State v. Sylva, 64480
| Decision Date | 18 January 1991 |
| Docket Number | No. 64480,64480 |
| Citation | 248 Kan. 118,804 P.2d 967 |
| Parties | STATE of Kansas, Appellee, v. Stephen W. SYLVA, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Generally, a statute will operate prospectively unless it clearly indicates the contrary. Where a statute is merely procedural or remedial in nature, however, it may be applied retroactively if it does not affect the substantive rights of a party.
2. K.S.A.1989 Supp. 21-4603(3)(a) provides a district court "shall" modify a sentence if recommended to do so by the State Reception and Diagnostic Center unless the court finds the safety of the public will be jeopardized and the welfare of the inmate will not be served by such modification, whereas the previous version of the statute left modification entirely within the discretion of the district court. Such a change is substantive in nature and must be applied prospectively.
3. K.S.A.1989 Supp. 21-4606a expands presumptive sentences to include class D felonies or attempts to commit class D felonies unless the conviction is in violation of article 34, 35, or 36 of chapter 21 of the Kansas Statutes Annotated or a felony violation of K.S.A.1989 Supp. 65-4127b. The 1989 amendment is substantive in nature and must be applied prospectively.
4. The penalty for a criminal offense is the penalty provided by statute at the time of the commission of the offense.
Rick Kittel, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.
Rebecca D. Brock, Asst. Dist. Atty., argued the cause, and Paul J. Morrison, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief, for appellee.
Stephan W. Sylva entered guilty pleas to one count each of attempted sale of cocaine (K.S.A.1987 Supp. 65- 4107[b], K.S.A. 65-4127a, and K.S.A. 21-3301) and attempted sale of marijuana (K.S.A.1987 Supp. 65-4105[d], K.S.A. 65-4127b[b], and K.S.A. 21-3301). He received sentences of two years to five years on each count, said sentences to be served concurrently. The offenses are class D felonies and the concurrent two- to five-year sentences do not constitute the minimum authorized sentences herein as neither offense is one specified in articles 34, 35, or 36 of chapter 21 of the Kansas Statutes Annotated. The lowest sentences which could be imposed are one year to five years on each count. See K.S.A. 21-4501(d).
In this direct appeal from the trial court's denial of his motion to modify the sentences defendant contends he is entitled to probation as a matter of law pursuant to K.S.A.1989 Supp. 21-4603(3)(a) and K.S.A.1989 Supp. 21-4606a. The Court of Appeals affirmed the sentences on the grounds that both statutes operated prospectively, and defendant was properly sentenced under the law as it existed at the time of the commission of the offenses herein. State v. Sylva, 14 Kan.App.2d 609, 795 P.2d 947 (1990). The matter is before us on petition for review.
In State v. Hutchison, 228 Kan. 279, 615 P.2d 138 (1980), we set forth the rules of statutory construction pertinent herein as follows:
"The general rule of statutory construction is that a statute will operate prospectively unless its language clearly indicates that the legislature intended that it operate retrospectively." Syl. p 6.
"The foregoing rule of statutory construction is modified where the statutory change is merely procedural or remedial in nature and does not prejudicially affect the substantive rights of the parties." Syl. p 7.
"As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished." Syl. p 8.
The penalty for a criminal offense is the penalty provided by statute at the time of the commission of the offense. Kelsey v. State, 194 Kan. 668, 670, 400 P.2d 736 (1965).
We shall apply these rules to the two statutes before us.
K.S.A.1989 Supp. 21-4603(3)(a)
K.S.A.1989 Supp. 21-4603(3)(a) provides that at any time within 120 days of sentencing the district court shall modify a sentence imposed "if recommended by the state reception and diagnostic center unless the court finds that the safety of the public will be jeopardized and that the welfare of the inmate will not be served by such modification." K.S.A.1989 Supp. 21-4603 became effective July 1, 1989. The report filed by the State Reception and Diagnostic Center (SRDC) recommended Sylva "be considered a candidate for probation."
Prior to the 1989 amendment, K.S.A. 21-4603(3) provided that the court may modify a sentence. As amended, the court shall modify a sentence if recommended by the SRDC unless the court makes the required findings.
This issue is controlled by State v. Sutherland, 248 Kan. 96, 804 P.2d 970 (this day decided), wherein we held that K.S.A.1989 Supp. 21-4603(3)(a) made a substantive change in the law and is to be applied prospectively. Inasmuch as...
To continue reading
Request your trial
-
State v. Mayberry
...arguments are misplaced. Criminal statutes and penalties in effect at the time of the criminal offense are controlling. See State v. Sylva, 248 Kan. 118, Syl. p 4, 804 P.2d 967 (1991); State v. Ramos, 240 Kan. 485, 490, 731 P.2d 837 (1987); State v. Armstrong, 238 Kan. 559, 566, 712 P.2d 12......
-
State v. Ribadeneira
...The presumption of probation statute in effect at the time of these offenses was K.S.A.1985 Supp. 21-4606a. See State v. Sylva, 248 Kan. 118, 121, 804 P.2d 967 (1991). That statute provides that the presumptive sentence of a first time class E felon is probation. However, we have held that ......
-
State v. Keel
...sentencing rule that the penalty parameters for an offense are fixed on the date the offense was committed. See State v. Sylva, 248 Kan. 118, 120–21, 804 P.2d 967 (1991).In Williams, the defendant pled guilty in separate cases to two counts of identity theft committed in 2005 and 2006. Her ......
-
State v. Vasquez
...276 Kan. 164, 179, 72 P.3d 925 (2003), overruled in part by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 ; and State v. Sylva, 248 Kan. 118, 120–21, 804 P.2d 967 (1991), and did not rely on the recent statutory amendment. Keel, 302 Kan. at 589–91, 357 P.3d 251.Despite the fact that Vasquez......