State v. Anthony, 87,373.
Decision Date | 15 March 2002 |
Docket Number | No. 87,373.,87,373. |
Citation | 42 P.3d 207,30 Kan. App.2d 427 |
Parties | STATE OF KANSAS, Appellee, v. MICHAEL J. ANTHONY, Appellant. |
Court | Kansas Court of Appeals |
Sarah Ellen Johnson, assistant appellate defender, and Steven R. Zinn, deputy appellate defender, for appellant.
Richard A. Olmstead, assistant district attorney, Nola Foulston, district attorney, and Carla J. Stovall, attorney general, for appellee.
Before PIERRON, P.J., JOHNSON, J., and BUCHELE, S.J.
Michael J. Anthony pled guilty to a third offense of driving under the influence of alcohol (DUI), in violation of what is now K.S.A. 8-1567 ( ). The district court imposed the maximum imprisonment sentence of 12 months. After serving the mandatory minimum of 90 days in jail, Anthony filed a motion to modify his sentence by granting him probation. Following a hearing, the district court found it lacked jurisdiction to modify Anthony's sentence and denied his motion. We reverse and remand for a determination upon the merits of Anthony's motion.
The sole issue on appeal is whether a district court had jurisdiction to modify a sentence imposed under K.S.A. 8-1567(f). The district court, apparently relying on State v. Smith, 26 Kan. App. 2d 272, 981 P.2d 1182, rev. denied 268 Kan. 854 (1999), determined it had no jurisdiction to consider Anthony's motion. The issue before the court is purely legal in nature. We are not bound by the decision of the district court on questions of law. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
Anthony contends the plain language of the statute necessarily allows the district court to modify his sentence. Anthony was sentenced under K.S.A. 8-1567(f), which provided in relevant part:
Anthony argues Smith is inapplicable because his sentence was imposed under 8-1567 and this court has previously determined that the sentencing guidelines do not apply to felony DUI sentences. See State v. Webb, 20 Kan. App.2d 873, 876, 893 P.2d 255 (1995); State v. Binkley, 20 Kan. App.2d 999, 1001, 894 P.2d 907 (1995). However, this ignores the fact that under the version of K.S.A. 21-4704(i) in effect at the time of the crime for which Smith was convicted, felony criminal deprivation of property was exempted from the sentencing grid in the same manner as felony DUI. (In 2001, the legislature amended 21-4704[i], deleting 21-3705 as an exemption and adding 21-3412a[b][3][domestic battery].) K.S.A. 21-4704(i) provided:
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State v. Anthony, 87,373.
...the influence (DUI). The Court of Appeals reversed and remanded for a determination on the merits of his motion in State v. Anthony, 30 Kan. App.2d 427, 42 P.3d 207 (2002). We granted the State's petition for review under K.S.A. 20-3018(b), since an earlier panel of the Court of Appeals app......