Opinion
No. 110,565.
2014-10-31
STATE of Kansas, Appellee, v. Jason L. STRAND, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.Samuel Schirer, of Kansas Appellate Defender Office, for appellant.Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jason Strand pled guilty to two counts of aggravated battery and one count each of fleeing or attempting to elude a police officer, leaving the scene of an accident, driving under the influence, and driving with a suspended driver's license. He had previously pled guilty to felony theft in an unrelated case. Strand was sentenced in both cases on the same day.
The district court imposed a sentence of 38 months in the instant case to run consecutive to a 15–month sentence imposed in the unrelated case. The district court and the State both mistakenly believed the minimum fine for a second DUI was $1,750. At sentencing the district court said:
“I'm not an expert in DUIs. I'm going to impose what I believe should be the minimum fine for a second DUI. If counsel finds out that my amount of fine is in error, then I want the record to reflect that it is my intent to impose the minimum fine for a second DUI so that we can have it corrected by journal entry, if necessary nunc pro tunc.”
Additionally, the district court ordered Strand to a 12–month postrelease supervision period in each case and ordered those periods to run consecutively for a total of 24 months' postrelease supervision. The journal entry of sentencing in this case listed a fine for Strand's second DUI of $1,750. Strand now appeals.
On appeal, Strand claims the district court committed two errors during sentencing: (1) that while the district court intended to impose the minimum fine the court erred in its understanding of the proper amount of such a fine; and (2) that the district court erroneously aggregated Strand's postrelease supervision periods. Minimum Fine
Strand's first claim of error involves a question of statutory interpretation and our review is unlimited. State v. Ardry, 295 Kan. 733, 735, 286 P.3d 207 (2012). The parties agree that the district court intended to impose on Strand the minimum fine available for a second DUI conviction. Likewise, the parties agree that the proper minimum fine is $1,250. We agree. See K.S.A.2011 Supp. 8–1567(b)(1)(B).
The district court recognized its error here and attempted to correct it via an amended journal entry. However, K.S.A. 22–3504(2) only allows a district court to file an amended journal entry to correct clerical errors. Because the district court pronounced a fine of $1,750 at sentencing, we cannot characterize this as a clerical error. A sentence is effective when pronounced from the bench. A district judge has no jurisdiction to change a sentence once it is pronounced. State v. McDaniel, 292 Kan. 443, 445, 254 P.3d 534 (2011). When a journal entry is at odds with the sentence pronounced from the bench, it is erroneous and must be corrected to reflect the actual sentence imposed. State v. Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012). Hence, we vacate the portion of the journal entry listing the fine as $1,750 with directions that the district court file a journal entry with the correct minimum fine of $1,250 as the court originally intended. Aggregated Postrelease Supervision
Strand's second claim of error also involves a question of statutory interpretation and our review is unlimited. Ardry, 295 Kan. at 735. Strand argues the district court improperly aggregated his postrelease supervision periods. K.S.A.2011 Supp. 22–3717(d)(1)(F) states:
“In cases where sentences for crimes from more than one severity level have been imposed, the offender shall serve the longest period of postrelease supervision as provided by this section available for any crime upon which sentence was imposed irrespective of the severity level of the crime. Supervision periods will not aggregate.”
The State concedes that the district court's statement during sentencing that Strand's two 12–month periods of postrelease supervision would run consecutive to each other for “a total of 24 months postrelease supervision” was erroneous and contrary to K.S.A.2011 Supp. 22–3717(d)(1)(F). The State argues that remand is unnecessary as both the journal entry and the amended journal entry indicate a postrelease supervision period of 12 months. As stated above, however, a sentence is effective when pronounced from the bench; the pronounced sentence controls over the journal entry; and the district court has no jurisdiction to change the sentence once it is pronounced. When there is a conflict between the sentence pronounced from the bench and the journal entry, a court's oral pronouncements are controlling. State v. Brown, 298 Kan. 1040, 1057, 318 P.3d 1005(2014).
Therefore, because the district court erroneously sentenced Strand to aggregated postlease supervision periods, we reverse the district court's sentence of Strand to 24 months' postrelease supervision and remand to the district court with directions that he be sentenced to 12 months' postrelease supervision.
Reversed in part, vacated in part, and remanded with directions.