Carmichael v. State, 67,757

• Decision Date: 15 April 1994
• Docket Number: No. 67,757,67,757
• Citation: 872 P.2d 240,255 Kan. 10
• Parties: Floyd CARMICHAEL, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 240

872 P.2d 240

255 Kan. 10

Floyd CARMICHAEL, Appellant, v. STATE of Kansas, Appellee.

No. 67,757.

Supreme Court of Kansas.

April 15, 1994.

Syllabus by the Court

1. A sentence which does not conform to the statutory provisions, either in character or the term of the punishment authorized, is an illegal sentence.

2. Where a prisoner asserts that his or her sentence is illegal, the prisoner may, at any time, pursuant to K.S.A. 60-1507, move the court that imposed the sentence to correct or vacate the sentence.

3. The exceptional circumstances requirement of Supreme Court Rule 183(c)(3) (1993 Kan.Ct.R.Annot. 152) is applicable only to trial errors affecting constitutional rights and not to a motion to correct, set aside, or vacate a sentence.

4. The complaint or information is the jurisdictional instrument on which the defendant stands trial. Where it alleges all the essential elements of the offense charged, the district court has jurisdiction even if the criminal statute cannot be applied to the facts involved.

5. Where there is a single act of forcible sexual intercourse and the defendant is related to the victim as set out in K.S.A.1993 Supp. 21-3603(a)(1), the defendant can be charged and convicted of the specific offense of aggravated incest and not the general offense of rape. If the defendant is convicted and sentenced for rape, the sentence will be vacated and the defendant resentenced for aggravated incest. Language to the contrary in State v. Moore, 242 Kan. 1, 748 P.2d 833 (1987), is disapproved.

Julie A. Gorenc, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, and James F. Vano, Special Appellate Defender, of Overland Park, were on the brief for appellant.

Debra S. Byrd, Asst. Dist. Atty., argued the cause, and Julie Wright Connolly, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were on the brief for appellee.

ALLEGRUCCI, Justice:

Floyd Carmichael appeals from the denial of his K.S.A. 60-1507 motion. He sought to set aside his jury convictions of two counts of rape and one count of aggravated kidnapping pursuant to State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992). The Court of Appeals reversed his convictions of rape and affirmed his conviction of aggravated kidnapping. Carmichael v. State, 18 Kan.App.2d 435, 856 P.2d 934 (1993). This court granted the State's petition for review and denied Carmichael's cross-petition for review.

The issue is whether Carmichael's K.S.A. 60-1507 motion seeking to set aside his convictions of rape should have been granted pursuant to State v. Williams.

On September 27, 1985, a jury found Carmichael guilty of two counts of rape and one count of aggravated kidnapping. The victim was his daughter.

On July 22, 1991, Carmichael filed the present K.S.A. 60-1507 motion, alleging ineffective assistance of counsel. The district court denied the motion. On appeal, Carmichael made the additional argument based on Williams that he was wrongly charged with and convicted of rape. With regard to the conviction of aggravated kidnapping, Carmichael argued that its validity depended on the validity of the rape convictions because he was alleged to have committed the aggravated kidnapping to facilitate commission of the rapes. 18 Kan.App.2d at 438, 856 P.2d 934.

The Court of Appeals concluded that the district court lacked jurisdiction to convict Carmichael of rape of his daughter and reversed his rape convictions. The aggravated kidnapping conviction was affirmed because the Court of Appeals determined that there was evidence sufficient to support alternative theories contained in the aggravated kidnapping charge. 18 Kan.App.2d at 446-48, 856 P.2d 934. Carmichael's cross-petition for review of the Court of Appeals' affirmance of the aggravated kidnapping conviction was denied.

In Williams, 250 Kan. at 736-37, 829 P.2d 892, this court concluded that when a defendant is related to the victim as set out in K.S.A. 21-3603(1), he may be charged with aggravated incest for engaging in the acts prohibited by the statute but not with indecent liberties with a child. The decision was based on the principle that a statute dealing specifically with a certain phase of a crime controls over a statute dealing generally with the crime unless the legislature intended otherwise.

With respect to the rape convictions, the Court of Appeals concluded:

"Williams states a jurisdictional rule which requires persons within a special class to be charged with aggravated incest. In a criminal action, the trial court must not only have jurisdiction over the offense charged, but it must also have jurisdiction of the question which its judgment assumes to decide. State v. Chatmon, 234 Kan. 197, 205, 671 P.2d 531 (1983). Here, the court's judgment of conviction found Carmichael guilty of raping his daughter. If one of the prohibited acts enumerated in the aggravated incest statute is committed by a person who is a biological, step, or adoptive relative of a child victim, that person must be charged with aggravated incest and not with a crime which is applicable to persons in general. Carmichael is within a special class of persons delineated in the aggravated incest statute who must be charged with aggravated incest if he raped a person under the age of 18 who he also knew was related to him.

....

"The trial court was without jurisdiction to convict Carmichael of the rape of his daughter when he was within the special relationship class of persons who must be charged with aggravated incest. A conviction upon charges which do not apply to the person convicted is a clear denial of due process under the Fourteenth Amendment to the United States Constitution. As a result, the judgment against Carmichael for the offense of rape where the court was without jurisdiction to decide the issue is void." 18 Kan.App.2d at 446, 856 P.2d 934.

Since the court's granting of the petition for review in this case, we have decided State v. Sims, 254 Kan. 1, 862 P.2d 359 (1993). There, this court expressly rejected the idea that Williams announced a jurisdictional rule. Here, as in Williams, the petitioner is charged under the general statute rather than the controlling specific statute. The information/complaint is the jurisdictional instrument upon which a defendant stands trial, and it must allege the essential elements of the offense charged. State v. Bishop, 240 Kan. 647, 652, 732 P.2d 765 (1987). Since the complaint does allege each essential element of the crime charged, the district court had jurisdiction. As stated at 22 C.J.S., Criminal Law § 157, p. 188:

"Whether or not a court has jurisdiction of the offense in a particular case is determined from the allegations in the accusation. An information is the only vehicle by which a court obtains its jurisdiction, and is a limit upon that jurisdiction. Therefore, where the information charges no crime, the court lacks jurisdiction to try the accused. As long as the complaint alleges that a crime has been committed, the court has subject matter jurisdiction even if the criminal statute cannot be applied to the facts involved."

Sims was convicted of rape, aggravated criminal sodomy, and aggravated incest. The victim was his granddaughter. Months after his convictions, Sims filed a motion to arrest judgment on the rape and aggravated criminal sodomy convictions on the ground that, pursuant to Williams, the district court had no jurisdiction to convict him of those offenses. The district court agreed and arrested judgment on the rape and aggravated criminal sodomy convictions. 254 Kan. at 3-4, 862 P.2d 359. On appeal, the parties were directed to brief this question: "Did the district court have jurisdiction to arrest judgment in this case on the basis of defendant's motion to arrest judgment which was filed later than the time authorized by K.S.A. 22-3502?" 254 Kan. at 5, 862 P.2d 359.

The timing of Sims' motion differed greatly from that of Williams', which was made at the conclusion of the preliminary examination. In that regard, the court stated in Sims: "Because Williams dealt with sufficiency of the evidence at the preliminary examination and not with jurisdiction, Williams does not answer the question in this case." 254 Kan. at 8, 862 P.2d 359. The court observed that a motion for arrest of judgment, such as Sims' motion, "does not test the sufficiency of the evidence to convict a defendant of the crime." 254 Kan. at 9, 862 P.2d 359.

In Sims' case, we held:

"Where the evidence adduced at trial does not support the crime alleged in the charging document but supports a separate crime, the defendant cannot challenge the verdict on grounds of insufficiency of the evidence by a motion to arrest judgment. A motion to arrest judgment is a challenge to the charging instrument or the jurisdiction of the court to try the offense alleged in the charging document, whereas an insufficiency argument is a challenge to the verdict." 254 Kan. at 11, 862 P.2d 359.

Thus, this court found the district court did not have jurisdiction to arrest Sims' convictions for rape and aggravated criminal sodomy. 254 Kan. at 11, 862 P.2d 359.

Carmichael, like Sims, filed a motion long after he had been convicted of rape of a relative, seeking to reverse his convictions. The procedural device used by Sims was a motion to arrest judgment; the procedural device used by Carmichael was a K.S.A. 60-1507 motion. As discussed in Sims, Williams challenged the crime charged in the complaint at the conclusion of the preliminary examination. The magistrate discharged Williams because it did not appear from the evidence which had been adduced at the preliminary examination that Williams had committed the crime with which he had been charged. Hence, "Williams dealt with sufficiency of the evidence at the preliminary examination." 254 Kan. at 8, 862 P.2d 359. The basis for this court's decision in Sims...