Apprendi DUI case

J. Patrick Lawless, Jr. (aka "the Chief") won in State v. Whillock, No. 97,244 (Kan. App. Sept. 7, 2007), reversing a Jefferson County enhanced DUI sentence. The sentence was enhanced (from 12 months to 13 months) based on a judicial finding that a child was in the car. Sounds like an Apprendi problem to me. And the COA agrees:

Under the facts of this case, the defendant neither stipulated to the presence of a child under the age of 14 in his vehicle, nor did he consent to the court finding such a fact. Because the fact of the child's presence in the vehicle was not proved to a jury beyond a reasonable doubt, the defendant's constitutional rights as recognized in Apprendi v. New Jersey, 530 U.S. 466 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), were violated when the trial court used that fact to increase the maximum 1-year sentence for a third driving while under the influence under K.S.A. 2006 Supp. 8-1567(f) by 30 days (1 month) in accordance with K.S.A. 2006 Supp. 8-1567(h).

It's good to get a case on this because it is difficult to get a ruling in a timely manner. Most of the time defendants have already served the sentence.

[Update: the state did not file a PR and the mandate issued on October 11, 2007.]