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State v. Taylor

Supreme Court of Kansas

March 14, 2014

STATE OF KANSAS, Appellee,
v.
SHERWIN TAYLOR, Appellant

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge.

SYLLABUS

BY THE COURT

1. A speedy trial claim is not properly raised in a motion to correct an illegal sentence under K.S.A. 22-3504.

2. Under K.S.A. 1987 Supp. 21-4608, in order for a trial court to impose a consecutive sentence, there must be a prior sentence in existence at the time of the subsequent sentencing. A trial court has no authority under that statute to direct a sentence to run consecutive to a nonexistent sentence that might thereafter be imposed in a pending case.

3. K.S.A. 1987 Supp. 21-4608(4) requires sentences for crimes committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated to be served consecutive to the term or terms under which the person was released.

4. A district court should examine a motion to correct an illegal sentence to determine if it raises substantial issues of law or fact. If it does not, the motion should be summarily denied.

Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, were on the brief for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

Page 1257

OPINION

BILES, J.

Sherwin Taylor appeals the summary denial of his pro se motion to correct an illegal sentence filed 23 years after sentencing. He claims a speedy trial violation deprived the sentencing court of jurisdiction to impose sentence, and that the sentencing court improperly ordered his sentences to run consecutive to sentences not yet imposed in another case. He also claims the district [299 Kan. 6] court erred by summarily denying the motion, arguing he was entitled to appointed counsel under the statute governing motions to correct an illegal sentence, K.S.A. 22-3504.

Taylor's speedy trial claim cannot be raised in a motion to correct an illegal sentence because it challenges his convictions, not the sentences imposed. See State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).

But the consecutive sentencing claim is more complicated. A sentence cannot be ordered to run consecutive to a sentence not yet imposed. State v. Reed, 237 Kan. 685, 690, 703 P.2d 756 (1985). In that respect, the sentencing court erred by running the sentences in this case consecutive to sentences not yet imposed in another case pending against Taylor, 87 CR 412. K.S.A. 1987 Supp. 21-4608(4) required consecutive sentences in this case if Taylor committed the crimes while on ...


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