State v. WilsonState v. Wilson
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Defendant appeals from jury convictions of burglary (
Dеfendant claims error in the inclusion of an Alien-type instruction (PIK Crim. 68.12) among the instructions given prior to jury deliberation. There was no trial objection. The question is whether the giving of the instruction was clearly erroneous. Kiser v. Gilmore, 2 Kan. App. 2d 683, 691, 587 P.2d 911 (1978), rev. denied 225 Kan. 844 (1979). Although there аre old and recent cases finding error in the giving of an Allen-type instruction after jury deliberation has begun, e.g., State v. Bybee, 17 Kan. 462, 465 (1877); State v. Hammond, 4 Kan. App. 2d 643, 648, 609 P.2d 1171, rev. denied 228 Kan. 807 (1980), use of the instruction is not error per se. When it is included as one of the instructions given prior to jury deliberation, the inherent danger of coercion is dissipated if not lost. State v. Scruggs, 206 Kan. 423, 425-426, 479 P.2d 886 (1971). In this case, where defendant relies upon nothing of record other than the giving of the instruction, we cannot conclude there was clear error.
A two-fold attack is lodged by defendant against the severity of
Defendant’s complaint of noncompliance with
The essence of the second prong of defendant’s attack upon the sentences imposed is that under the evidence presented, it was improрer to sentence him as a third offender. We find merit in defendant’s position.
The sentences arise out of convictions on April 29, 1980, for burglary and felony theft committed December 10, 1979. They were enhanced under the habitual criminal act (
Our habitual criminal act (
“Every person convicted a second or more time of a felony . . . upon motion of the prosecuting attorney, may be by the trial judge sentenced to an increased punishment as follows:
“(1) If the defendant has previously been convicted of not more than one felony:
“(a) The court may fix a minimum sentence of nоt less than the least nor more than twice the greatest minimum sentence authorized . . . for the crime for which the defendant stands convicted; and
“(b) Such court may fix a maximum sentence of not less than the least nor more than twiсe the greatest maximum sentence provided . . . for such crime.
“(2) If the defendant has previously been convicted of two (2) or more felonies: “(a) The court may fix a minimum sentence of not less than the least nor
more than thrеe times the greatest minimum sentence authorized . . . for the crime for which the defendant stands convicted; and
“(b) Such court may fix a maximum sentence of not less than the least nor more than three times the greatest maximum sentence provided . . . for such crime.”
As long ago as 1870, our Supreme Court held in regard to the application of a statute prescribing the sentence for “any person convicted of . . . [a] second or subsequent offense” (G.S. 1868, ch. 35, § 3, p. 400) that “[b]efore a person can make himself liable to be convicted of a second offense, as such, he must previously have been [convicted] of the first offense.” State v. Volmer, 6 Kan. *379, *383 (1870).
Over a century later,
State v. Lohrbach,
217 Kan. 588, 538 P.2d 678 (1975), was decided. There, as disclosed by the opinion, the record on appeal and the appellate briefs, the defendant’s sentences for convictions on July 11, 1973, of three felony offenses committed April 11, 1973, were enhanced upon evidеnce of convictions on November 23, 1965, in four cases charging a total of seven felony offenses — two committed April 3, 1965, and apparently growing out of a single act; two committed April 23,
Each of the four cases in which Lohrbach was convicted on November 23, 1965, concerned offеnses growing out of separate single acts. Consonant with the statement in State v. Murray, 200 Kan. 526, 530, 437 P.2d 816 (1968), that because two offenses grow out of a single act the actor has not become an habitual offender, the seven convictions werе treated as four convictions obtained on the same date.
Aside from resolution of an evidentiary issue, the essential holding in
Lohrbach
is that multiple convictions obtained on the same date can be used only as a single cоnviction for the purpose of sentence enhancement under
It is clear that for enhancement of sentence of a defendant as a second offender, the previous conviction must have occurred prior to commission of the principal offense. State v. Bell, 205 Kan. 380, 384-385, 469 P.2d 448 (1970). No Kansas authority precisely addresses the sequential relation of felony commissions and convictions required for the purpose of enhancemеnt of sentence of a defendant as a third offender.
In Lohrbach, 217 Kan. at 591, it is said:
“The basic philosophy underlying recidivist statutes might be expressed in this fashion: where the punishment imposed against an offender for violating the law has failed to deter him frоm further infractions, a harsher and more severe penalty is justified, the idea being, hopefully, that the greater punishment may serve as an object lesson and cause him to accomplish his reformation, where the lesser penalty had failed in that respect.
The following is in Murray, 200 Kan. at 530-531:
“The habitual criminal act was passed in the hope of bringing about a reformation of criminals by an increased penalty for a second offense and when that hope of reformation had passed then the increased punishment should be meted out for the third offense.
“[A] convict must be subject to sentence for a second felony conviction before he can be sentenced fоr a third felony conviction.”
Our case law has pronounced that where there are convictions for multiple offenses growing out of a single act or transaction, or where there are multiple convictions оbtained on the same date for offenses committed at different times or places, the multiple convictions can be used only as a single conviction for the purpose of sentence enhancement. Whеre both situations exist, as in
Lohrbach,
the rule is the same. The common denominator of these rules is that sentence enhancement requires conviction prior to
commission
of the subsequent offense, the requirement we have noted as legislatively and judicially made applicable to enhancement of sentence of a defendant as a second offender. Recognition of judicial expressions of the purpose, objective and рhilosophy of our habitual criminal statute,
Accordingly, we conclude and hold that for the enhancement of the sentence of a defendant as a third offender under
The evidence in this case failed to establish that when the principal offenses were committed, defendant had previously been convicted of a felony offense committed after conviction of a previous felony offense. Defendant was erroneously sentenced. Defendant could have been sentenced оnly as a second offender.
We conclude this case must be remanded to the trial court for correction of the sentences by resentencing. When defendant appears for resentencing, the authority of thе trial court is limited.
“[T]he district court, in a proceeding to correct a void sentence which has been partially served, has no authority to receive additional evidence upon which to base a new sentеnce. When the defendant appears before the court for resentencing the authority of the trial court is limited to a consideration of the identical facts and conditions existing at the time of the imposition of the original sentence.” Bridges v. State, 197 Kan. 704, 706, 421 P.2d 45 (1966).
The journal entry reciting imposition of an enhanced sentence must “contain a statement of each of [the] previous convictions, showing the date, in what court, of what crime and a briеf statement of the evidence relied upon by the court in finding such previous convictions.”
Convictions affirmed. Sentences vacated and set aside. Case remanded to trial court for resentencing.