21-4721. Departure sentence subject to appeal; confinement or release of defendant pending review; scope of review; action by court; written opinion, when; summary disposition; correction of arithmeti
21-4721
21-4721. Departure sentence subject to appeal; confinement or release ofdefendant pending review; scope of review; action by court; written opinion,when; summary disposition; correction of arithmetic or clerical errors.(a) A departure sentence is subject to appeal by the defendantor the state. The appeal shall be to the appellate courts in accordance withrules adopted by the supreme court.
(b) Pending review of the sentence, the sentencing court or the appellatecourt may order the defendant confined or placed on conditional release,including bond.
(c) On appeal from a judgment or conviction entered for a felony committedon or after July 1, 1993, the appellate court shall not review:
(1) Any sentence that is within the presumptive sentence for the crime; or
(2) any sentence resulting from an agreement between the stateand thedefendant which the sentencing court approves on the record.
(d) In any appeal from a judgment of conviction imposing asentence thatdeparts from the presumptive sentence prescribed by thesentencing grid for a crime, sentence review shall be limited to whether thesentencing court'sfindings of fact and reasons justifying a departure:
(1) Are supported by the evidence in the record; and
(2) constitute substantial and compelling reasons for departure.
(e) In any appeal, the appellate court may review a claim that:
(1) A sentence that departs from the presumptive sentenceresulted from partiality, prejudice, oppression or corruptmotive;
(2) the sentencing court erred in either including or excludingrecognitionof a prior conviction or juvenile adjudication for criminal history scoringpurposes; or
(3) the sentencing court erred in ranking the crime severity level of thecurrent crime or in determining theappropriateclassification of a prior conviction or juvenile adjudication for criminalhistory purposes.
(f) The appellate court may reverse or affirm the sentence. Ifthe appellatecourt concludes that the trial court's factual findings are not supported byevidence in the record or do not establish substantial and compelling reasonsfor a departure, it shall remand the case to the trial court for resentencing.
(g) The appellate court shall issue a written opinion wheneverthe judgmentof the sentencing court is reversed. The court may issue a writtenopinion in anyother case when it is believed that awritten opinion willprovide guidance to sentencing judges and others in implementing the sentencingguidelines adopted by the Kansas sentencing commission. The appellate courtsmay provide by rule for summary disposition of cases arising under this sectionwhen no substantial question is presented by the appeal.
(h) A review under summary disposition shall be made solely uponthe recordthat was before the sentencing court. Written briefs shall not be requiredunless ordered by the appellate court andthe review and decision shall be made in an expedited manner according torules adopted by the supreme court.
(i) The sentencing court shall retain authority irrespective of any noticeof appeal for 90 days after entry of judgment of conviction to modify itsjudgment and sentence to correct any arithmetic or clerical errors.
History: L. 1992, ch. 239, § 21;L. 1995, ch. 251, § 17; July 1.