Review of the judgment of the Court of Appeals in 38 Kan. App. 2d 165, 166 P.3d 418 (2007). Appeal from Sedgwick district court, DAVID W. KENNEDY, judge.
1. An illegal sentence is a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized; or a sentence which is ambiguous with regard to the time and manner in which it is to be served.
2. Whether a criminal sentence is illegal, e.g., imposed without jurisdiction, is a question of law with unlimited review.
3. When a sentence is imposed for a crime for which the defendant was not convicted, but in fact is appropriate for another crime, the purported error is within the jurisdiction of the appellate court to review.
4. When a sentence is imposed for a crime for which the defendant was not convicted, but in fact is appropriate for another crime, the sentence is illegal because it is imposed without trial court jurisdiction.
5. The sentencing of a criminal defendant is strictly controlled by statute.
6. When a sentence is imposed for a crime for which the defendant was not convicted, but in fact is appropriate for another crime, the sentence is illegal because it does not conform to the statutory provision for the offense of conviction.
7. Under the facts of this case, the court has authority to review the claim of an illegal sentence. Additionally, the sentence imposed is illegal because it was imposed by a court without jurisdiction and because the sentence did not comport with the statutory provision in the character or term of the punishment authorized.
8. The existence of jurisdiction is a question of law over which this court's review is unlimited.
9. Whether a crime is a lesser included offense is a question of law.
10. The crimes of severity levels 5 and 8 aggravated battery are both lesser included offenses of severity level 4 aggravated battery because they are lesser degrees of the same crime pursuant to K.S.A. 21-3107(2)(a).
11. Under the facts of this case, the trial court had jurisdiction to convict the defendant of severity level 5 aggravated battery because it is a lesser included offense of the crime charged: level 4 aggravated battery.
12. When a party fails to request a jury instruction at trial, on appeal the purported error is reviewed for clear error.
13. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.
14. Under the facts of this case, the trial court did not clearly err in failing to instruct on proximate cause.
The opinion of the court was delivered by: Nuss, J.
Judgment of the Court of Appeals affirming the district court is reversed in part and affirmed in part. Judgment of the district court is reversed in part and affirmed in part.
Steven M. McCarley was convicted by a jury of reckless aggravated battery, a severity level 5 person felony. The conviction, however, was erroneously classified as a severity level 8 person felony in the presentence investigation report. Because no one caught the error, the trial court sentenced McCarley to the appropriate grid sentence under the Kansas Sentencing Guidelines Act for a level 8 offense--23 months' imprisonment--rather than the level 5 offense--122 to 136 months' imprisonment.
When the State discovered the error, it filed a motion to correct an illegal sentence. When that motion was denied, the State appealed and McCarley cross-appealed. A split Court of Appeals rejected all allegations of error in State v. McCarley, 38 Kan. App. 2d 165, 166 P.3d 418 (2007). This court granted the respective petitions and cross-petitions for review under K.S.A. 20-3018(b).
The issues on appeal, and this court's accompanying holdings, are as follows:
1. Did the trial court have jurisdiction to correct a purported illegal sentence when the illegality favored McCarley? Yes.
2. Did the trial court lack jurisdiction to convict McCarley of level 5 reckless aggravated battery because that crime was never charged in the complaint and purportedly is not a lesser included offense of intentional aggravated battery? No.
3. Did the trial court err when it failed to instruct the jury that McCarley's actions had to be the proximate cause of the victim's injuries to find him guilty of reckless aggravated battery? No.
Accordingly, we reverse the judgments of the Court of Appeals and trial court on issue 1 and remand to the trial court to correct McCarley's illegal sentence. We ...