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|April 17, 2015, Appellate Court Digests|
Kansas Supreme Court – Criminal
CHEROKEE DISTRICT COURT – AFFIRMED
COURT OF APPEALS – AFFIRMED
NO. 105,504 – APRIL 17, 2015
FACTS: Jury convicted Overman of drug offenses arising from traffic stop and warrantless search of vehicle for drug evidence incident to his arrest for outstanding warrants and driving on a suspended license. In unpublished opinion, Court of Appeals affirmed in part and reversed in part. Overman’s petition granted to review the panel upholding: (1) district court’s denial of Overman’s motion to suppress on alternative ground of probable cause plus exigent circumstances, since district court’s reliance on search incident to arrest was negated by State v. Julian, 300 Kan. 690 (2014),and State v. Pettay, 299 Kan. 763 (2014); (2) district court’s ruling that convictions for separate offenses of possession of red phosphorous and iodine with intent to manufacture, and possession of drug paraphernalia with intent to manufacture, did not violate Double Jeopardy Clause; and (3) district court’s use of Overman’s prior convictions to enhance his sentence.
ISSUES: (1) Motion to suppress, (2) multiplicity - double jeopardy, and (3) sentencing
HELD: Under facts established by State and found by district court, the automobile exception applied in this case. District court’s denial of Overman’s motion to suppress is upheld as right for the wrong reason.
Precedent in State v. Schoonover, 281 Kan. 453 (2006), is applied. When there is clear legislative intent to provide multiple punishments for the same conduct, double jeopardy not violated even if overlapping statutory provisions have identical elements. Legislature intended separate punishments for violations of K.S.A. 2007 K.S.A. 2007 Supp. 65-7006(a) and K.S.A. 2007 Supp. 65-4132(a)(3).
Controlling Kansas precedent defeats Overman’s sentencing claim.
CONCURRENCE (Biles, J., joined by Nuss C.J.): Would affirm panel’s decision on search question because suppression issue not properly before the court for review. Overman’s petition did not challenge alternative rationale that search was lawful because of the automobile exception.
STATUTES: K.S.A. 21-3107; K.S.A. 33-2501, -2501(c); and K.S.A. 2007 Supp. 65-4150(c), -4150(c)(11), -4152, -4152(a), -4152(a)(2), -4152(a)(3), -4159, -4160(a), -4162(a)(3), -7006, -7006(a)
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