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STATE v. McNAUGHT1/17/1986
hin the statutory authority. State v. Freeman, 223 Kan. 362, 369, 574 P.2d 950 (1978). K.S.A. 1984 Supp. 21-4603(2) provides:
"(2) Whenever any person has been found guilty of a crime, the court may adjudge any of the following:
"(a) Commit the defendant to the custody of the secretary of corrections or, if confinement is for a term less than one year, to jail for the term provided by law;
"(b) impose the fine applicable to the offense;
"(c) release the defendant on probation subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
"(d) suspend the imposition of the sentence subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution; or
"(e) impose any appropriate combination of (a), (b), (c) and (d).
"In imposing a fine the court may authorize the payment thereof in installments. In releasing a defendant on probation the court shall direct that the defendant be under the supervision of a court services officer.
"The court in committing a defendant to the custody of the secretary of corrections shall fix a maximum term of confinement within the limits provided by law. In those cases where the law does not fix a maximum term of confinement for the crime for which the defendant was convicted, the court shall fix the maximum term of such confinement. In all cases where the defendant is committed to the custody of the secretary of corrections, the court shall fix the minimum term within the limits provided by law."
In State v. Chilcote, 7 Kan. App. 2d 685, 647 P.2d 1349, rev. denied 231 Kan. 801 (1982), the Kansas Court of Appeals addressed the same basic issue presented in this case and held that, under K.S.A. 21-4603(2), the trial court may not sentence a defendant to imprisonment in an institution and also require the defendant to pay restitution. In Chilcote, defendant argued that the trial court could not order restitution in conjunction with imprisonment and restitution may not be ordered unless the sentence is suspended pursuant to K.S.A. 21-4603(2)(d) or unless probation is granted pursuant to K.S.A. 21-4603(2)(c). The Court stated:
"In the instant case, the judge combined K.S.A. 21-4603(2)(a) (imprisonment) with an order of restitution; restitution may only be ordered pursuant to subsection (c) of that statute, which provides for release on probation subject to restitution, or subsection (d) thereof, providing for the suspension of sentence subject to restitution. Thus, the trial court has combined all of subsection (a) with only the restitution portion of either subsection (c) or (d). Said statute, at subsection (e), gives the trial court authority to `impose any appropriate combination of (a), (b), (c) and (d).' (Emphasis added.) Appellant points out that subsection (e) does not say `or any parts thereof,' and contends that the trial court therefore lacks authority to combine only parts of various subsections. We conclude that appellant is correct in this contention. In applying 21-4603(2)(e), a trial court may only impose sentences which are combinations of entire subsections. The use of the word `appropriate' implies that the combination of penalties
under the statute should be harmonious. Thus the trial court may not impose imprisonment, which mandates incarceration, with either probation or suspension of sentence, because to do so would be to decree mutually exclusive penalties. As we construe the statute, restitution may o
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