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State v. Spicer3/8/2002
harm to another need not be intentional, in the sense the offender intended physical contact with the other person but included accidental physical contact which harms the person, although the harm may not be intended. "Recklessness" does not transform aggravated battery from a general intent crime into a specific intent crime. Clearly, an instruction on the defense of voluntary intoxication was not warranted here. See Davis v. State, 522 A.2d 342, 344-45 (Del. Supr. 1987) (discussing, in depth, the court's earlier holding in Wyant v. State, 519 A.2d 649 [Del. Supr. 1986], which provided that voluntary intoxication is no defense to intentional or reckless conduct, unless the offense proscribed requires specific intent). This issue has no legal merit.
The Upward Departure Sentence
The defendant's final issue on appeal concerns the legality of his departure sentence. The district court ordered an upward durational departure sentence of 38 months for the base offense of aggravated battery, although 18 months is the standard sentence for the defendant's offense.
Based upon our Supreme Court's ruling in State v. Gould, 271 Kan. ___, Syl. 3, 23 P.3d 801 (2001), the statutory scheme for imposing upward durational departures is unconstitutional on its face. Consequently, the imposition of an upward durational departure sentence was illegal.
The State argues this issue is moot because the sentencing court, on its own initiative, amended the journal entry to correct the illegal sentence.
A district court loses jurisdiction to hear any motions to modify a sentence when a timely notice of appeal has been filed. See State v. Williams, 235 Kan. 485, 495, 681 P.2d 660 (1984) (citing State v. Dedman, 230 Kan. 793, 640 P.2d 1266 , for the proposition that the proper procedure for correcting an illegal sentence following a notice of appeal is to await the mandate from the appellate court or to file a motion for the appellate court to issue a temporary remand for modification of the sentence).
The sentencing court properly followed the holding of our Supreme Court but was without jurisdiction to correct the sentence while an appeal was pending in this court. This issue is not moot, and the case must be remanded for resentencing.
We affirm the convictions, vacate the sentences, and remand for resentencing.
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