State
v.
Lakin

Not overruled or negatively treated on appealinfoCoverage
Court of Appeals of Kansas.Oct 10, 2014
337 P.3d 72 (Kan. Ct. App. 2014)

No. 111,060.

2014-10-10

STATE of Kansas, Appellee, v. Payton LAKIN, Appellant.


Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before MALONE, C.J., GREEN and BUSER, JJ.

MEMORANDUM OPINION


PER CURIAM.

Payton Lakin appeals the district court's denial of his motion for jail time credit. Lakin filed a motion for summary disposition of this appeal. The State did not oppose the motion and our court granted it. Because we have no jurisdiction to consider Lakin's claim, we dismiss the appeal.

Factual and Procedural Background

Lakin pled guilty to eight violations of the Kansas Offender Registration Act. On March 6, 2009, the district court granted him a dispositional sentencing departure. As a result, Lakin was sentenced to 55 months' imprisonment but granted 36 months of probation under the supervision of community corrections. The district court awarded Lakin 1 day of credit for the time he spent in jail pending disposition of the case.

About 2 1/2 years later, on September 30, 2011, the district court revoked Lakin's probation and ordered him to serve a modified sentence of 40 months' imprisonment. At that time, the district court awarded Lakin 93 days of jail time credit: 1 day for the time he was in custody prior to the original sentencing and 92 days for the time he was in jail during the pendency of the probation violation hearing. Lakin did not appeal any of the district court's rulings.

Almost 10 months after the revocation of his probation and modification of his sentence, on July 20, 2012, Lakin filed a pro se motion seeking 941 days of jail time credit. In addition to the 93 days of credit previously granted by the district court, Lakin asserted he was entitled to an additional 848 days he spent on probation under supervision of community corrections.

The district court held a hearing on Lakin's motion on November 30, 2012. While Lakin's counsel noted that Kansas caselaw provided otherwise, he argued that Lakin was still entitled to the additional 848 days of jail time credit because community corrections supervision significantly restrained his liberty and was “akin to being in custody.”

The district court denied Lakin's motion, stating: “[D]uring the period of time that [Lakin] is requesting jail time credit, other than the 93 days, he was not incarcerated. Field services supervision is not the equivalent of incarceration. So for that reason, the motion is denied.”

Lakin appealed to our court.

Discussion

On appeal, Lakin contends the district court erred by failing to award him jail time credit “for the time he was under the control of the [S]tate while on probation and living at home.”

A defendant's right to jail time credit is statutory. State v. Hopkins, 295 Kan. 579, 581, 285 P.3d 1021 (2012). K.S.A.2011 Supp. 21–6615(a) entitles a defendant to credit for time “spent incarcerated” pending the disposition of his or her case, whereas, K.S.A.2011 Supp. 21–6615(b) entitles a defendant whose probation is revoked to credit for time “spent in a residential facility while on probation, assignment to a conservation camp or assignment to community correctional residential services program.” See State v. Palmer, 262 Kan. 745, 749, 753, 942 P.2d 19 (1997). Because resolution of this issue involves statutory interpretation of K.S.A.2011 Supp. 21–6615, we exercise de novo review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010); State v. Guzman, 279 Kan. 812, 813, 112 P.3d 120 (2005).

Before we address the merits of Lakin's argument, however, we must first address whether we have jurisdiction over Lakin's appeal. Although neither party questions this court's jurisdiction, it is our duty to raise the issue. See In re D.E.R., 290 Kan. 306, 307, 225 P.3d 1187 (2010). Whether jurisdiction exists is a question of law over which we exercise unlimited review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).

The right to appeal is purely statutory; therefore, Kansas appellate courts only have jurisdiction to consider appeals taken in the manner prescribed by statute. State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013). It is the established rule in this state that an appellate court has no jurisdiction to consider an appeal by a criminal defendant that was not filed within the time prescribed by the statute, since the timely filing of a notice of appeal is jurisdictional. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008). When the record discloses a lack of jurisdiction, it is our court's duty to dismiss the appeal. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).

Because judgment occurs at sentencing in criminal cases, the time for filing a notice of appeal runs from the court's oral pronouncement of the defendant's sentence. See State v. Ehrlich, 286 Kan. 923, 925, 189 P.3d 491 (2008). A district court's jail time credit determination is part of imposing the sentence because the sentence start date depends upon the amount of time awarded. State v. Muldrow, No. 107,291, 2013 WL 1149704, at *2 (Kan.App.2013) (unpublished opinion), rev. denied 297 Kan. 1253 (2013). Several panels of our court have determined that when the district court rules upon the issue of jail time credit at sentencing, we lack jurisdiction to consider a jail time credit challenge if the time for direct appeal has run because “defendants can only appeal the jail-time credit ... as a direct appeal of the sentence.” State v. Walker, No. 109,309, 2014 WL 902153, at *1, 3–5 (Kan.App.2014) (unpublished opinion), petition for rev. filed April 7, 2014; Muldrow, 2013 WL 1149704, at *2–3; State v. Olson, No. 102,226, 2010 WL 2978044, at *2–3 (Kan.App.2010) (unpublished opinion).

In this case, Lakin only had 14 days to appeal the computation of his jail time credit that occurred during the hearing on the revocation of probation and modification of his sentence. See K.S.A.2011 Supp. 21–6615; see L.2010, ch. 135, sec. 28; K.S.A.2011 Supp. 22–3608(c). It is undisputed that Lakin did not file an appeal seeking additional jail time credit during that 14–day time period. As a result of this failure, both the district court and our court have no jurisdiction over his claim. See Walker, 2014 WL 902153, at *1, 3–5; Muldrow, 2013 WL 1149704, at *3; Olson, 2010 WL 2978044, at *2–3.

It is worth noting, however, that even if we had jurisdiction to address Lakin's request for additional jail time credit, his claim would still fail on the merits. A defendant is only entitled to receive jail time credit, following a probation revocation, for any time the defendant “spent in a residential facility while on probation, assignment to a conservation camp or assignment to community correctional residential services program.” K.S.A.2011 Supp. 21–6615(b); see State v. Brasfield, 22 Kan.App.2d 623, Syl. ¶ 1, 921 P.2d 834 (1996) (“In order to be entitled to the jail time credit referred to in K.S.A. 21–4614a(a), a defendant must have resided in a facility which was owned, controlled, operated, maintained, or contracted for by a community corrections program which is operating under the Community Corrections Act, K.S.A. 75–5290 et seq. ). Compare State v. Brown, 38 Kan.App.2d 490, 167 P.3d 367 (2007) (defendant placed in halfway house could qualify for jail credit) with State v. Cordill, 24 Kan.App.2d 780, 781, 955 P.2d 633 (1997) ( “House arrest does not meet the requirements for a residential facility or a community correctional residential services program under 21–4614a.”).

Lakin did not spend time in any of these facilities; instead, as he acknowledges in his motion for summary disposition, he resided in his own home while he was under the supervision of community corrections. Accordingly, the district court did not err when it denied Lakin's motion for jail time credit because the time Lakin spent under the supervision of community corrections while on probation and living at home did not qualify for jail credit under K .S.A.2011 Supp. 21–6615.

Appeal dismissed.