Syllabus by the Court
1. When a district court misinterprets its own statutory authority by refusing to consider a defendant's request for a departure sentence of probation that the district court has statutory authority to consider, the appellate court may take up the limited question of whether the district court properly interpreted the sentencing statute.
2. The sentencing grid set out at K.S.A. 2012 Supp. 21-6804(a) defines presumptive punishments. K.S.A. 2012 Supp. 21-6804(d). It includes presumptive prison, presumptive probation, and border boxes.
3. According to K.S.A. 2012 Supp. 21-6804(d), presumptive sentences under the sentencing grid are subject to the court's discretion to enter a departure sentence.
4. There are some unique circumstances, set out specifically in K.S.A. 2012 Supp. 21-6804, when an offender may fall into a " presumptive probation" box based on his or her crime and criminal history but because of these special circumstances the offender's sentence must be presumptive prison. K.S.A. 2012 Supp. 21-6804(p) is one such provision.
5. When the special rule set out in K.S.A. 2012 Supp. 21-6804(p) calls for a presumptive prison sentence, the court retains the discretion to grant a departure sentence of probation.
Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Mark Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, P.J., BUSER and STANDRIDGE, JJ.
Cleophus C. Currie appeals his sentence, arguing that the sentencing court erred by misinterpreting K.S.A. 2012 Supp. 21-6804(p), finding that the statute prevented the court from granting probation in Currie's case. The State concedes that the statute allows probation, but the State asserts that because Currie was given a presumptive sentence, this court does not have jurisdiction to hear this appeal. We find that because the court misinterpreted its authority in the case by denying probation on the sole basis that it believed such action was not allowed by the statute, we have jurisdiction to hear the appeal. Furthermore, we find that K.S.A. 2012 Supp. 21-6804(p) does allow the district court to enter a departure sentence. Accordingly, we vacate Currie's sentence and remand the case for resentencing.
FACTUAL AND PROCEDURAL HISTORY
In three cases, Currie pleaded guilty to one count of burglary, one count of criminal damage to property, one count of misdemeanor possession of drug paraphernalia, one count of identity theft, two ...