State v. Wilson

Oct 23, 1981
52,243
Reporters:
,
Before:
Holmes

The opinion of the court was delivered by

Holmes, J.:

The Kansas Court of Appeals in this action stated:

“[F]or the enhancement of the sentence of a defendant as a third offender under K.S.A. 1980 Supp. ‍​‌‌‌‌‌‌​‌‌‌​‌​​​​​‌​​‌‌​‌‌‌​​‌​​​‌​‌​‌‌​​​​‌​​‌​​​​‌‌​​​​​‌‌​‌‌​​​​​​‌‌​​​‌‌​​​‌‌​‌‌​​​‌‌‌​‌​​​​‍21-4504(2), it is necessary that each succeeding offense be committed after conviction for the preceding offense. Otherwise stated, it is required that there be the commission and conviction of one offense, followed by the commission and conviction of a second offense, followed by commission of the principal offense upon conviction of which sentence enhancement is sought.” State v. Wilson, 6 Kan. App. 2d 302, 306, 627 P.2d ‍​‌‌‌‌‌‌​‌‌‌​‌​​​​​‌​​‌‌​‌‌‌​​‌​​​‌​‌​‌‌​​​​‌​​‌​​​​‌‌​​​​​‌‌​‌‌​​​​​​‌‌​​​‌‌​​​‌‌​‌‌​​​‌‌‌​‌​​​​‍1185 (1981).

A petition for review of that holding was filed by the State of Kansas and granted by this court. In addition to the facts as set forth in the opinion of the Court of Appeals, the parties have now stipulated to additional facts concerning the prior felony convictions which formed the basis for the sentencing of the defendant as a third offender under K.S.A. ‍​‌‌‌‌‌‌​‌‌‌​‌​​​​​‌​​‌‌​‌‌‌​​‌​​​‌​‌​‌‌​​​​‌​​‌​​​​‌‌​​​​​‌‌​‌‌​​​​​​‌‌​​​‌‌​​​‌‌​‌‌​​​‌‌‌​‌​​​​‍1980 Supp. 21-4504(2). The parties have stipulated in this court that the defendant was convicted on August 10, 1977, in Barton County for the felony theft of an automobile committed on May 29, 1977, and the defendant was convicted on December 20, 1977, in Ellsworth County for a forgery committed on May 29, 1977. We conclude that such additional facts, while informative, do ‍​‌‌‌‌‌‌​‌‌‌​‌​​​​​‌​​‌‌​‌‌‌​​‌​​​‌​‌​‌‌​​​​‌​​‌​​​​‌‌​​​​​‌‌​‌‌​​​​​​‌‌​​​‌‌​​​‌‌​‌‌​​​‌‌‌​‌​​​​‍not alter the result reached by the Court of Appeals.

After full consideration of the entire record, we conclude that the decision of the Court of Appeals is correct and we hereby adopt its opinion, modified only as affected by the additional facts stipulated to by the parties, as the opinion of this court.

The decision of the Court of Appeals in State v. Wilson, 6 Kan. App. ‍​‌‌‌‌‌‌​‌‌‌​‌​​​​​‌​​‌‌​‌‌‌​​‌​​​‌​‌​‌‌​​​​‌​​‌​​​​‌‌​​​​​‌‌​‌‌​​​​​​‌‌​​​‌‌​​​‌‌​‌‌​​​‌‌‌​‌​​​​‍2d 302, 627 P.2d 1185 (1981), is affirmed and the case is remanded to the district court for resentencing in accordance with the directions of the Court of Appeals.

Miller, J., not participating. McFarland, J., dissenting.