisdiction to order restitution because the district court failed to hold a restitution hearing before imposing sentence as required by K.S.A. 22-3424(d). In the alternative, Bryant claims the district court lacked jurisdiction to order restitution because the ...


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