The court conducted a throrough analysis of the applicable statutes and held:
Based on the legislative history of Senate Bill 123, part of which became K.S.A. 21-4729 and K.S.A. 21-4603d(n), and the rules of statutory construction, we determine that the legislature intended for the drug abuse treatment sanction outlined in K.S.A. 21-4603d(n) and K.S.A. 21-4729 to trump the prison sanction outlined in K.S.A. 21-4603d(f)(3). Accordingly, we reverse Casey's sentence and remand for resentencing Casey to certified drug abuse treatment in accordance with K.S.A. 21-4603d(n) and K.S.A. 21-4729.The court also noted that other COA panels' opinions on this issue in State v. Andelt, 40 Kan. App. 2d 796, 798, 195 P.3d 1220 (2008) and State v. Andelt, No. 98,665, unpublished opinion (September 19, 2008) were recently taken up by the KSC. The Andelt cases have been consolidated and are scheduled for oral argument in the KSC on September 14, 2009. Thus, the KSC may have a decision on this issue in the next few months.
[Update: on August 18, 2009, the state filed an untimely PR with a motion to file instanter, which we were suprised to find that the KSC granted on September 18, 2009. In our experience, the KSC had been completely inflexible with the 30-day limit for filing a PR. On January 11, 2010, the KSC entered an order holding that it had improvidently granted the motion to allow the petition for review instanter, dismissing the state's PR as untimely and ordering immediate issuance of the mandate.]