Esters v. State

571 P.2d 32, 1 Kan. App. 2d 503, 1977 Kan. App. LEXIS 195
CourtCourt of Appeals of Kansas
DecidedJuly 29, 1977
Docket48,848
StatusPublished
Cited by18 cases

This text of 571 P.2d 32 (Esters v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Esters v. State, 571 P.2d 32, 1 Kan. App. 2d 503, 1977 Kan. App. LEXIS 195 (kanctapp 1977).

Opinions

Swinehart, J.:

This appeal emanates from the August 14, 1976, fatal shooting of one Virgil E. Riley. Harry A. Esters, appellant, plead nolo contendere to a charge of involuntary manslaughter stemming from the slaying.

Following conviction on the plea, a presentence report was prepared which, we are told, was favorable to appellant. Because of the presentence report, appellant moved the trial court to suspend sentence or grant probation. The court denied appellant’s motion and imposed sentence of one to five years pursuant to K.S.A. 21-4501(e). Appellant immediately filed notice of appeal and orally moved for rehearing pursuant to K.S.A. 60-1507, which motion was denied. The court stayed execution on the sentence [504]*504pending the outcome of the appeal. Shortly thereafter, appellant filed a written motion for rehearing pursuant to K.S.A. 60-1507 which was denied. Appellant then filed an amended notice of appeal as to the court’s order on the 60-1507 motion.

Before getting to the merits of this appeal, it is necessary that we briefly consider the state’s contention that this court lacks jurisdiction because defendant was found guilty on a plea of nolo contendere. The state relies upon K.S.A. 22-3601 which provides that “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of . . . nolo contendere.” We have no jurisdiction on that part of this appeal pertaining to the conviction on the nolo contendere plea. (See Mayberry v. State, 213 Kan. 199, 515 P.2d 819.) Accordingly, that part of the appeal is dismissed.

However, the record indicates that following sentencing, defendant filed a motion collaterally attacking the sentence pursuant to K.S.A. 60-1507(a). That motion was denied. K.S.A. 60-1507(d) provides:

“Appeal. An appeal may be taken to the appellate court as provided by law from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.”

Also, K.S.A. 22-3601 provides immediately following the portion of that statute above-quoted:

. . Provided, Jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507.”

Thus, this court has appellate jurisdiction as to the lower court’s ruling on defendant’s 60-1507 motion, and it is upon that aspect of this appeal that we take jurisdiction.

Esters’ only complaint on this appeal relates to the lower court’s holding that K.S.A. 1976 Supp. 21-4618 prohibited the granting of probation or the suspending of sentence.

K.S.A. 1976 Supp. 21-4618 provides:

“Probation and sentencing for certain crimes involving use of firearms. Probation shall not be granted to any defendant who is convicted of the commission of any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act.”

There is no dispute as to whether or not this statute applies here. [505]*505The dispute centers around the meaning of the statute. Appellant maintains the statute only prohibits the granting of probation— not the suspension of sentence. The state, however, contends the statute prohibits both the granting of probation and the suspension of sentence.

The outcome of this appeal will turn on our construction of 21-4618. The rules of statutory construction in criminal cases were ably summarized in State v. Bishop, 215 Kan. 481, 483, 524 P.2d 712, where the court, relying on State, ex rel., v. American Savings Stamp Co., 194 Kan. 297, 398 P.2d 1011, said:

“ ‘It is a fundamental rule that penal statutes must be strictly construed in favor of the persons sought to be subjected to their operations. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.’ ”

Further, from United Parcel Service, Inc. v. Armold, 218 Kan. 102, 542 P.2d 694:

“In interpreting a statutory provision which is susceptible of more than one construction it must be given that construction which, when considered in its entirety, gives expression to its intent and purpose. . . .” (Syl. 2.)

Thus, while we are to strictly construe K.S.A. 1976 Supp. 21-4618 in favor of appellant, we are not to so stretch the statute’s language as to give it an inordinate meaning. If the statute is susceptible of more than one construction, we must give it that meaning which conforms with the legislative intent.

With these standards in hand, we now turn to the task of construing K.S.A. 1976 Supp. 21-4618. We first note that the statute specifically provides that probation “shall not be granted.” That language is clear and concise, and requires nothing further from us.

The statute also says that the “defendant shall be sentenced.” Appellant argues that this language does not prohibit a suspension of sentence because it does not specifically say that a suspended sentence shall not be allowed, as is the case with probation. We do not agree. “Suspension of sentence” is defined at K.S.A. 21-4602(2) as “a procedure under which a defendant ... is released by the court without imposition of sentence.” (Emphasis supplied.) 21-4618 requires that the defendant be sentenced. This requirement, by unavoidable implication, [506]*506prohibits suspension of sentence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

– State v. Smith –
456 P.3d 1004 (Supreme Court of Kansas, 2020)
State v. Garcia
763 P.2d 585 (Supreme Court of Kansas, 1988)
State v. Keeler
710 P.2d 1279 (Supreme Court of Kansas, 1985)
State v. Keeley
694 P.2d 422 (Supreme Court of Kansas, 1985)
State v. Fisher
658 P.2d 1021 (Supreme Court of Kansas, 1983)
State v. Johnson
634 P.2d 1137 (Court of Appeals of Kansas, 1981)
State v. Lottman
633 P.2d 1178 (Court of Appeals of Kansas, 1981)
State v. Conner
603 P.2d 1038 (Court of Appeals of Kansas, 1979)
State v. Thompson
596 P.2d 174 (Court of Appeals of Kansas, 1979)
State v. Rios
592 P.2d 467 (Supreme Court of Kansas, 1979)
State v. Davidson
581 P.2d 463 (Court of Appeals of Kansas, 1978)
State v. Coleman
580 P.2d 1329 (Supreme Court of Kansas, 1978)
State v. Mullins
577 P.2d 51 (Supreme Court of Kansas, 1978)
State v. Kleber
575 P.2d 900 (Court of Appeals of Kansas, 1978)
State v. Stuart and Jones
575 P.2d 559 (Supreme Court of Kansas, 1978)
Esters v. State
571 P.2d 32 (Court of Appeals of Kansas, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
571 P.2d 32, 1 Kan. App. 2d 503, 1977 Kan. App. LEXIS 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esters-v-state-kanctapp-1977.