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STATE v. McNAUGHT1/17/1986
nly be ordered in conjunction with probation or suspended sentence. It follows that incarceration coupled with restitution is not an `appropriate combination' under subsection (e)." 7 Kan. App. 2d at 689-90.
The Court of Appeals remanded the case to the trial court with orders to vacate that part of the sentence requiring the defendant to make restitution.
The principles of law applied in State v. Chilcote are also applicable under the facts of this case. Here the maximum sentences of imprisonment and the maximum fines were imposed by the court. The court then, without placing the defendant on probation or suspending sentence, ordered restitution paid and, in addition, that defendant participate in a treatment program. The court also imposed other conditions which are usually imposed as conditions of probation. We hold that the trial court erred in ordering imprisonment, fines, restitution, and imposing the other conditions. Of course, should the trial court opt to resentence defendant within the time allowed for the revision of sentences, the court may cause the defendant to appear before it for resentencing. The trial court also has the authority to parole defendant from a portion of the sentence at some future date and impose appropriate conditions, including restitution. In view of our holding on this point, we do not consider it necessary to consider the other objections which defense counsel has raised in his brief pertaining to the conditions imposed in sentencing.
At the oral argument, counsel for defendant raised a point which had not been raised before the trial court and which had not been raised in his brief on appeal. That point was whether the employment of an associate prosecutor pursuant to K.S.A. 19-717 and selected by the victim's family, denied defendant due process of law. We decline to consider that issue, because it was neither timely raised nor presented to the trial court for its consideration.
The judgment of conviction is affirmed. That portion of the sentence imposing imprisonment and a fine on each count is affirmed. That portion of the sentence ordering restitution and imposing other conditions is vacated and set aside.
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