State v. Shaffer

887 P.2d 1165, 20 Kan. App. 2d 347, 1995 Kan. App. LEXIS 5
CourtCourt of Appeals of Kansas
DecidedJanuary 6, 1995
DocketNo. 71,349
StatusPublished
Cited by2 cases

This text of 887 P.2d 1165 (State v. Shaffer) 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
State v. Shaffer, 887 P.2d 1165, 20 Kan. App. 2d 347, 1995 Kan. App. LEXIS 5 (kanctapp 1995).

Opinion

LEWIS, J.:

The defendant was charged with eight counts of theft. Theft is a class E felony and, upon conviction of theft, a defendant is subject to a minimum sentence of one year and a [348]*348maximum sentence of two to five years. Defendant pled guilty to each of the eight counts of theft and was sentenced to eight concurrent terms of one to five years on each count. Defendant was placed on five- years’ probation and ordered to make restitution to the City of Leavenworth in the amount of $152,681.50.

In 1990, the terms of probation were modified, and defendant was ordered to make payments of $250 per month on the restitution ordered. In November 1993, the State filed a motion to revoke defendant’s probation. At that time, defendant still owed restitution of $137,700. The trial court did not revoke defendant’s probation but, on December 10, 1993, extended the term of probation for an additional five years. Defendant appeals from the order extending the term of his probation.

Defendant was originally placed on five years’ probation on December 12, 1988. Prior to the expiration of the original .five-year term, the period of probation was extended for an additional five years. The question on appeal is whether the trial court had the authority to extend the length of defendant’s probation.

At the time defendant’s probation was extended, he still owed substantial restitution, and probation was extended to ensure that restitution would continue to be paid.

This is a case of first impression in Kansas and requires that we interpret the applicable provisions of K.S.A. 21-4611. That statute was amended in 1992 and 1993, but those amendments do not apply, and we interpret the statute as it read prior to that time.

The version of the statute pertinent to this appeal reads in part as follows:

“(1) The period of suspension of sentence, probation or assignment to community corrections fixed by the court shall not exceed five years in felony cases or two years in misdemeanor cases, subject to renewal and extension for additional fixed periods not exceeding five years in felony cases, nor two years in misdemeanor cases. In no event shall the total period of probation, suspension of sentence or assignment to community corrections for a felony exceed the greatest maximum terin provided by law for the crime . . . .” (Emphasis added.)

The trial court, in extending defendant’s probation, said:

“[K.S.A. 21-J4611 provides probation can be extended, if necessary, for the greatest amount, term provided by law, and the greatest maximum term provided [349]*349by law in this case would have been eight to forty, and I am going to extend Mr. Shaffer’s probation for another five years under the same terms and conditions, so we can get more restitution paid.”

It is obvious that defendant’s probation was extended to ensure that he would either pay back the money he owed to the City of Leavenworth or serve his prison term if he failed to do so. This, in our judgment, is an appropriate reason to extend probation. We must, however, determine if the trial court had the authority to extend defendant’s probation.

The decision is one of statutory interpretation and is a question of law. See State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). As a result, we are not bound by the decision of the trial court. See Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). It is a familiar requirement that “[w]hen 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.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).

As might be expected, the parties to this appeal hold radically different views as to what the statute provides. Defendant argues that the statute limits the term of probation to the maximum sentence actually imposed by the trial court. In this case, the maximum sentence imposed was five years, and under defendant’s interpretation, the overall period of probation could not exceed the maximum sentence imposed, or five years.

The State argues that the sentence imposed by the court is irrelevant to the overall question of how long probation may continue. It posits that probation may be extended to the maximum statutory term provided for the crimes charged. In this case, the maximum term for which defendant could have been sentenced for his eight convictions would have been eight consecutive terms of one to five years each, for a total effective sentence of 8 to 40 years. Thus, the total period of probation could extend to 40 years, and the extension imposed by the trial court is valid.

We agree with the State. The statute provides that the total period of probation for a felony shall not “exceed the greatest maximum term provided by law for the crime.” (Emphasis added.) [350]*350There is no suggestion that the term to which a defendant is sentenced has any relevance whatsoever to the maximum period of probation. If the legislature had intended to limit the overall term of probation to the “maximum term for which defendant was sentenced,” it could have easily so stated. Defendant’s argument is without merit.

The statute seems to us to be plain and unambiguous. It describes the limitation of the total period of probation as the “maximum term provided by law for the crime.” It is the legislature which sets the “maximum term” for the crime by fixing the statutory sentencing range. The greatest maximum term provided by law for the crime is determined by examining the statute and finding the maximum sentence which may be imposed upon conviction of that particular crime. We hold that the “greatest maximum term provided by law for the crime” means the maximum term to which a defendant can be sentenced upon conviction for a particular crime or series of crimes. In this case, the maximum term for which defendant could be sentenced for the crime of theft was two to five years. Thus, the greatest maximum term for theft is five years. The term to which defendant was actually sentenced is basically irrelevant to the determination of the maximum period probation may be extended.

This is a case in which defendant was charged with multiple counts of theft. It is also a case in which defendant pled guilty to eight counts of theft and was sentenced on eight counts of theft. While we have identified the “greatest maximum term provided by law,” we have not resolved all of the issues on this appeal. In this case, each separate conviction for the crime of theft carried with it a maximum term of five years. What was the maximum term of probation? Was it the maximum term for one count of theft, or is it permissible to aggregate all eight counts and conclude that the maximum term is 40 years?

Defendant argues that the statute applies to the information as a whole. The crime charged was theft, and the maximum term for theft was five years.

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Cite This Page — Counsel Stack

Bluebook (online)
887 P.2d 1165, 20 Kan. App. 2d 347, 1995 Kan. App. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shaffer-kanctapp-1995.