Thomas motion in Kansas

2025See State v. Moore, 309 Kan. 825 , 828, 441 P.3d 22 (2019); State v. Theis, 262 Kan. 4, 7 , 936 P.2d 710 (1997) (The right to jail time credit is statutory.).

2025See State v. Moore, 309 Kan. 825 , 828, 441 P.3d 22 (2019); State v. Theis, 262 Kan. 4, 7 , 936 P.2d 710 (1997) (The right to jail time credit is statutory.).

2016Under K.S.A. 22-3504(1), a "court may correct an illegal sentence at any time." Our Supreme Court has defined "illegal sentence" under K.S.A. 22-3504 as: "'(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. [Citations omitted.]'" State v. Moncla, 301 Kan. 549, 551 , 343 P.3d 1161 (2015).

2016Under K.S.A. 22-3504(1), a "court may correct an illegal sentence at any time." Our Supreme Court has defined "illegal sentence" under K.S.A. 22-3504 as: "'(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. [Citations omitted.]'" State v. Moncla, 301 Kan. 549, 551 , 343 P.3d 1161 (2015).

2016Dickeys holding means what it says Dickey’s holding that “a defendant’s stipulation or failure to object at sentencing will prevent the defendant from later challenging the existence of convictions listed in his or her criminal history” is not mere dicta—that language made a distinction necessary to the issue being decided in Dickey and was the resolution of the court’s extensive analysis of its prior cases applying the invited error doctrine. 301 Kan. at 1032 .

2016Cf. Whisler v. State, 272 Kan. 864 , 36 P.3d 290 (2001) (direct appeal final prior to Apprendi decision, so Apprendi was not retroactively applied).

2016Cf. Whisler v. State, 272 Kan. 864 , 36 P.3d 290 (2001) (direct appeal final prior to Apprendi decision, so Apprendi was not retroactively applied).

2015But, relying on United States v. Patane, 542 U.S. 630 , 124 S. Ct. 2620 , 159 L.

2015But, relying on United States v. Patane, 542 U.S. 630 , 124 S. Ct. 2620 , 159 L.

2011Cf. In re K.M.H., 285 Kan. 53, 82 , 169 P.3d 1025 (2007), cert. denied ___ U.S. ___, 129 S.Ct. 36 , 172 L.Ed.2d 239 (2008) (a specific statute controls over a general statute).

2011Cf. In re K.M.H., 285 Kan. 53, 82 , 169 P.3d 1025 (2007), cert. denied ___ U.S. ___, 129 S.Ct. 36 , 172 L.Ed.2d 239 (2008) (a specific statute controls over a general statute).

2011Cf. In re K.M.H., 285 Kan. 53, 82 , 169 P.3d 1025 (2007), cert. denied ___ U.S. ___, 129 S.Ct. 36 , 172 L.Ed.2d 239 (2008) (a specific statute controls over a general statute).

2010Moreover, just like the Thomas defendant, defendant Robison “[c]onceding that he did not make the argument before the district court and recognizing the general rule that constitutional issues cannot be asserted for the first time on appeal, State v. Ortega-Cadelan, 287 Kan. 157 , Syl. ¶ 1, 194 P.3d 1195 (2008), [defendant] urges application of one of the exceptions that recognize *54 circumstances when an issue can be advanced for the first time on appeal.

2010Moreover, just like the Thomas defendant, defendant Robison “[c]onceding that he did not make the argument before the district court and recognizing the general rule that constitutional issues cannot be asserted for the first time on appeal, State v. Ortega-Cadelan, 287 Kan. 157 , Syl. ¶ 1, 194 P.3d 1195 (2008), [defendant] urges application of one of the exceptions that recognize *54 circumstances when an issue can be advanced for the first time on appeal.

2010The exceptions were identified in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81 , 434 P.2d 858 (1967), and are: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent die denial of fundamental rights; and (3) the district court is right for the wrong reason. [Defendant] argues that his case falls within the first two Pierce exceptions because the constitutional issue involves a question of law and also relates to a fund

2010“The district court did not abuse its discretion by denying Thomas’ motion for a downward durational or dispositional departure sentence under K.S.A. 2006 Supp. 21-4643(d).” Thomas, 288 Kan. at 163-64 .

2010The exceptions were identified in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81 , 434 P.2d 858 (1967), and are: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent die denial of fundamental rights; and (3) the district court is right for the wrong reason. [Defendant] argues that his case falls within the first two Pierce exceptions because the constitutional issue involves a question of law and also relates to a fund

2010The exceptions were identified in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81 , 434 P.2d 858 (1967), and are: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent die denial of fundamental rights; and (3) the district court is right for the wrong reason. [Defendant] argues that his case falls within the first two Pierce exceptions because the constitutional issue involves a question of law and also relates to a fund

2007As characterized 2 months later in State v. Phinney, 280 Kan. 394, 400-01 , 122 P.3d 356 (2005), Bryant essentially held that McAdam did not apply retroactively, i.e., to those cases which were no longer direct appeals pending as of the date of the McAdam decision. *799 On November 9, 2005, the district court granted Thomas’s motion to docket his appeal out of time based upon Ortiz .

2007As characterized 2 months later in State v. Phinney, 280 Kan. 394, 400-01 , 122 P.3d 356 (2005), Bryant essentially held that McAdam did not apply retroactively, i.e., to those cases which were no longer direct appeals pending as of the date of the McAdam decision. *799 On November 9, 2005, the district court granted Thomas’s motion to docket his appeal out of time based upon Ortiz .

2007The opinion of the court was delivered by Nuss, J.: The State appeals the Court of Appeals’ order granting Thomas’ motion for summary disposition and remanding for re-sentencing pursuant to State v. McAdam, 277 Kan. 136 , 83 P.3d 161 (2004).

2007The opinion of the court was delivered by Nuss, J.: The State appeals the Court of Appeals’ order granting Thomas’ motion for summary disposition and remanding for re-sentencing pursuant to State v. McAdam, 277 Kan. 136 , 83 P.3d 161 (2004).

2007“The interpretation of a Supreme Court rule is a question of law over which this court has unlimited review. [Citation omitted.]” State v. Hoge, 283 Kan. 219, 221 , 150 P.3d 905 (2007).

2007“The interpretation of a Supreme Court rule is a question of law over which this court has unlimited review. [Citation omitted.]” State v. Hoge, 283 Kan. 219, 221 , 150 P.3d 905 (2007).

1999See Gibbons v. Brotherhood of Railway, Airline & Steamship Clerks, 227 Kan. 557 , 608 P.2d 1320 (1980); Reece Shirley & Rons Inc. v. Retail Store Employees Union & Local 782, 225 Kan. 470 , 592 P.2d 433 (1979).

1999See Gibbons v. Brotherhood of Railway, Airline & Steamship Clerks, 227 Kan. 557 , 608 P.2d 1320 (1980); Reece Shirley & Rons Inc. v. Retail Store Employees Union & Local 782, 225 Kan. 470 , 592 P.2d 433 (1979).

1995The third new witness, Tuggle, sent a letter to Thomas’ counsel (after Thomas’ motion for new trial had been filed) saying that Thomas was “convicted of a crime that he did not commit” and that Tuggle would “like to explain this to the court because I should have done this a long, long time ago.” Following a procedure similar to that described in State v. Dunn, 243 Kan. 414, 436 , 758 P.2d 718 (1988), the district court conducted an initial hearing on the motion for a new trial.

1995The third new witness, Tuggle, sent a letter to Thomas’ counsel (after Thomas’ motion for new trial had been filed) saying that Thomas was “convicted of a crime that he did not commit” and that Tuggle would “like to explain this to the court because I should have done this a long, long time ago.” Following a procedure similar to that described in State v. Dunn, 243 Kan. 414, 436 , 758 P.2d 718 (1988), the district court conducted an initial hearing on the motion for a new trial.

1988In Lowe v. State, 242 Kan. 64 , 744 P.2d 856 (1987), the Supreme Court held where a trial court granted a dismissal during an evening recess, double jeopardy prevented it from reinstating the charge before the trial resumed the next morning, even though the progress of the trial was unaffected, because the dismissal constituted an acquittal which barred any further proceedings aimed at resolving the factual question of the defendant’s guilt.

1988In Lowe v. State, 242 Kan. 64 , 744 P.2d 856 (1987), the Supreme Court held where a trial court granted a dismissal during an evening recess, double jeopardy prevented it from reinstating the charge before the trial resumed the next morning, even though the progress of the trial was unaffected, because the dismissal constituted an acquittal which barred any further proceedings aimed at resolving the factual question of the defendant’s guilt.