State v. Gilbert, 299 Kan. 797

In 1999 Terry L. Gilbert was convicted of first-degree felony murder and other offenses and sentenced to life; his direct appeal was affirmed in 2001.
At trial the court refused to give lesser-included-offense instructions on felony murder under the then-prevailing rule that such instructions were required only when evidence of the underlying felony was weak, inconclusive, or conflicting.
In 2011 this court in State v. Berry overruled that special felony-murder rule, holding K.S.A. 22-3414’s lesser-included-instruction standard applies to felony murder and applying the rule to all pending (not final) cases.
The legislature thereafter amended the statute (effective July 1, 2012) to state there are no lesser included offenses to felony murder.
Gilbert filed a pro se “Motion to Correct Illegal Sentence” in August 2012 arguing his sentence was illegal under Berry; the district court summarily denied the motion and Gilbert appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court erred by summarily denying Gilbert’s motion to correct an illegal sentence	Gilbert argued Berry rendered his sentence "illegal" because the trial court’s failure to give lesser-included instructions violated K.S.A. 22-3414(3) and an illegal sentence can be corrected at any time	State argued the claim attacks the conviction (not the sentence), Berry applies only to nonfinal cases, and Gilbert’s convictions were final before Berry	Court held the claim challenges the conviction, not the sentence, so K.S.A. 22-3504 is not the proper vehicle; summary denial was proper
Whether the district court should have construed Gilbert’s pro se motion as a K.S.A. 60-1507 motion	Gilbert argued the court should liberally construe his pleading as a 60-1507 motion and consider the manifest injustice exception to the 1-year filing limit	State noted the pleading was titled and argued as a motion to correct an illegal sentence and did not plead manifest injustice or facts supporting it	Court held the pleading’s content was clearly a motion to correct an illegal sentence, not a 60-1507 motion; Gilbert failed to allege manifest injustice, so recharacterization was unwarranted

State v. Berry, 292 Kan. 493 (overruled felony-murder exception to lesser-included instruction rule)
State v. Kelly, 291 Kan. 563 (pro se pleadings to be liberally construed based on content)
State v. Trotter, 296 Kan. 898 (motion to correct illegal sentence is not vehicle to attack conviction)
State v. Qualls, 297 Kan. 61 (remedy for failure to instruct on lesser-included offense is reversal of conviction)
State v. Holt, 298 Kan. 469 (definition and proof required to show manifest injustice under K.S.A. 60-1507)