Kansas Sentencing Guidelines apply only to felony convictions.
In Kansas, like most jurisdictions, crime are divided up between felonies and misdemeanors. There are also categories like traffic infractions, tobacco infractions and ordinance violations. However most things that an average person would consider a crime are either felonies or misdemeanors.
The distinction between felonies and misdemeanors used to be very simple: if the sentence was over a year and served in the penitentiary, it was a felony; if the sentence was less than a year and served in the county jail, it was a misdemeanor. Now there are felonies of less than a year and felonies served in the county jail. The only way to be certain is by checking the statute.
There are four types of felony convictions.
Felony convictions under the Kansas Sentencing Guidelines Act are divided up into four classes: Drug felonies, Non-drug felonies (further divided into person and non-person categories), Off grid felonies and Non-grid felonies.
Drug felonies are, not surprisingly, those related to the possession, use, manufacture or sale of illegal drugs. Off grid felonies are those with a life sentence, most commonly murder and certain child sex crimes. Non-grid felonies include felony domestic battery and felony DUI. Even though these are felonies the maximum sentence is one year in the county jail. The remainder fall within Non-drug felonies.
How do the guidelines affect a sentence?
Once a person is convicted of a felony, either by pleading guilty or being found guilty at trial, the judge will order a pre-sentence investigation and report from the probation office. This report will tell the judge the severity level of the crime, which grid it is on, drug or non-drug, and the defendant's criminal history.
The judge will look at the appropriate grid and find where the severity level and the criminal history intersect. This will lead him to the sentencing range box. This box will give him a range of months for the sentence. Usually this range is only a few months wide. The judge will then set a sentence within that range.
Does the judge have to sentence within this range?
No, the judge can "depart" from the presumptive range within the box. But in order for him to do so he must find a "substantial and compelling" reason. This means a specific fact which shows that this case is either worse than typical for this type of crime, justifying a longer sentence, or better than typical for this type of crime, justifying a shorter sentence.
As long as the judge stays in the box the sentence cannot be appealed. A conviction could be, but not the sentence. Judges typically do not depart, either shorter or longer, unless both the prosecution and the defense agree that he should. In order for a judge to depart upward to a longer sentence than contained in the box he must usually have a jury finding of the extraordinary fact justifying the longer sentence.
Do the guidelines affect probation?
Yes, the guidelines box will place the defendant in presumptive probation, presumptive prison or in a border box. Generally the judge will follow the presumption unless both the prosecution and the defense agree he should do something different. The decision about probation or prison cannot be appealed if the judge does not depart. If the defendant is in a border box the judge may place him on probation or in prison and neither side may appeal the placement.
There are "special rules" which could deprive a defendant of his presumption of probation and allow the judge to sentence him to prison. For example if the crime occurred while the defendant was already on probation or on bond for another crime. These special rules must be taken into consideration when determining what a judge might do at the time of sentencing.
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