State failed to preserve departure notice issue

Janine Cox won in State v. Washington, No. 103,850 (Kan. App. Feb. 11, 2011)(unpublished), affirming Judge Hampton's downward durational departure sentence in a Ford County possession case. Mr. Washington's presumptive prison sentence was between 28 and 32 months. In recognition of time spent in jail that would not otherwise be credited, Judge Hampton, on his own motion, imposed a downward durational departure to 23 months. The state appealed. [Really? Over five months?]

  

The COA affirmed. The state's main claim on appeal was that it did not receive notice of Judge Hampton's intent to depart. The COA held that, while the notice was not reasonable, the state had failed to preserve the issue:

However, as noted by Washington, the State did not object to the lack of notice at the sentencing hearing. Generally, "where a defendant fails to object to the notice of departure at the time of sentencing, any issue relative to the departure is not preserved for appeal." In the instant case, the State did not object to the lack of notice after the court pronounced the sentence, requested a continuance, or made a proffer of the evidence that would have been presented to refute the departure factors. Accordingly . . . we find that the issue has not been preserved for appeal.

So, procedural default works both ways after all!

[Update: the state did not file a PR and the mandate issued on March 18, 2011.]