Ace Law

Please Note: ALTHOUGH tHE FOLLOWING KANSAS SUPREME AND APPELLATE COURT OPINIONS ARE RECENT HOLDINGS, THEY ARE NOT NECESSARILY CONTROLLING LAW. THEY ARE LISTED HERE MERELY TO GIVE THE READER AN IDEA OF HOW KANSAS COURTS HAVE RULED IN PAST DECISIONS. IT IS THEREFORE IMPORTANT THAT ONE NOT BASE FUTURE ACTION ON THE HOLDINGS IN THESE OPINIONS WITHOUT FIRST CONSULTING AN ATTORNEY DULY LICENSED IN YOUR JURISDICTION.

When conflict exists between two statutes, the sentencing guidelines level applicable for the lesser crime controls. Here, a conflict existed between the "Manufacturing Methamphetamine" statute and the "Compounding" statute thereby compelling the Trial Court to lower the sentence from that applicable to a Level 1 Drug Felony, which includes presumptive prison, to a Level 3 Drug Felony, which is typically presumptive probation and carries with it a substantially shorter controlling prison sentence. EXPECT THE KANSAS LEGISLATURE TO FIX THIS LOOPHOLE IN THE VERY NEAR FUTURE.

STATE V. MCCOIN, NO. 91,039 (Kan. Ct. App. 2004) Interpreting State v. McAdam, the Court held that the illegal sentencing argument made in McAdam (see ACELAW.NET's brief summary, supra) does not apply to plea agreements; further, that McAdam does not apply retroactively. The Kansas Supreme Court may not agree with this holding, and with several cases on the rocket docket in the Kansas Supreme Court, these two important issues will likely be clarified in the next few weeks.

STATE V. JOHNSON, NO. 89,477 (Kan. Ct. App. 2004) Not only is it improper for Defense Counsel to call the State's witness a liar, but Trial Error for the Court to overrule the State's objection to such nefarious behavior, which serves to compound the State's misconduct.

STATE v. WINTERS, NO. 87,695 (Kan. Sup. Ct. 2003) When the trial court fails to provide a jury instruction requested by defense counsel, such a failure to instruct should be objected to by the defense; when an objection is absent, the failure to so instruct must raise the real possibility of a different verdict had the instruction been provided to justify reversal by the appeals court. Also, the Court considered the impact of multiplicitous charges and accompanying jury instructions.

STATE v. ABBOTT, NO. 88,603 (Kan. Ct. App. 2003) To challenge the validity of a search and seizure on appeal, a defendant should object at the trial court level to provide the appellate court an adequate record to consider whether a Fourth Amendment violation occurred. Otherwise, a defendant must overcome a substantial burden to justify overturning a conviction based on search and seizure violations. The Court also considered criteria for confidential informant reliability and when warrantless searches are permissible.

STATE v. SPENCER, NO. 88,924 (Kan. Ct. App. 2003) Probation is a privilege, not a right. The Court has broad discretion in setting terms and conditions of probation. Further, subsequent to a plea of guilty, a defendant retains his fifth amendment privilege against self-incrimination.

STATE v. BELL, NO. 85,704 (Kan. Sup. Ct. 2002) This case was an appeal of an intentional second-degree murder conviction, which was upheld. As stated in the syllabus, the Court made several rulings: "(1) The trial court did not err in refusing to instruct on voluntary manslaughter/heat of passion and involuntary manslaughter / excessive force; (2) no abuse of judicial discretion is shown in the admission of autopsy photographs; (3) allowance of the late endorsement of a State witness was not an abuse of judicial discretion; and (4) the evidence is sufficient to support the conviction."

THIS SITE IS FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE A SOURCE OF LEGAL ADVICE AND A LAWYER/CLIENT RELATIONSHIP IS NOT IMPLIED HEREIN. MOREOVER, KEVIN M. SMITH IS LICENSED TO PRACTICE LAW IN THE STATE OF KANSAS AND THE INFORMATION CONTAINED HEREIN, UNLESS OTHERWISE NOTED, IS LIMITED IN SCOPE TO KANSAS LAW.


	Home \| About Kevin \| Services \| Legal Briefs \| FAQ's \| Contact Us