State v. ReedState v. Reed
- Reporters:
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- Before:
- Rees
Defendant Cleveland Reed, Jr. was sentenced to consecutive terms of imprisonment pursuant to
On December 1, 1982, Reed was charged with attempted burglary, a class E felony, in violation of
On September 12, 1983, Reed was charged with theft (
Reed entered pleas of guilty to all charges in both cases on October 18, 1983. The trial court sentenced Reed to a term of two-to-five years and a fine of $500 for the attempted burglary conviction (Case No. 82-CR-2031). For the burglary and theft *190convictions in the second case (Case No. 83-CR-1638), Reed was sentenced to two concurrent sentences of three-to-ten years, plus a fine of $1,000. The sentences in the two cases were ordered to run consecutively. Reed’s motion to modify sentence was overruled.
From a review of the transcript on the motion to modify sentence, it is clear the trial court believed
“Any person who is convicted and sentenced for a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated shall serve the term consecutively to the term or terms under which the person was released.” (Emphasis added.)
Reed committed his second and third felonies upon release on appearance bond prior to trial for the first felony pursuant to
It seems incongruous to say that the mere filing of a felony complaint plus release on bond for appearance at preliminary hearing made Reed a person “on release for a felony.” Moreover, until Reed was convicted, he could not have been released under a term or terms. Cf. State v. Holmes, 222 Kan. 212, 563 P.2d 480 (1977) (holding a person is considered to be convicted of a crime after adjudication of guilt).
The State concedes the statute is at least ambiguous and admits the legislature neglected to explicitly include Reed’s situation — release on bond prior to trial — in the statute’s operation. It argues, however, that the clear legislative intent was to punish with consecutive sentences those defendants who abuse any provisional freedom granted them to commit another crime. But although this may have been the legislature’s intent, it is patently not reflected in the statutory language. Penal statutes must be strictly construed in favor of the person sought to be subjected to their operation. State v. Dubish, 234 Kan. 708, 712, 675 P.2d 877 (1984); State, ex rel., v. American Savings Stamp Co., 194 Kan. 297, 300, 398 P.2d 1011 (1965). We accordingly hold that
We note our holding controls only the situation presented here and outlined above. Cf. State v. Ashley, 236 Kan. 551, 693 P.2d 1168 (1985); State v. Sayles, 10 Kan. App. 2d 180, 694 P. 2d 918 (1985).
We have examined Reed’s other contentions and find them to be without merit.
In summary, we conclude that this case must be remanded to the trial court for resentencing of the defendant. When the defendant is resentenced, our holding here does not affect the general sentencing discretion and authority granted to the trial court elsewhere in the statutes.
Reversed and remanded with directions to resentence Reed in accordance with this opinion.