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21-4643.

History: L. 2006, ch. 212, § 2; L. 2007, ch. 198, § 5; L. 2010, ch. 109, § 18; L. 2010, ch. 155, § 7; Repealed, L. 2011, ch. 30, § 288; July 1.

Attorney General's Opinions:

Criminal procedure; discussion of computation of jail credit earned and "sentence-begins" date. 2008-21.

CASE ANNOTATIONS

1. Cited; mandatory imprisonment for sex crime, mitigating circumstances insufficient for downward departure sentence. State v. Ortega-Cadelan, 287 Kan. 157, 158, 162, 164, 165, 194 P.3d 1195 (2008).

2. Denial of downward departure sentence upheld; principles relating to cruel or unusual punishment discussed. State v. Thomas, 288 Kan. 157, 199 P.3d 1265 (2009).

3. Conviction under K.S.A. 21-3504; mitigating circumstances permit downward departure from mandatory minimum imprisonment term set out in K.S.A. 21-4643. State v. Gracey, 288 Kan. 252, 200 P.3d 1275 (2009).

4. Trial court did not abuse discretion in not granting a downward departure sentence. State v. Spotts, 288 Kan. 650, 206 P.3d 510 (2009).

5. Conflicting statutory provisions prescribing different sentences for criminal offense, rule of leniency applicable. State v. Horn, 288 Kan. 690, 206 P.3d 526 (2009).

6. Sentence under K.S.A. 21-4643 is vacated; defendant's age not proven. State v. Bello, 289 Kan. 191, 211 P.3d 139 (2009).

7. Appellate court orders case remanded for further proceedings on motion to withdraw plea. State v. White, 289 Kan. 279, 211 P.3d 805 (2009).

8. Defendant's age must be proven in order to sentence for an off-grid severity level offense under K.S.A. 21-2643. State v. Gonzales, 289 Kan. 351, 212 P.3d 215 (2009).

9. Sentence under K.S.A. 21-4643 upheld even though state recommended downward durational departure; sentencing report affidavit cited. State v. Easterling, 289 Kan. 470, 213 P.3d 418 (2009).

10. When defendant is charged with off-grid severity level of rape under K.S.A. 21-3502(a)(2), age must be proven to jury. State v. Morningstar, 289 Kan. 488, 213 P.3d 1045 (2009).

11. "Prior conviction event" and "within a single count" in K.S.A. 21-4642 construed and applied. State v. Trautloff, 289 Kan. 793, 217 P.3d 15 (2009).

12. District court's denial of a downward dispositional departure to probation and imposition of lifetime supervision upheld. State v. Ballard, 289 Kan. 1000, 218 P.3d 432 (2009).

13. No abuse of discretion by the court in refusing to grant downward durational departure sentences; life sentences not cruel or unusual punishment. State v. Mondragon, 289 Kan. 1158, 220 P.3d 369 (2009).

14. District court within its discretion in imposing consecutive sentences. State v. McMullen, 290 Kan. 1, 221 P.3d 92 (2009).

15. No abuse of discretion in rejecting defendant's motion for departure sentence. State v. Trevino, 290 Kan. 317, 227 P.3d 951 (2010).

16. Two-step procedure in considering the mitigating circumstances followed; no abuse of discretion found in denial of departure sentence. State v. Robison, 290 Kan. 51, 222 P.3d 500 (2010).

17. Two consecutive hard 25 life sentences upheld. State v. Marler, 290 Kan. 119, 223 P.3d 804 (2010).

18. Convictions of rape and aggravated indecent liberties with a child not multiplicitous; off-grid sentences upheld. State v. Colston, 290 Kan. 952, 235 P.3d 1234 (2010).

19. Off-grid sentence upheld where there was uncontested evidence that defendant was more than 18 years of age. State v. Garza, 290 Kan. 1021, 236 P.3d 501 (2010).

20. Departure statute not violative of the U.S. Constitution 14 th Amendment or Kansas Constitution Bill of Rights, § 18. State v. Garza, 290 Kan. 1021, 236 P.3d 501 (2010).

21. District court's denial of defendant's motion for downward departure sentence held proper. State v. Plotner, 290 Kan. 774, 235 P.3d 417 (2010).

22. Hard 25 life sentences affirmed. State v. Reyna, 290 Kan. 666, 234 P.3d 761 (2010).

23. Imposition of enhanced sentence violated right to trial by jury where jury was not instructed to find defendant's age was over 18. State v. Huerta-Alvarez, 291 Kan. 247, 243 P.3d 326 (2010).

24. Defendant's age not presented to the jury as an element of crime; sentence vacated and remanded. State v. Brown, 291 Kan. 646, 244 P.3d 267 (2011).

25. Starting point in sentencing is mandated by the attempt statute; rule of lenity used to resolve statutory conflict in favor of defendant. State v. Malmstrom, 291 Kan. 876, 249 P.3d 1 (2011).

26. Departure sentence of 55 months affirmed. State v. Floyd, 291 Kan. 859, 249 P.3d 431 (2011).

27. District court failed to follow departure procedures; 300-month sentence vacated. State v. Jolly, 291 Kan. 842, 249 P.3d 421 (2011).

28. Judge may rely on the same findings to support a departure from the mandatory minimum of Jessica's Law and departure from the default prison sentence under sentencing guidelines; judge abused discretion in departure; case remanded for resentencing. State v. Spencer, 291 Kan. 796, 248 P.3d 256 (2011).

29. Defendant sentenced under Jessica's Law subject to a mandatory minimum term of imprisonment not less than 25 years, rather than 20 years as provided by the more general statutory provision for crimes other than murder. State v. Chavez, 292 Kan. 464, 254 P.3d 539 (2011).

30. Each mitigating factor listed in sentencing statute for aggravated criminal sodomy does not necessarily constitute a per se substantial and compelling reason for a departure sentence. State v. Whorton, 292 Kan. 472, 254 P.3d 1268 (2011).

31. Defendant's life sentence without parole eligibility for 25 years affirmed; parole condition of lifetime electronic monitoring vacated. State v. Mendoza, 292 Kan. 933, 258 P.3d 383 (2011).

32. Defendant's life sentence without parole eligibility for 25 years affirmed; parole condition of lifetime electronic monitoring vacated. State v. Pace, 292 Kan. 937, 258 P.3d 381 (2011).

33. Trial court's error in failing to instruct jury on element of defendant's age as required to prove the off-grid felonies of aggravated indecent liberties with a child and attempted aggravated indecent liberties with a child under Jessica's Law was harmless, as evidence that defendant was older than 18 at the time of the offenses was confirmed by several witnesses and uncontested. State v. Inkelaar, 293 Kan. 414, 264 P.3d 81 (2011).

34. Constitutional challenge to Jessica's Law was not made in the district court and will not be examined and ruled upon for the first time on appeal. State v. Jacobs, 293 Kan. 465, 263 P.3d 790 (2011).

35. District judge's failure to include in jury elements instruction defendant's age of 18 years of age or older at the time off-grid aggravated indecent liberties with a child was committed did not require vacation of Jessica's Law sentence and resentencing to a grid sentence, when defendant gave uncontested trial testimony about his age. State v. Chanthaseng, 293 Kan. 140, 261 P.3d 889 (2011).

36. Defendant convicted of three counts of aggravated indecent liberties with a child under the age of 14 years subject to lifetime parole rather than postrelease supervision, under parole eligibility statute requiring inmates sentenced under Jessica's Law to be placed on lifetime parole. State v. Cash, 293 Kan. 326, 263 P.3d 786 (2011).

37. District court's denial of defendant's departure motion affirmed. State v. Harsh, 293 Kan. 585, 265 P.3d 1161 (2011).

38. No abuse of discretion by the district court in denying the defendant's motion for departure sentence. State v. Hyche, 293 Kan. 602, 265 P.3d 1172 (2011).

39. A 120-month prison sentence is deemed illegal; the sentence vacated and the case remanded for resentencing. State v. Jones, 293 Kan. 757, 268 P.3d 491 (2012).

40. Defendant's life sentence upheld; the district court complied with its duty to review both the mitigating and aggravating circumstances. State v. Roberts, 293 Kan. 1093, 272 P.3d 24 (2012).

41. Sentencing court's departure from Jessica's Law failed to satisfy the statutory requirements; sentence vacated. State v. Gilliland, 294 Kan. 519, 276 P.3d 165 (2012).

42. Persistent sex offender statute allowing doubling of a maximum presumptive sentence cannot be applied to an off-grid Jessica's Law offense to double mandatory minimum of 25 years imprisonment. State v. Wilson, 294 Kan. 818, 280 P.3d 784 (2012).

43. Hard 25 life sentence for conviction for aggravated indecent liberties with a child is not categorically disproportionate and thus is not cruel and unusual punishment. State v. Frost, 48 Kan. App. 2d 332, 288 P.3d 151 (2012).

44. Hard 25-year sentence on the rape conviction affirmed. State v. Beaman, 295 Kan. 853, 286 P.3d 876 (2012).

45. Defendant's hard 25 life sentences for rape and aggravated criminal sodomy not unconstitutional. State v. Seward, 296 Kan. 979, 297 P.3d 272 (2013).

46. A single mitigating factor alone can constitute a substantial and compelling reason for departure. State v. Rochelle, 297 Kan. 32, 298 P.3d 293 (2013).

47. The sentencing judge relied on the wrong factors in ruling on the departure motion; sentence vacated. State v. Randolph, 297 Kan. 320, 301 P.3d 300 (2013).

48. Hard 25 sentence for aggravated indecent liberties with a child is not disproportionally harsh when compared with punishments imposed for homicide. State v. Boleyn, 297 Kan. 610, 303 P.3d 680 (2013).

49. A sentencing judge is not required to make specific findings in rejecting a motion for departure. State v. Dull, 298 Kan. 832, 317 P.3d 104 (2014).

50. In a Jessica's Law case, district court is not required to state its reasons for denying a departure sentence. Statute only requires the district court to state on the record the substantial and mitigating factors for a departure. State v. Walker, 50 Kan. App. 2d 900, 905, 334 P.3d 901 (2014).

51. Neither district nor appellate courts should weigh aggravating factors against mitigating factors in a Jessica's Law case; caselaw indicating they can be weighed against each other is disapproved of. State v. Jolly, 301 Kan. 313, 324, 342 P.3d 935 (2015).

52. Hard 25 sentence imposed under Jessica's Law does not constitute cruel or unusual punishment under the 8 th Amendment to the U.S. Constitution or section 9 of the bill of rights of the Constitution of the state of Kansas. State v. Swint, 302 Kan. 326, 341-49, 352 P.3d 1014 (2015).


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