Opinion
No. 108,775.
2013-07-12
STATE of Kansas, Appellee, v. James D. WHITE, Appellant.
Appeal from Douglas District Court; Barbara Kay Huff, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Barbara Kay Huff, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
James White pled no contest to his seventh DUI. The district court ordered White to pay the statutory mandatory fine of $2,500. However, White argues that the district court failed to consider community service as a method of payment of the fine. Because White could not complete his community service before the expiration of 1 year due to his incarceration, by operation of law, he could not perform community service to pay his fines. Therefore, we affirm the district court.
Factual and Procedural History
On May 21, 2009, while on probation, White was arrested for driving under the influence (“DUI”) in violation of K.S.A.2008 Supp. 8–1567(a)(3), (g). On January 9, 2012, White pled no contest to his seventh DUI in case number 2010–CR–443. On August 14, 2012, the district court sentenced White to 12 months in jail with a postrelease supervision term of 12 months and gave White jail time credit for 43 days. Additionally, the court assessed a fine of $2,500 pursuant to K.S.A.2008 Supp. 8–1567(g). On the same day, the district court revoked White's probation in case number 2006–CR–2052, sentenced White to the underlying 12–month jail term, and gave White jail time credit for 53 days. The district court then ordered the 12–month jail term imposed in each case to run consecutively.
Did the District Court Err in Failing to Consider Community Service as a Method of Payment of the Statutory Mandatory Fine?
White argues the district court was required to consider community service as a method of payment of the statutory fine imposed. The State maintains that the district court did not err because White could not complete community service within 1 year of sentencing as required by K.S.A.2008 Supp. 8–1567(j). Standard of Review and Analysis
Interpretation and application of a statute is a question of law over which this court exercises unlimited review. State v. Robinson, 281 Kan. 538, 539, 132 P.3d 934 (2006).
The statute in effect at the time of White's arrest for DUI and sentencing was K.S.A.2008 Supp. 8–1567, which provides in pertinent part:
“(g)(1) On the fourth or subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500....
....
“(j) In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court.”
White relies on State v. Copes, 290 Kan. 209, 223, 224 P.3d 571 (2008), where our Supreme Court held that a district court “must take into account the defendant's financial resources and the burden of the fine when considering the method of payment of a fine for a fourth or subsequent DUI offense, i.e., whether the defendant must pay a monetary fine or provide community service under K.S.A.2008 Supp. 8–1567(j).” 290 Kan. at 222–23. The court further explained that although the fine is mandatory, the method of payment requires consideration by the trial court as set forth at K.S.A. 21–4607(3).
Here, the district court correctly imposed the mandatory $2,500 fine, but the court failed to consider White's financial circumstances for the method of fine payment. See State v. Adam, No. 103,090, 2011 WL 867608, at *3 (Kan.App.2011) (unpublished opinion) (applying Copes to third DUI conviction), rev. denied 292 Kan. 966 (2011). By failing to consider White's ability to pay and the burden that payment would impose on him, the district court bypassed the statutory consideration of whether community service was the preferential option for repayment. See State v. Grebe, 46 Kan.App.2d 741, 743, 264 P.3d 511 (2011), rev. denied 294 Kan. –––– (2012); State v. Hausmann, No. 106,756, 2012 WL 1524491, at *1 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. –––– (2013).
The State argues, however, that because the court sentenced White to two 12–month jail terms and because the applicable statute requires any community service imposed to be performed within 1 year of imposition, the community service option was not available to White and need not have been considered by the district court. We agree.
Other panels of this court have accepted the State's argument as well. See Grebe, 46 Kan.App.2d at 744–45 (district court did not err by failing to consider community service alternative where defendant received a 53–month prison sentence); Hausmann, No. 106,756, 2012 WL 1524491, at *2 (district court did not err in imposing mandatory fine without considering community service because option not available to defendant who was sentenced to 1 year in jail and was being extradited to Missouri to serve a 1–year sentence); State v. Williams, No. 103,338, 2010 WL 5490740, at *1 (Kan.App.2010) (unpublished opinion) (district court committed harmless error by failing to consider community service as a possible method of payment when defendant was serving a 21–month prison sentence), rev. denied 291 Kan. 917 (2011). But see State v. Kent, No. 105,118, 2012 WL 308536, at *1 (Kan.App.2012) (unpublished opinion) (district court erred in not considering community service where defendant sentenced to 12 months in jail and might qualify for work release).
However, unlike Kent, here the district court specifically stated that White was not eligible for work release. Since White was not eligible for work release, there was no possibility he could complete community service within 1 year of sentencing because he was serving two 12–month jail terms minus 96 days in jail time credit.
The district court did not err by imposing the fine without consideration of a statutory option—community service—that was unavailable to White.
Affirmed.