Wednesday, February 11, 2009

Probation is possible under original Jessica's Law

Sarah Morrison and I won in State v. Gracey, No. 99310 (Kan. Feb. 6, 2009), holding that Jessica's Law defendants are eligible for probation when their crime was committed before July 1, 2008. The court held, "[f]or defendants convicted of certain sexually motivated or sexually violent crimes committed before July 1, 2008, and sentenced pursuant to K.S.A. 21-4643(d), a departure sentence includes both durational and dispositional departures." The court reversed Gracey's sentence and remanded for resentencing consistent with the opinion.

The court also held that the 55-month sentence ordered at the original sentencing hearing was not illegal, even though the sentence was less than the presumptive range on the guidelines grid. So, for an off-grid Jessica's Law offense, the sentencing court can durationally depart to the KSG, and once on the grid, the court can depart below the presumptive grid box (as well as give probation if the offense was committed before July 1, 2008).

1 comment:

Jennifer Roth said...

You probably already thought of this, but for what it is worth, when HB 2707 was being presented (the one that ultimately limited departures), KACDL argued that it was at odds with Jessica's Law. The bill's sponsor explicitly stated that Jessica's Law cases are Jessica's Law cases and other sex cases are other sex cases (not in those words but that was the idea). Thus it was my understanding that the bill's intent was not to apply the departure statute to Jessica's Law cases because Jessica's Law has its own departure provisions. I don't know if it is too late for future arguments on this point, but I throw that out there.