Summary
In Wilson, the sentences arose out of convictions on April 29, 1980, for burglary and felony theft committed on December 10, 1979.
Summary of this case from State v. RinckOpinion
No. 52,243
Opinion filed October 23, 1981.
SYLLABUS BY THE COURT
CRIMINAL LAW — Sentencing — Habitual Criminal — Third Offense — Proof Required. Enhancement of the sentence of a defendant as a third offender under K.S.A. 1980 Supp. 21-4504(2) requires that each succeeding offense be committed after conviction for the preceding offense. ( State v. Wilson, 6 Kan. App. 2d 302, Syl. ¶ 1, 627 P.2d 1185.)
Review of the judgment of the Court of Appeals in 6 Kan. App. 2d 302, 627 P.2d 1185 (1981). Appeal from Sedgwick district court, division No. 2; RAY HODGE, judge. Judgment of the Court of Appeals affirming in part the district court and remanding for resentencing is affirmed and the case is remanded for resentencing. Opinion filed October 23, 1981.
Milo M. Unruh, Jr., of Arn, Mullins, Unruh, Kuhn Wilson, of Wichita, argued the cause and David Michael Rapp, of Moore Rapp, of Wichita, was with him on the briefs for appellant.
Jack Peggs, assistant district attorney, argued the cause and Robert T. Stephan, attorney general, Clark V. Owens, district attorney, Michael Barbara, assistant district attorney, and Jeff Brewer, legal intern, were with him on the briefs for appellee.
The opinion of the court was delivered by
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.