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KANSAS CRIMINAL CASES, 1/24/20. Wetrich and definition of dwelling.

Posted by Adam Stolte | Jan 24, 2020 | 0 Comments

KANSAS COURT OF APPEALS

No published cases

KANSAS SUPREME COURT

STATE V. WILLIAMS, No. 115119 Remanded with directions

Citing State v. Weber, 309 Kan. 1203, 1209 (2019), the Court noted that Wetrich was a change in the law as contemplated by Murdock II.

1. When appealing a conviction from a second trial after the first conviction was reversed on appeal, a defendant cannot raise for the first time an alleged statutory speedy trial violation that occurred during the first trial.

2. The revised Kansas Sentencing Guidelines Act uses prior out-of-state convictions when calculating an offender's criminal history score. Under the version of the Act effective at the time Williams was sentenced, an out-of-state conviction is classified as a person or nonperson offense by referring to comparable offenses under the Kansas criminal code. If the code does not have a comparable offense, the out-of-state conviction is classified as a nonperson crime.

3. A prior out-of-state conviction must have identical or narrower elements than a Kansas person crime to be scored as a person crime.

4. A defendant is entitled to the benefit of a change in the law while the defendant's direct appeal is pending.

5. Mississippi's offense of unnatural intercourse as stated in Miss. Code Ann. ┬ž 97- 29-59 (1972) is broader than Kansas' offense of aggravated criminal sodomy as stated in K.S.A. 2010 Supp. 21-3506. Thus, the offenses are not comparable.

STATE V. DOWNING, No. 116629, Further defining "dwelling."

In order for a building to be classified as a dwelling, there must be (1) proof the place burgled was used as a human habitation, home, or residence or (2) evidence that someone had a present, subjective intent at the time of the crime to use the place burgled for such purpose.

1. Under K.S.A. 2018 Supp. 21-5807(a)(1), burglary is, without authority, entering into or remaining within any dwelling, with intent to commit a felony, theft, or sexually motivated crime therein.

2. The term "dwelling" in K.S.A. 2018 Supp. 21-5807(a)(1) is defined in K.S.A. 2018 Supp. 21-5111(k) to mean "a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence."

3. Absent proof the place burgled was used as a human habitation, home, or residence when the crime occurred, a conviction for burglary under K.S.A. 2018 Supp. 21-5807(a)(1) requires a showing of proof that, someone had a present, subjective intent at the time of the crime to use the place burgled for such a purpose.

About the Author

Adam Stolte

Adam D. Stolte's journey toward becoming an attorney began when he was young. Growing up Adam always had a knack for problem-solving and researching solutions. It was this sense of curiosity and problem-solving that led to him becoming a cryptologic technician in the U.S. Navy. During his time in...

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