Opinion
No. 107,678.
2014-11-14
STATE of Kansas, Appellee, v. Gregory J. FLOREZ, Appellant.
Appeal from Lyon District Court; Jeffry J. Larson, Judge.Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.Sarah E. Washburn, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; Jeffry J. Larson, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Sarah E. Washburn, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Following this court's memorandum opinion in State v. Florez, No. 107,678, 2013 WL 781133 (Kan.App.2013) (unpublished opinion), filed on March 1, 2013, Gregory J. Florez filed a petition for review. On October 20, 2014, our Supreme Court granted the petition for review and remanded this case to the Court of Appeals for reconsideration of Florez' challenge to his sentence in light of State v. Reese, 300 Kan. ––––, 333 P.3d 149 (2014). The only issue on appeal is whether the district court erred in denying Florez' motion to correct an illegal sentence. Resolution of the issue turns on whether the district court erred in failing to retroactively apply K.S.A.2011 Supp. 8–1567(j)(3) in calculating Florez' sentence following his conviction of driving under the influence of alcohol (DUI).
We will briefly review the facts. On April 24, 2010, Florez was stopped and arrested for DUI in violation of K.S.A.2009 Supp. 8–1567. On May 11, 2011, Florez pled no contest to the DUI charge. He was sentenced on July 13, 2011. Florez had at least three prior DUI convictions, all of which occurred before July 1, 2001, and the district court sentenced him based on the penalties applicable to felony DUI, fourth or subsequent offense. The district court did not address the amendment to K.S.A.2011 Supp. 8–1567(j)(3), which went into effect on July 1, 2011, and provided that “only convictions occurring on or after July 1, 2001, shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” L.2011, ch. 105, sec. 19.
After sentencing, Florez filed a motion to correct an illegal sentence, arguing that the district court should have applied the new look-back provision of K.S.A.2011 Supp. 8–1567(j)(3) and excluded for sentencing purposes his prior DUI convictions, all of which occurred before July 1, 2001. With no prior DUI convictions within the scope of the new look-back provision, Florez contended that he should have been sentenced as a first-time DUI offender. The district court denied the motion, finding that the new lookback provision—in effect at sentencing but not on the date of Florez' present DUI offense—did not apply retroactively. Florez timely appealed.
On appeal, Florez argued the new look-back provision was merely a procedural rather than a substantive amendment and thus should have been retroactively applied to his case. This court noted that another panel of our court had rejected a similar argument in State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012). Florez, 2013 WL 781133, at *1. In Reese, the defendant was arrested for DUI on July 3, 2009, but he was not convicted of the offense until June 6, 2011. His sentencing was held on August 10, 2011, and a presentence investigation report identified four prior DUI convictions, all prior to July 1, 2001. The district court sentenced the defendant as a fourth or subsequent DUI offender.
On appeal, the Reese court noted a fundamental rule of criminal procedure in Kansas is that a defendant is sentenced based on the law in effect when the crime was committed. 48 Kan.App.2d at 89, 283 P.3d 233. The Reese court also noted the fundamental rule that a statute operates prospectively unless either the language clearly indicates that the legislature intended the statute to apply retroactively or the change is procedural only and does not prejudicially affect the substantive rights of the parties. 48 Kan.App.2d at 89, 283 P.3d 233. Applying these fundamental rules to K.S.A.2011 Supp. 8–1567(j)(3), the Reese court concluded that the district court did not err in refusing to apply the new look-back provision in the amended statute to the defendant's case. 48 Kan.App.2d at 91, 283 P.3d 233.
Based on Reese, this court rejected Florez' argument that the new look-back provision should have been retroactively applied to his case. Florez, 2013 WL 781133, at *2. Accordingly, this court affirmed the district court's decision denying Florez' motion to correct an illegal sentence. 2013 WL 781133, at *2.
However, on August 29, 2014, our Supreme Court reversed this court's decision in Reese. In its analysis, the court examined the nature of the DUI statutory scheme, its historical development, and how prior offenses have historically been handled. Reese, 333 P.3d at 152. The court also examined the statutory language employed in K.S.A.2011 Supp. 8–1567(j). 333 P.3d at 153–54. Ultimately, our Supreme Court found that “the plain statutory language and the unique nature of the DUI sentencing scheme dictate that the number of prior DUI convictions applicable to the current DUI sentence is to be calculated at the time of sentencing on the current conviction.” 333 P.3d at 150. Our Supreme Court went on to hold that the provisions of K.S.A.2011 Supp. 8–1567(j)(3) apply to all persons who are sentenced for DUI on or after July 1, 2011, the effective date of the amended statute, even if the person committed the DUI before that date. 333 P.3d at 154.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The Kansas Supreme Court's decision in Reese controls the outcome of Florez' appeal. K.S.A.2011 Supp. 8–1567(j)(3) provides that the sentencing court is to take into account only those prior DUI convictions that occurred on or after July 1, 2001, and determine at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing a sentence enhancement. Reese, 333 P.3d at 154. Here, the district court sentenced Florez based on the penalties applicable to felony DUI, fourth or subsequent offense. But because all of Florez' prior DUI convictions occurred before July 1, 2001, the district court should have sentenced Florez as a first-time DUI offender.
An “illegal sentence” as contemplated by K.S.A. 22–3504(1), is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of authorized punishment; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). Florez received a sentence that did not conform with K.S.A.2011 Supp. 8–1567(j)(3); thus, the sentence was illegal. The district court erred in denying Florez' motion to correct an illegal sentence. Pursuant to Reese, he should be resentenced as a first-time offender under the amended DUI law.
Reversed and remanded with directions.