State v. Babcock

• Decision Date: 14 July 1979
• Docket Number: No. 50868,50868
• Citation: 226 Kan. 356,597 P.2d 1117
• Parties: STATE of Kansas, Appellant, v. Raymond D. BABCOCK, Appellee.
• Court: Kansas Supreme Court

Page 1117

597 P.2d 1117

226 Kan. 356

STATE of Kansas, Appellant, v. Raymond D. BABCOCK, Appellee.

No. 50868.

Supreme Court of Kansas.

July 14, 1979.

Syllabus by the Court

1. K.S.A. 21-4614 requires that a defendant be given credit for "time spent in jail." The credit so granted is limited to time a defendant is in the actual or constructive control of jail or prison officials.

2. When probation is revoked, a trial court may not give credit on a defendant's sentence for time spent in a halfway house fulfilling a condition of probation.

Frank J. Yeoman, Jr., Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on brief for appellant.

Robert M. Brown, Topeka, argued the cause and was on the brief for appellee.

McFARLAND, Justice:

Raymond D. Babcock was convicted of burglary (K.S.A. 21-3715), although the briefs of the parties refer to the offense as being theft (K.S.A. 21-3701). The disposition of the case is summarized in chronological order as follows: (1) October 4, 1977, defendant received a 1 to 10 sentence; (2) January 19, 1978, sentence was suspended and defendant was placed on probation with special conditions relative to transitionary stay at the Topeka Halfway House; (3) September 15, 1978, defendant's probation was revoked and original sentence was reinstated, with defendant to receive credit for time spent in custody; and (4) January 4, 1979, court ordered credit to include time spent in the Halfway House. There is no dispute that defendant should receive credit for all time spent in jail and in the Kansas Reception and Diagnostic Center (K.R.D.C.). The propriety of the Halfway House credit is the sole issue on appeal by the State, based on a question reserved.

The issue before us divides into two questions. The first is whether K.S.A. 21-4614 mandates the inclusion of the Halfway House time as credit on the sentence. The second question is whether, if such credit is not statutorily mandated, the trial court had discretion to grant it. We will first determine the question of whether such credit is mandated by the statute.

The statute relative to jail time credit is as follows:

K.S.A. 21-4614. Deduction of time spent in confinement.

"In any criminal action in which the defendant is convicted upon a plea of guilty or trial by court or jury, the judge, if he sentences the defendant to confinement, shall direct that for the purpose of computing defendant's sentence and his parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the journal entry of conviction, such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent in jail pending the disposition of the defendant's case. In recording the commencing date of such sentence the date as specifically set forth by the court in the journal entry of conviction shall be used as the date of sentence and all good time allowances as are authorized by the Kansas adult authority are to be allowed on such sentence from such date as though the defendant were actually incarcerated in any of the institutions of the state correctional system. Such jail time credit is not to be considered to reduce the minimum or maximum terms of confinement as are authorized by law for the offense of which the defendant has been convicted."

Prior to July 1, 1974, the granting of jail time credit was discretionary with the sentencing judge. The removal of the judge's discretion in this area by the above cited statute was discussed in State v. Thorn, 1 Kan.App.2d 460, 461, 462-63, 570 P.2d 1100, 1101, 1102 (1977), as follows:

"The language of K.S.A. 21-4614, providing that the computation date of the sentence 'shall . . . reflect . . . time which the defendant has spent in jail . . .' is clearly mandatory. The statute was amended in 1973, effective July 1, 1974, to include the mandatory language. Prior to the amendment, the statute provided that allowance for time spent in jail pending disposition of the defendant's case was discretionary with the court. Hazelwood v. State, 215 Kan. 442, 524 P.2d 704. The amendment of K.S.A. 21-4614 removed the district court's discretion.

"The 1973 amendment making the jail time credit provisions mandatory rather than discretionary discloses legislative intent to give criminal defendants sentenced to incarceration credit for all time spent in custody on the charge for which they are sentenced. The statute places no limits, conditions or discretion upon the grant of credit."

Kansas appellate courts have approved credit under the mandatory credit statute in the following situations: (1) Time in a mental hospital on transfer from jail to be evaluated for competency to stand trial (State v. Mackley, 220 Kan. 518, 552 P.2d 628 (1976)); (2) time in jail by juvenile court order, prior to certification (State v. Thorn, 1 Kan.App.2d 460, 570 P.2d 1100); (3) time in jail in another jurisdiction where defendant was being held solely for the Kansas court on warrant for violation for probation in case in question (Thorn ); and (4) all time in jail on the charge, whether prior to or after conviction (Thorn ). Credit was not extended to time in jail on an unrelated charge (Campbell v. State, 223 Kan. 528, 575 P.2d 524 (1978)), or for time on probation (State v. Snook, 1 Kan.App.2d 607, 571 P.2d 78 (1977)).

Jail time credit is wholly a matter of statute and, as would be expected, varies widely among the states. California is apparently the only state which specifically authorizes credit for time spent in halfway houses. Cal.Penal Code § 2900.5 (West 1978 Supp.). By virtue of the great disparity in the language of the various statutes, case law of other jurisdictions is of little assistance in resolving the issue before us.

The following language from State v. Mackley, 220 Kan. at 519, 552 P.2d at 629, concerning the nature of Mackley's confinement in the mental hospital, on transfer from jail to determine competency to stand trial, is relied on by both parties in support of their respective positions:

"Under the circumstances of this case, the confinement at the state mental hospitals was tantamount to being in jail. The physical place of confinement is not important as the appellant technically continued to be in jail while held in custody at the hospitals. He was not free on bail, had no control over his place of custody and was never free to leave the hospitals. For all practical intents and purposes, he was still in jail. The court takes judicial notice that the state mental hospitals have the facilities to enforce confinement of their patients, which brings them within the dictionary definition of a 'jail.' "

The State argues the halfway house fails the Mackley test and defendant argues the halfway house passes the Mackley test.

At this point we must go into some detail as to the circumstances in this case. At the time of original sentencing defendant was seeking probation. There was considerable discussion of defendant's past history of difficulty in complying with rules. The court sentenced defendant to incarceration, but was obviously waiting for a K.R.D.C. evaluation report before considering the matter of sentencing closed. On motion of defendant within the statutory 120-day period for sentence modification (K.S.A. 1978 Supp. 21-4603), the sentence was suspended and defendant was placed on four years of supervised probation subject to the general conditions of probation and certain special conditions.

The following excerpt from the transcript of the hearing reflects what was occurring:

"THE COURT: Well, I think that you understand that the Halfway House is a temporary arrangement designed to assist you to get adjusted and get you employed, and you can move out of that as soon as you can. There is nothing permanent about that.

"What is the average stay there, Mr. Marchand?

"MR. MARCHAND: Your Honor, there the average stay is sixty days or so. Some inmates have been known to stay longer. The other aspect of the Halfway House is that people have been known to fail. That is to be unable to live up to the rules of the house and to be remanded to the custody of the jail. So it's kind of a two-sided coin.

"THE COURT: (To defendant Babcock) What do you think? Do you think you can live by the rules there?

"DEFENDANT BABCOCK: Yes, I think so.

"THE COURT: You know what my alternative is, I guess.

"DEFENDANT BABCOCK: Yes.

"THE COURT: Alright, based on the information now before the Court, I am satisfied that the most productive judgment in this case will be to vacate and modify the Court's judgment and to suspend the imposition of sentence heretofore imposed and to place this defendant upon four years supervised probation on the usual conditions and upon the following conditions: One, that he remain in the Shawnee County Jail pending an opening in the Halfway House, that as soon as an opening occurs there and there may be one there now, I just don't know that he go to our Halfway House until such time as the administrators believe that he is sufficiently well adjusted to maintain his residence elsewhere and that he remain there until he has full time employment in the community. Another condition of probation will be that he have and maintain full time employment in the community throughout the term of our probation, and the people at the Halfway House will help you, Mr. Babcock, in getting to the place that you need to go check in to work and this kind of thing, and as soon as full time employment can be obtained he should have daytime passes or whatever is required for him to go to work and return each time.

"Now, if, Mr. Babcock, you do not live up to the rules and regulations of the Halfway House then I have to bring you back to the Shawnee County Jail and at that time we will have a hearing about...