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State v. Anthony12/6/2002
Judgment of the district court is affirmed.
The district court dismissed for lack of jurisdiction Michael Anthony's motion to modify a sentence imposed for his third offense of driving under the influence (DUI). The Court of Appeals reversed and remanded for a determination on the merits of his motion in State v. Anthony, 30 Kan. App. 2d __, 42 P.3d 207 (2002). We granted the State's petition for review under K.S.A. 20-3018(b), since an earlier panel of the Court of Appeals appears to have reached dissimilar results with a similar issue. See State v. Smith, 26 Kan. App. 2d 272, 981 P.2d 1182, rev. denied 268 Kan. 854 (1999).
The sole issue on appeal is whether the district court has jurisdiction to modify a sentence once it has been legally imposed under the felony provisions of the DUI statute, K.S.A. 8-1567(f). We reverse.
FACTS
Anthony pled guilty to his third DUI offense, a nonperson felony, on October 27, 2000, and the district court imposed the maximum sentence of 12 months in the county jail. After Anthony served the mandatory minimum of 90 days, he filed a motion to modify and requested probation. The district court held it lacked jurisdiction to modify the sentence after imposition and denied the motion, apparently relying upon the rationale of Smith. Upon Anthony's appeal, a Court of Appeals panel different from Smith's reversed, albeit without expressly rejecting Smith.
DISCUSSION
The determination of whether the district court has jurisdiction to modify a sentence once it has been imposed under the DUI statute, K.S.A. 8-1567(f), requires not only our interpretation of that statute but also of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Statutory interpretation is a question of law, and this court's scope of review is unlimited. State v. Miller, 260 Kan. 892, 895, 926 P.2d 652 (1996).
The sentencing of a criminal defendant is strictly controlled by statute in Kansas. State v. Saft, 244 Kan. 517, 518, 769 P.2d 675 (1989). Kansas statutes have long vested district courts with considerable discretion in the sentencing of all criminal defendants, including DUI defendants. See, e.g., G.S. 1949, 66-2239 (1957 Supp.) ("Whenever any person has been guilty of a crime or offense upon verdict or plea . . . . The court may modify a sentence within sixty days after it is imposed.") (Emphasis added.) Since 1965, this considerable discretion has included the authority to modify a sentence within 120 days of imposition, also known as the 120-day callback. See K.S.A. 21-4603(d)(1). With the passage of the KSGA, however, much of this prior discretion was removed. In particular, the 120-day callback was eliminated for crimes committed after July 1, 1993. The replacement statute, K.S.A. 2001 Supp. 21-4603d, "makes no mention of and does not provide for sentence modification." Miller, 260 Kan. at 896.
In Miller, we held that the legislature's "elimination of the court's authority to modify was intentional." 260 Kan. at 897. Accordingly, in Miller we held that " hen a lawful sentence has been imposed under KSGA, the sentencing court has no jurisdiction to modify that sentence except to correct 'arithmetic or clerical errors' pursuant to K.S.A. 21-4721(i)." 260 Kan. at 900.
The Court of Appeals relied upon the Miller decision in Smith to hold the district court had no jurisdiction to modify a sentence after it had been imposed under K.S.A. 21-3705(b)(criminal deprivation of a motor vehicle, a nonperson felony). The court relied not only upon Miller's determination of a lack of jurisdiction to modify under the KSGA, but also the absence of modification authority in K.S.A. 21-3705:<
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