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State of Kansas v. Derek Alonzo

March 29, 2013

STATE OF KANSAS, APPELLEE,
v.
DEREK ALONZO, APPELLANT.



Appeal from Miami District Court; AMY L. HARTH, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT If a district court fails to comply with the requirements of K.S.A. 21-4611(c)(5) by imposing an extended period of probation without making required findings and the State agrees the sentence is therefore illegal, the district court only has jurisdiction to resentence the defendant during the period of probation that complied with K.S.A. 21-4611(c)(5), unless jurisdiction is retained because the original sentence is on appeal.

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

Review of the judgment of the Court of Appeals in an unpublished decision filed April 15, 2010.

Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is vacated.

The opinion of the court was delivered by

In this appeal, Derek Alonzo argues the district court did not have jurisdiction to resentence him to correct errors in his original sentence after his original sentence would have expired but for the sentencing errors. We agree and vacate the sentence imposed at his resentencing.

FACTS AND PROCEDURAL BACKGROUND

In 2005, Alonzo pleaded guilty to attempted possession of methamphetamine, in violation of K.S.A. 21-3301 and K.S.A. 2004 Supp. 65-4160(a), a drug severity level 4 felony. At the sentencing hearing on July 14, 2005, the district court imposed an underlying prison term of 7 months and granted Alonzo 18 months' probation with mandatory drug treatment pursuant to K.S.A. 2004 Supp. 21-4729. Although required under K.S.A. 21-4611(c)(5) of the Kansas Sentencing Guidelines Act, the district court made no findings to extend Alonzo's presumptive term of probation from 12 months to 18 months. Alonzo did not appeal his original sentence.

Almost 18 months after Alonzo's sentence was imposed, on January 12, 2007, the State filed a motion to revoke Alonzo's probation, alleging he had tested positive for amphetamines on four occasions and had been unsuccessfully discharged from outpatient substance abuse treatment. The district court held a probation violation hearing on February 8, 2007. At the hearing, Alonzo admitted to violating the terms and conditions of his probation by using drugs and not completing treatment. The district court revoked and then reinstated Alonzo's probation for an additional 18 months.

On March 11, 2008, the State filed a second motion to revoke Alonzo's probation. The State alleged Alonzo had violated the terms and conditions of his probation by being arrested and charged with various offenses, failing to inform his supervising probation officer of those arrests, and testing positive for alcohol use.

While the second probation violation motion was pending, the district court held a hearing to resentence Alonzo on November 20, 2008, and to correct the failure to make findings justifying the extended probation term. Following State v. Holt, 39 Kan. App. 2d 741, 186 P.3d 803 (2007), the district court made findings under K.S.A. 21-4611(c)(5) to extend Alonzo's presumptive probation term from 12 months to 18 months. Specifically, the district court found that Alonzo's welfare would not be served by a 12-month probation term because of the nature of the offense and because his evaluation indicated to the court that Alonzo would be better served by the opportunity to receive drug treatment pursuant to K.S.A. 2004 Supp. 21-4729. Alonzo timely appealed his resentencing.

Before the Court of Appeals, Alonzo challenged the district court's jurisdiction to resentence him because, according to Alonzo, he had already completed the only portion of his original sentence that was legal-the 12-month presumptive probation term under K.S.A. 2004 Supp. 21-4705 and K.S.A. 21-4611(c)(3). He argued this meant the district court's jurisdiction over him ended when his legal term of probation ended on July 14, 2006. Consequently, Alonzo contended the district court lacked jurisdiction to revoke and reinstate his probation on February 8, 2007, or to resentence him under Holt on November 20, 2008. The Court of Appeals rejected Alonzo's arguments and affirmed the district court. State v. Alonzo, No. 101,805, 2010 WL 1610404 (Kan. App. 2010) (unpublished opinion).

Alonzo filed a petition for review, which this court granted. This court has jurisdiction ...


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