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State v. Anthony12/6/2002
statute is specifically excluded from the KSGA under K.S.A. 21-4704(i). Under this argument, the alleged authority to modify DUI sentences imposed under K.S.A. 8-1567(f) must derive from that statute's own language: " he person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment."
In Smith, the Court of Appeals examined virtually identical language in the other statute then exempted under K.S.A. 21-4704(i). That language in 21-3705(b) provided: "The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served the minimum mandatory sentence as provided herein."
The Smith court expressly held, however, " he plain language of K.S.A. 21-3705 does not authorize the district court to modify a sentence." 26 Kan. App. 2d at 273. Rather, the language there "merely stated a defendant must serve the mandatory jail time before he or she is eligible for probation, suspension or reduction of his sentence, or parole." 26 Kan. App. 2d at 272-73. We agree with the Smith court's reading; nothing in the DUI statute authorizes the district court to modify a sentence. Without the authority granted by statute, the court has no ability to modify. In short, neither the present DUI statute nor the criminal deprivation of property statute at issue in Smith expressly states the district court's authority to modify sentences as did the former 21-4603(d). "'When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.'" Miller, 260 Kan. at 895 (quoting Martindale v. Tenney, 250 Kan. 621, Syl. 2, 829 P.2d 561 ).
Moreover, there is nothing in the legislative history and amendments to the KSGA in general or 21-4704(i) in particular which suggests the nongrid crimes of felony DUI and criminal deprivation of a motor vehicle were to be excluded from the KSGA for any issue other than length of sentence. This conclusion is consistent with the plain language of K.S.A. 1999 Supp. 21-4704(i):
"The sentence for the violation of the felony provision of K.S.A. 8-1567 . . . and amendments thereto shall be as provided by the specific mandatory sentencing requirements of that section and shall not be subject to the provisions of this section [21-4704, sentencing guidelines grid for non-drug crimes] or K.S.A. 21-4707 and amendments thereto [crime severity scale for non-drug crimes]." (Emphasis added.)
To hold otherwise is to usurp the authority, and disregard the intentional direction, of the legislature. We reverse the Court of Appeals and affirm the judgment of the district court dismissing Anthony's motion for lack of jurisdiction.
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