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Kansas Supreme Court Nixes Probation After Full Sentence of Confinement Served

by Edward B. Lyon

The Kansas Supreme Court held that under the Kansas Sentencing Guidelines Act (“KSGA”) probation cannot be imposed after the full sentence of confinement has already been served.

James Kinder served as the caretaker for Joyce Wilson. He failed to obtain necessary medical treatment for her, and as a result, he was charged with mistreatment of a dependent adult. He pleaded no contest. He had no prior convictions or adjudications, so his criminal history score was category I, which resulted in a presumptive sentence of seven to nine months’ imprisonment and 18 months’ probation.

By the time of the sentencing hearing, Kinder had been held in custody on the charge for 360 days. The State asked the district court to impose the standard presumptive sentence of nine months’ imprisonment and 18 months’ probation. The State conceded that he should receive 360 days of jail time credit. Kinder’s lawyer objected to any probation, arguing that “he’s maxed out his sentence,” i.e., he had already been confined for a longer term than the maximum period provided for in the KSGA. The court imposed the sentence requested by the State, and Kinder appealed.

The Kansas Supreme Court framed the issue before it as follows: whether “[t]he district court erred in imposing probation when the underlying sentence of confinement already had been served.” The Court ruled improper the lower court’s imposition of probation after Kinder’s full term of imprisonment had already been served.

After reviewing the use of the terms “probation” and “parole” in the KSGA, the Court determined that “neither ‘probation’ nor ‘parole’ as defined by the KSGA would allow for imposition in Kinder’s situation, i.e., when his sentence of confinement has already been completed.” Similarly, the Supreme Court’s previous decision in State v. Carr, 53 P.3d 843 (2002), explained that “[p]robation and parole are dispositions alternate to the serving of a sentence, and neither probation nor parole increase or decrease the sentence required to be imposed by statute.” Serving a sentence in prison is exchanged for probation; it is a substitute for incarceration.

Kinder’s sentence of confinement had already been fully served, so there was no sentence to be suspended in exchange for probation, the Court reasoned. Accordingly, the Court concluded that probation cannot be imposed upon Kinder because his full sentence of confinement had already been served. See: State v. Kinder, 408 P.3d 114 (Kan. 2018).   

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Related legal case

State v. Kinder



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