Wednesday, March 18, 2009

State didn't prove old burglary conviction was of a dwelling

Washburn student intern Stacey Schlimmer and I won in State v. Roose, No. 98,798 (Kan. App. March 13, 2009), reversing a Shawnee County criminal possession of a firearm conviction. The predicate offense was a 1978 burglary conviction. The COA held that the state had failed to prove that the building involved in the prior burglary was a "dwelling" as contemplated under today's burglary statute. If it wasn't a dwelling, it wasn't a person felony. And if it wasn't a person felony, Mr. Roose wasn't prohibited from possession a firearm. As a result, the COA reversed the conviction.

Interestingly, Judge Greene concurs and would have gone even further and held that because there was "no such animal" as a person felony before the guidelines, no pre-guidelines burglary conviction should be able to be counted as a person felony as an element of a crime. (He distinguishes the criminal history situation--which is covered by statute--from the situation where the state has to prove the element beyond a reasonable doubt).

[Update: the state did not file a PR and the mandate issued on April 16, 2009.]

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