State v. Saft

• Decision Date: 03 March 1989
• Docket Number: No. 62261,62261
• Citation: 244 Kan. 517,769 P.2d 675
• Parties: STATE of Kansas, Appellee, v. Dan A. SAFT, Appellant.
• Court: Kansas Supreme Court

Page 675

769 P.2d 675

244 Kan. 517

STATE of Kansas, Appellee, v. Dan A. SAFT, Appellant.

No. 62261.

Supreme Court of Kansas.

March 3, 1989.

Syllabus by the Court

1. The sentencing of a criminal defendant is strictly controlled by statute in Kansas. The time limits of the statutes are jurisdictional. District courts do not have jurisdiction to modify a sentence pursuant to a motion filed after 120 days from the original imposition of sentence, barring those exceptions stated in K.S.A. 21-4603(3).

2. K.S.A. 60-1501 et seq. provide the procedures by which a defendant may attack the conditions of imprisonment. Conditions of imprisonment are not matters to be resolved by sentencing proceedings.

Martha J. Coffman, Asst. Appellate Defender, argued the cause and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.

Debra L. Barnett, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with her on the brief, for appellee.

HERD, Justice:

Dan Saft appeals the district court's holding that it lacked jurisdiction to modify his previously modified sentence.

Saft pled guilty to kidnapping, K.S.A. 21-3420, reduced from aggravated kidnapping, K.S.A. 21-3421; rape, K.S.A. 21-3502; and aggravated criminal sodomy, K.S.A. 21-3506. He was committed to Larned State Hospital for evaluation prior to sentencing. The presentence investigator recommended Saft be sentenced to 15 years to life on each charge, the sentences to run concurrently, and that probation be denied.

On April 22, 1985, the district court followed the investigator's recommendation and sentenced Saft to a controlling term of 15 years to life imprisonment. On July 10, 1985, Saft filed a timely motion to modify his sentence under K.S.A. 21-4603(3). On June 18, 1986, the court acted upon the motion by modifying Saft's sentence to 10 to 20 years on each charge, each sentence to run concurrently. The court had the power to grant probation, K.S.A. 21-4603(2)(c), or it could have reduced the minimum term to five years because the reduced charges were all class B felonies. K.S.A. 21-4501(b). In the exercise of its discretion, the district court chose to neither grant probation nor further reduce the sentence.

On October 2, 1986, Saft filed a second motion to modify his sentence. After hearing the court held it had no jurisdiction to entertain Saft's motion on the merits because it was filed outside the 120-day period allowed under K.S.A. 21-4603(3). Saft appeals.

The sole issue before us is whether a district court has jurisdiction to modify a sentence pursuant to a motion filed within 120 days from a modification of sentence, but outside the 120 days from the imposition of the original sentence.

The sentencing of a defendant is strictly controlled by statute in Kansas. State v. Osbey, 238 Kan. 280, 288, 710 P.2d 676 (1985). The court's authority to modify a sentence is found at K.S.A. 21-4603(3), which provides:

"Any time within 120 days after a sentence is imposed or within 120 days after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. 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 the court of appeals."

Saft contends the legislature's use of the term "within 120 days after a sentence is imposed" means that a defendant has 120 days after each modification to file for another modification. This procedure could presumably go on indefinitely so long as sentence modifications were granted.

The sentence modification statute has never been interpreted in this way. We have assumed district courts do not have jurisdiction to modify a sentence pursuant to a motion filed after 120 days from the original imposition of sentence, barring those exceptions stated in K.S.A. 21-4603(3). See State ex rel. Owens v. Hodge, 230 Kan. 804, 811, 641 P.2d 399 (1982); State v. Henning, 3 Kan.App.2d 607, 599 P.2d 318 (1979).

Saft argues the rule of liberal construction of sentencing statutes provided by K.S.A. 21-4601 favors his interpretation of the statute. The construction statute, however, only provides that the sentencing statutes shall be liberally construed "to the end that" defendants are dealt with in accordance with their individual characteristics. There is no evidence the statutes were not so construed by the sentencing court when it reduced Saft's original sentence pursuant to the first motion. The same statute provides "that dangerous offenders shall be correctively treated in custody for long terms as needed." The presentence evaluations found Saft to be a dangerous offender.

We have held K.S.A. 21-4601 requires K.S.A. 21-4603(3) be construed to allow a defendant the opportunity to have his sentence modified when his motion is timely filed. In State ex rel. Owens v. Hodge, 230 Kan. 804, 641 P.2d 399, we held the trial court retained jurisdiction over an original motion to reduce sentence filed within 120 days from the original sentence but not decided until after the 120 day period.

This construction is consistent with that of the federal courts. K.S.A. 21-4603(3) is based upon Rule 35(b) of the Federal Rules of Criminal Procedure before its most recent revision effective November 11, 1987. Fed.R.Crim.Proc. 35(b). Federal courts agreed that the time limits of former Rule 35(b) were jurisdictional. "[I]f the motion is untimely under the rule and the sentence is a lawful one, the court is powerless to act." 3 Wright, Federal Practice and Procedure: Crim. § 587 (1982). Wright states that a defendant does not gain an additional 120 days when the sentence is reduced on a timely motion.

In United States v. Rannazzisi, 443 F.Supp. 916 (S.D.N.Y.1978), the defendant pled guilty and was sentenced to 18 months in prison. This sentence was reduced within the 120-day period to one year. The defendant then filed a second motion for sentence modification outside the original 120-day period, arguing the same construction of the statute as Saft proposes. The court held it was without jurisdiction to consider the defendant's motion as the date of the original sentence imposed controlled the timeliness of the motion. The rule was intended to establish "clear lines of demarcation so that all concerned would know exactly when the time for filing would expire." United States v. Mehrtens, 494 F.2d 1172, 1175 (5th Cir.), cert. denied 419 U.S. 900, 95 S.Ct. 182, 42 L.Ed.2d 145 (1974). The 120-day time limit protects the courts from repeated motions by sentenced defendants and insures the responsibilities of the parole board are not usurped by courts retaining...