LaBona v. State, 68850
Decision Date | 15 April 1994 |
Docket Number | No. 68850,68850 |
Citation | 255 Kan. 66,872 P.2d 271 |
Parties | Kevin J. LaBONA, Appellant, v. STATE of Kansas, Appellee. |
Court | Kansas Supreme Court |
Syllabus by the Court
In a criminal case wherein the petitioner is convicted of two counts of indecent liberties with a child based upon his pleas of guilty and files a K.S.A. 60-1507 motion seeking to set aside his convictions, the record is examined and it is held: (1) The petitioner waived the right to challenge the failure of the State to charge the specific offense of aggravated incest and acquiesced in his convictions of indecent liberties with a child; (2) the district court is therefore not required to vacate his pleas of guilty, and the sentence imposed is legal.
Steven R. Zinn, Deputy Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the briefs, for appellant.
Timothy J. Chambers, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.
Kevin LaBona appealed from the denial of his K.S.A. 60-1507 motion. He sought to set aside his convictions on two counts of indecent liberties with a child pursuant to State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992). The Court of Appeals reversed pursuant to Carmichael v. State, 18 Kan.App.2d 435, 856 P.2d 934 (1993), which held that Williams states a jurisdictional rule that may be asserted at any time, 856 P.2d 193. We granted the State's petition for review.
On April 3, 1986, Kevin LaBona pled guilty to two counts of indecent liberties with a child in violation of K.S.A. 21-3503. The victim was his daughter.
LaBona filed a K.S.A. 60-1507 motion, seeking to set aside his convictions pursuant to Williams. The district court denied the motion on the ground that Williams "does not state a retroactive application and is therefore not applicable."
The Court of Appeals reversed pursuant to Carmichael and stated:
The sole issue raised is whether the district court erred in denying LaBona's K.S.A. 60-1507 motion seeking to set aside his convictions of indecent liberties with a child pursuant to State v. Williams. The same issue is raised in Carmichael v. State (No. 67,757, this day decided). In Carmichael, we rejected the Court of Appeals' determination that Williams stated a jurisdictional rule. In so doing, we said:
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LaBona pled guilty to indecent liberties with his daughter, and a jury convicted Carmichael of the rape of his daughter. This difference distinguishes the present case from Carmichael. Our decision in Carmichael is not determinative of this appeal.
Since granting this petition for review, this court also decided State v. Reed, 254 Kan. 52, 865 P.2d 191 (1993). Reed failed to report when she became ineligible and continued to receive assistance from the ADC and Food Stamp programs. She was charged with theft by deception and making a false writing, pled guilty to felony theft, and was granted probation. Ten months later her probation was revoked. Reed appealed to the Court of Appeals. There she argued for the first time that her conviction should be vacated because the district court lacked jurisdiction to accept her plea because she had been erroneously charged with theft by deception instead of welfare fraud. She relied on State v. Wilcox, 245 Kan. 76, 775 P.2d 177 (1989), and Williams.
The Court of Appeals concluded that Reed was improperly charged with theft by deception and that the district court therefore had no jurisdiction to accept Reed's guilty plea. The Court of Appeals vacated her conviction. The State's petition for review was granted.
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State v. Singleton, No. 92,638.
...incest, a crime which carried a lesser sentence. Baker had entered a plea of guilty to both charges and, under LaBona v. State, 255 Kan. 66, 69, 872 P.2d 271 (1994), our Supreme Court held that Baker waived the right to challenge the State's decision to charge him with the more general crim......
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Bryant v. State, 91,113.
...appropriate sentence. In support of this position, Bryant cites Carmichael v. State, 255 Kan. 10, 872 P.2d 240 (1994); LaBona v. State, 255 Kan. 66, 872 P.2d 271 (1994); State v. Heywood, 245 Kan. 615, 783 P.2d 890 (1989); and Barnes. Carmichael collaterally attacked his jury convictions ba......
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Hunt v. Daily
...to charge the more specific crime of aggravated incest, and acquiesces in the convictions for indecent liberties. LaBona v. State, 255 Kan. 66, 872 P.2d 271 (Kan. 1994); Baker, 20 Kan.App.2d at 808-11, 894 P.2d 221 Garrett, 20 Kan.App.2d at 516, 889 P.2d 795. The Kansas courts additionally ......
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Reed v. Hannigan, 01-3195.
...the sentence for the crime of rape and remand for resentencing for the crime of aggravated incest.2 In contrast, in LaBona v. State, 255 Kan. 66, 872 P.2d 271, 273 (1994), the court held that a defendant who voluntarily pled guilty to the crime of indecent liberties with a child waived the ......