State v. Grimsley

15 Kan. App. 2d 441, 808 P.2d 1387 (1991)



Kan. Stat. Ann. § 21-4603(4)(a) (1990 Supp.) provides the trial court with discretionary authority to modify a sentence within 120 days of its imposition. To establish error, the defendant must show the trial court abused its discretion in refusing to modify the sentence. An abuse of discretion is shown only where no reasonable person would take the view adopted by the court. 


Defendant was given a suspended sentence of three years following his guilty plea to a charge of giving a worthless check pursuant to Kan. Stat. Ann. § 21-3707 (1990 Supp.) so long as he paid restitution. Six years later and with his probationary period extended, defendant was charged with and pled guilty to charges of indecent liberties with a child pursuant to Kan. Stat. Ann. § 21-3503(c) (1990 Supp.), causing the trial court to revoke his suspended sentence and sentencing him to consecutive terms for each crime committed.  The court held that Kan. Stat. Ann. § 21-4611 provided that the maximum period of suspension of sentence was not to exceed the greatest maximum term provided by law for the crime committed, which was five years for giving a worthless check pursuant to Kan. Stat. Ann. § 21-4501(e). Because the probation revocation had to have occurred during the probationary term, an unwaivable condition, defendant's agreement to extend probation had no legal effect.


Was the trial court without jurisdiction to either revoke probation or impose sentence where the probationary period exceed that allowed by law?




Grimsley could not agree to an illegal sentence. He could not by agreement create jurisdiction for the court to act beyond the period set forth in the statutes. His agreement to extend his probationary term beyond the maximum period allowed by law is a nullity. To say as the State does in this case that the court had jurisdiction to act because the defendant voluntarily submitted himself to the court's jurisdiction confuses subject matter jurisdiction with in personam jurisdiction. The substantive jurisdiction of the court, its power to adjudicate, cannot be created by waiver or consent; on the other hand, want of jurisdiction of the person or thing may be waived.

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