947 P.2d 458 | Kan. Ct. App. | 1997
Jerry L. Loffer pled guilty to one count of nonsupport of a child. The district court sentenced Loffer to an indeterminate term of 1 to 2 years in prison, but granted Loffer’s motion for probation. The district court ordered as a condition of probation that Loffer pay restitution in the amount of $11,652. Loffer appeals.
Loffer s first argument on appeal is that the district court abused its discretion in determining the amount of restitution, because the district court included in the restitution figure child support that became due during time periods not covered by the complaint.
Resolution of this issue requires the court to interpret and apply the statutory provisions regarding restitution. Interpretation of a statute is a question of law, subject to unlimited review on appeal. State v. Turner, 22 Kan. App. 2d 564, 566, 919 P.2d 370 (1996).
K.S.A. 21-4603(b)(3) authorizes the sentencing court to release a convicted defendant on probation “subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution.” K.S.A. 21-4610(d) provides in part:
“In addition to other conditions of probation, . . . the court shall order the defendant to . . .
(1) Make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime; in an amount and manner determined by the court and to the person specified by the court, unless the court finds compelling circumstances which would render a plan of restitution unworkable.” ■
These statutoiy provisions for restitution were examined by the Supreme Court in State v. Ball, 255 Kan. 694, 877 P.2d 955 (1994). In Ball, the defendant had been charged with three counts of burglary and three counts of felony theft. Pursuant to a plea agreement, the defendant pled guilty to two counts of burglary and the State dismissed the other charges. The plea agreement further provided that there would be full restitution on all counts included in the original complaint. In accord with the plea agreement, the district court ordered restitution in the amount of $18,490.40.
Ball argued on appeal that the restitution order was contrary to the statutes. Based on its examination of the statutoiy language, the Supreme Court disagreed. The court contrasted the restitution statutes with K.S.A. 1992 Supp. 21-4603(2)(b), which provided that a court may impose a fine “applicable to the offense.” The court observed drat the legislature has not included such a limiting
Loffer argues that Ball applies only where the defendant has agreed to pay restitution for the dismissed charges. This argument was rejected in Turner. In that case, the defendant was initially charged with four counts of forgery. He pled guilty to two counts of forgery in exchange for the State’s dismissal of the remaining two counts. The district court entered a restitution order based on all four counts of forgery, and Turner appealed. This court affirmed the district court decision, concluding that K.S.A. 21-4610(d)(l) does not preclude the sentencing court from ordering restitution on crimes to which a defendant did not plead. Turner, 22 Kan. App. 2d at 567.
Loffer argues that the district court’s order in this case improperly required him to pay restitution in connection with crimes for which he was never charged. He contends that he was charged with the crime of nonsupport between July 15,1992, and February 28, 1994, but was not ever charged with criminal nonsupport for other periods of time. This argument is not persuasive.
While Ball left open the question whether a court’s restitution order can include restitution for crimes never charged, there appears to be no reason for the limitation urged by Loffer. As the Supreme Court noted in Ball, both 21-4603 and 21-4610 vest considerable discretion in the trial court to order restitution as it deems appropriate. Ball, 255 Kan. at 701. Practically speaking, as far as restitution is concerned there is little difference between crimes charged and later dismissed, and crimes which are never charged at all. In neither case has the State met its burden of proving guilt beyond a reasonable doubt.
In addition, the restitution order entered in this case is consistent with K.S.A. 21-4610(c)(8) and K.S.A. 21-4611. K.S.A. 21-4610(c)(8) authorizes a sentencing court to order, as a condition of probation, that a defendant support his dependents. It is notewor
For all these reasons, we conclude that the district court did not err in ordering restitution of $11,652. In a case where the defendant is convicted of criminal nonsupport, 21-4603 and 21-4610(d) do not prohibit a sentencing court from requiring, as a condition of probation, that the defendant pay child support which became due outside the time period alleged in the complaint.
Loffer’s second argument on appeal is that the district court erred by failing to sentence him under the Kansas Sentencing Guidelines Act. Loffer did not raise this, argument in the district court. Nevertheless, Loffer’s argument amounts to a claim that his sentence was illegal, and an illegal sentence may be corrected at any time. K.S.A. 22-3504(1). Whether the sentencing guidelines apply to a particular offense raises a question of law over which this court has unlimited review. See State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).
Loffer argues that the KSGA should apply to his case because his alleged criminal conduct continued after July 1, 1993. This argument is without merit. K.S.A. 21-4723 provides:
“Except as provided in K.S.A. 21-4724, the provisions of this act creating a presumptive sentencing guidelines system have no application to crimes committed prior to July 1, 1993. A crime is committed prior to July 1, 1993, if any of the essential elements of the crime as then defined occurred before July 1, 1993. Except as provided in K.S.A. 21-4724, prosecutions for prior crimes shall be governed, prosecuted and punished under the laws existing at the time such crimes were committed.”
Affirmed.
