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Keywords

jurisdictionappealmotionwill

jurisdictionstatuteappealmotionwill

Related Cases

Carmichael v. State, 255 Kan. 10, 872 P.2d 240

Facts

On September 27, 1985, a jury found Floyd Carmichael guilty of two counts of rape and one count of aggravated kidnapping, with the victim being his daughter. Carmichael filed a K.S.A. 60–1507 motion on July 22, 1991, alleging ineffective assistance of counsel and arguing that he was wrongly charged with rape instead of aggravated incest. The Court of Appeals reversed his rape convictions but affirmed the aggravated kidnapping conviction, leading to the Supreme Court's review.

On September 27, 1985, a jury found Carmichael guilty of two counts of rape and one count of aggravated kidnapping. The victim was his daughter.

Issue

Whether Carmichael's K.S.A. 60–1507 motion seeking to set aside his convictions of rape should have been granted pursuant to State v. Williams.

The issue is whether Carmichael's K.S.A. 60–1507 motion seeking to set aside his convictions of rape should have been granted pursuant to State v. Williams.

Rule

A sentence which does not conform to the statutory provisions, either in character or the term of the punishment authorized, is an illegal sentence. A prisoner asserting that the sentence is illegal may move the court to correct or vacate the sentence at any time.

1. A sentence which does not conform to the statutory provisions, either in character or the term of the punishment authorized, is an illegal sentence. 2. Where a prisoner asserts that his or her sentence is illegal, the prisoner may, at any time, pursuant to K.S.A. 60–1507, move the court that imposed the sentence to correct or vacate the sentence.

Analysis

The court determined that even though Carmichael was charged with rape, the evidence supported a charge of aggravated incest due to his relationship with the victim. The court emphasized that the district court had jurisdiction because the complaint alleged all essential elements of the offense charged. The court concluded that the proper remedy was to vacate the illegal sentence for rape and resentence Carmichael for aggravated incest.

The court's judgment of conviction found Carmichael guilty of raping his daughter. If one of the prohibited acts enumerated in the aggravated incest statute is committed by a person who is a biological, step, or adoptive relative of a child victim, that person must be charged with aggravated incest and not with a crime which is applicable to persons in general.

Conclusion

The Supreme Court affirmed in part and reversed in part the Court of Appeals' decision, vacating the sentences imposed for rape and remanding the case for resentencing for aggravated incest.

The judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed in part and reversed in part. The district court's order denying the petitioner's 60–1507 motion is reversed, the sentences imposed for rape are vacated, and the case is remanded to the district court with directions to resentence the petitioner in the original criminal case in conformity with this opinion.

Who won?

The State prevailed in part as the Supreme Court affirmed the jurisdiction of the district court and the need for resentencing for aggravated incest.

The Court of Appeals concluded that the district court lacked jurisdiction to convict Carmichael of rape of his daughter and reversed his rape convictions.

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Holeman v. City of New London, 425 F.3d 184

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U.S. v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657

Bergman v. United States, 474 U.S. 945, 106 S.Ct. 310 (Mem), 88 L.Ed.2d 287