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State v. Kinder

Supreme Court of Kansas

January 5, 2018

State of Kansas, Appellee,
v.
James Kinder, Appellant.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed December 11, 2015.

          SYLLABUS BY THE COURT

         1. Interpretation of the Kansas Sentencing Guidelines Act (KSGA) is a question of law subject to unlimited review.

         2. To ascertain the legislative intent underlying particular statutory provisions, appellate courts give effect, if possible, to the entire act. It is the court's duty, so far as practicable, to reconcile different provisions so as to make them consistent, harmonious, and sensible.

         3. K.S.A. 2016 Supp. 21-6603(g) defines probation in relevant part as "a procedure under which a defendant, convicted of a crime, is released by the court after imposition of sentence, without imprisonment except as provided in felony cases, subject to conditions imposed by the court and subject to the supervision of the probation service of the court or community corrections."

         4. Once a sentence of confinement has been completed, a defendant cannot be sentenced to "probation" as defined by the KSGA.

         5. One exception to the general rule that an appellate court will not review a moot issue is where the question is capable of repetition and is of public importance.

         Appeal from Wyandotte District Court; J. Dexter Burdette, judge.

          Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Daniel G. Obermeier, assistant district attorney, argued the cause, and Jacob G. Fishman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          NUSS, C.J.

         The district court sentenced James Kinder to nine months' imprisonment. While it awarded Kinder credit for his nearly 12 months of pretrial confinement under K.S.A. 2016 Supp. 21-6615, it also imposed 18 months' probation. Because Kinder's credited jail time actually exceeded the sentence of confinement imposed for his crime, he argued he already served his sentence and the probation therefore was improper.

         The Court of Appeals did not address whether sentencing Kinder to probation was in error and in violation of his Double Jeopardy rights, holding his sentence was a presumptive one under the Kansas Sentencing Guidelines Act (KSGA) and thus beyond judicial review. State v. Kinder, No. 112, 844, 2015 WL 8590406 (Kan. App. 2015) (unpublished opinion) (citing K.S.A. 2016 Supp. 21-6820[c][1]).

         We conclude Kinder is not actually challenging a presumptive sentence so review is appropriate. We further conclude probation cannot be imposed after the full sentence of confinement has been served. Accordingly, we reverse the lower courts.

         Facts and Procedural Background

         The facts material to our analysis are straightforward. In Kinder's petition for our review of the Court of Appeals' decision under K.S.A. 20-3018(b), he ...


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