State v. Swindell, 122051

Swindell pleaded no contest to possession of methamphetamine and a presentence report assigned a criminal history score of B based on two 2013 attempted aggravated burglary convictions treated as person felonies.
With a CHS of B, the presumptive sentence was prison, but the district court granted a dispositional departure: 12 months' probation with a 36‑month underlying prison term and 12 months' postrelease supervision.
About a month later Swindell admitted probation violations; the court revoked probation and ordered him to serve the underlying sentence without imposing intermediate sanctions.
On appeal Swindell argued the two prior convictions should have been nonperson felonies (reducing his CHS to E), which would have made probation presumptive and required intermediate sanctions before revocation.
The State relied on timeliness/mootness and the contention that the CHS was correct; the court held the 2019 amendment to K.S.A. 22‑3504(a) limits correction of illegal sentences to while the defendant is serving the sentence and Swindell was no longer serving his sentence.
Conclusion: the court dismissed Swindell’s illegal‑sentence claim for lack of jurisdiction and affirmed the probation revocation and imposition of the underlying sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction to review alleged illegal sentence (CHS miscalculation)	Swindell: his CHS was miscalculated (should be E), so sentence was illegal and may be corrected at any time under K.S.A. 22‑3504(a)	State: appeal untimely; 2019 amendment restricts correction to while defendant is serving sentence; Swindell released so no jurisdiction	Court: Dismissed illegal‑sentence claim for lack of jurisdiction under amended K.S.A. 22‑3504(a) (defendant not serving sentence)
Validity of probation revocation without intermediate sanctions	Swindell: if CHS had been E, probation would be presumptive and revocation without intermediate sanctions was error/abuse of discretion	State: revocation proper because sentence was a dispositional departure which permits bypassing intermediate sanctions; also illegal‑sentence claim dismissed so no basis to overturn	Court: Affirmed revocation; no reversible abuse of discretion given dismissal of the underlying illegal‑sentence claim

State v. Smith, 304 Kan. 916, 377 P.3d 414 (2016) (timely notice of appeal is jurisdictional)
State v. Delacruz, 307 Kan. 523, 411 P.3d 1207 (2018) (appellate court must dismiss when record shows lack of jurisdiction)
Kaelter v. Sokol, 301 Kan. 247, 340 P.3d 1210 (2015) (right to appeal is statutory)
State v. Roat, 311 Kan. 581, 466 P.3d 439 (2020) (2019 amendment to K.S.A. 22‑3504 applies only when defendant had not filed a motion before amendment's operative date)
State v. Alvarez, 309 Kan. 203, 432 P.3d 1015 (2019) (principles of statutory interpretation and reviewing legislative intent)