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January 5, 2018 Digests

Posted By Administration, Monday, January 8, 2018

Kansas Supreme Court

CRIMINAL

constitutional law—crimes and punishment—sentencing—statutes
state v. kinder
wyandotte district court—reversed; court of appeals—reversed
NO. 112,844—january 5, 2018

FACTS: Kinder entered no contest plea to one count of mistreatment of a dependent adult. District court imposed a presumptive 9-month sentence with 18-months’ probation, and awarded credit for 360 days of pretrial confinement. Kinder appealed, arguing probation was improper and violated Double Jeopardy Clause because he had already served his sentence of confinement. In unpublished opinion, Court of Appeals dismissed the appeal without addressing whether sentencing probation was error under Kansas Sentencing Guidelines Act (KSGA). Instead, the panel held there was no jurisdiction to review a presumptive sentence. Kinder’s petition for review granted.

ISSUE: KSGA Sentence of Probation

HELD: Panel’s dismissal of the appeal is reversed. Review is appropriate because Kinder is not actually challenging a presumptive sentence. District court erred in imposing probation. “Probation,” as defined by KSGA, cannot be imposed after the underlying full sentence of confinement has been served.

STATUTES:  K.S.A. 2016 Supp. 21-6603(e), -6603(g), -6615, -6803(q), -6804, -6804(a)(3), -6820(c)(1), 22-3716, -3716(c)(1)(B)-(E), -3716(c)(7), -3716(c)(11) -3717(d)(1)(C); K.S.A. 20-3018(b)

Kansas Court of Appeals

CIVIL

MOOTNESS—PROTECTION FROM STALKING
KERRY G. V. STACY C.
HARVEY DISTRICT COURT—REVERSED AND VACATED
NO. 117,070—JANUARY 5, 2018

FACTS: Kerry and Stacy were involved in a romantic relationship. After issues arose, Kerry reported Stacy to the police and filed a petition for a protection from abuse order against him. The district court entered a final PFA order against Stacy that was to be in place until October 13, 2016. Prior to the expiration of that PFA, Kerry filed a motion to extend the PFA for an additional year. The matter was never set for hearing, although both parties and their attorneys made appearances before the district court. But Stacy did not learn about the extended PFA until an order was served on him. He moved to dismiss the extension, claiming that the lack of notice and hearing violated his due process rights. The district court denied that motion, claiming that the district court could extend the PFA without notice or hearing. Stacy appealed.

ISSUES: (1) Mootness; (2) due process considerations in extending the PFA; (3) constitutionality of K.S.A. 2016 Supp. 60-3107(e)(1)

HELD: The PFA has already expired, meaning that Stacy cannot receive relief from the appellate court. But this issue is capable of repetition, and the issue is one of public importance. Because of that, the appeal is not moot. It is undisputed that the motion to extend the PFA was not served on Stacy or his attorney. The content of the motion did not provide any clue as to why Kerry believed extension of the PFA was necessary. Because the PFA was entered without any notice to Stacy it violated his due process rights. That order was vacated. K.S.A. 2016 Supp. 60-3107(e)(1) was not void for vagueness. The district court's grant of the PFA extension without exercising any discretion at all was an abuse.

STATUTES: K.S.A. 2016 Supp. 59-3073(a)(7), 60-205(a)(1)(D), -205(b)(1), -205(b)(2)(C), -206(b), -206(c), -207(b), -3104(a), -3104(d), -3105(a), -31a05(b), -3106(a), -3106(b), -3107(e); K.S.A. 53-601

Tags:  Harvey  Wyandotte 

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