State v. Hooks, 70,440

• Decision Date: 27 January 1995
• Docket Number: No. 70,440,70,440
• Citation: 256 Kan. 869,888 P.2d 853
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Rodney J. HOOKS, Appellant.

Page 853

888 P.2d 853

256 Kan. 869

STATE of Kansas, Appellee, v. Rodney J. HOOKS, Appellant.

No. 70,440.

Supreme Court of Kansas.

Jan. 27, 1995.

Syllabus by the Court

In construing K.S.A.1992 Supp. 21-4603(4), it is held: The district court erred in concluding it had no jurisdiction to hear defendant's second motion to modify sentence where (1) the sentence had been modified prior to the filing of defendant's direct appeal from the conviction; (2) the direct appeal was determined adversely to defendant; and (3) modification of the modified sentence was sought within 120 days of receipt of the mandate on the direct appeal.

Michael H. Dunn, Wichita, was on the brief for appellant.

Peter G. Collins, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were on the brief for appellee.

McFARLAND, Justice:

Rodney J. Hooks appeals from the district court's determination that it lacked jurisdiction to hear his motion seeking sentence modification.

Defendant was convicted of 15 felonies, of which five were class A and four were class B. These convictions were affirmed in State v. Hooks, 251 Kan. 755, 840 P.2d 483 (1992). Prior to filing his notice of appeal, defendant had sought and obtained sentence modification. No issue relative to sentencing was included in the first appeal. The mandate in the first appeal was filed in the district court on December 3, 1992. On March 9, 1993, defendant filed his second motion to modify (seeking modification of the previously modified sentence). The motion was denied on the ground the court lacked jurisdiction to hear the motion. Defendant appeals from that determination.

The pertinent statute is K.S.A.1992 Supp. 21-4603(4), which provides:

"(a) Except when an appeal is taken and determined adversely to the defendant as provided in subsection (4)(b), at any time within 120 days after a sentence is imposed, after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment to a community correctional services program by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits and shall modify such sentence if recommended by the Topeka correctional facility unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification.

"(b) If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals."

Interpretation of this same statute was recently before us in State v. Smith, 254 Kan. 16, 864 P.2d 1208 (1993). Defendant Smith had been found guilty of multiple felonies on his plea of nolo contendere and was sentenced thereon. His motion for sentence modification was denied. He appealed from the denial of his motion for modification. The Court of Appeals affirmed the district court. State v. Smith, No. 65,813, unpublished opinion filed June 14, 1991, 814 P.2d 43. The mandate issued on November 6 1991. Defendant filed a second motion to modify, which the district court denied on the basis it lacked jurisdiction. Defendant appealed therefrom, contending that K.S.A.1992 Supp. 21-4603(4)(b) applied and that, accordingly, the district court had jurisdiction to modify his sentence for a 120-day period following the issuance of the mandate in his first appeal. In rejecting this contention, we held:

"[D]efendant's first appeal was not a direct appeal of his conviction, but was an appeal from the denial of his first motion to modify. Defendant is attempting to use the mandate affirming the denial of his first motion to modify to open the jurisdictional window under 21-4603(4)(b) for the filing of a second motion to modify. By this rationale, an unlimited number of motions to modify could be filed as long as each successive motion is filed within the 120-day window after receipt of the mandate affirming the trial court's denial of a defendant's...