Judgment and sentence; restitution; duties of court

22-3424. Judgment and sentence; restitution; duties of court. (a) The judgment shall be rendered and sentence imposed in open court. (b) If the verdict or finding is not guilty, judgment shall be rendered immediately and the defendant shall be discharged from custody and the obligation of the defendant's appearance bond. (c) If the verdict or finding is guilty, judgment shall be rendered and sentence pronounced without unreasonable delay, allowing adequate time for the filing and disposition of post-trial motions and for completion of such presentence investigation as the court may require. (d) (1) If the verdict or finding is guilty, upon request of the victim or the victim's family and before imposing sentence, the court shall hold a hearing to establish restitution. The defendant may waive the right to the hearing and accept the amount of restitution as established by the court. If the court orders restitution to be paid to the victim or the victim's family, the order shall be enforced as a judgment of restitution pursuant to K.S.A. 20-169, and amendments thereto, and K.S.A. 21-6604(b)(2), and amendments thereto. (2) (A) The court shall order a person convicted of human trafficking or aggravated human trafficking, K.S.A. 21-3446 or 21-3447, prior to their repeal, or K.S.A. 21-5426, and amendments thereto, or commercial sexual exploitation of a child, K.S.A. 21-6422, and amendments thereto, to pay restitution to the victim of the offense for: (i) Expenses incurred or reasonably certain to be incurred by the victim as a result of the offense, including reasonable attorney fees and costs; and (ii) an amount equal to three times the greatest of the following, with no reduction for expenses the defendant incurred to maintain the victim: (a) The gross income to the defendant for, or the value to the defendant of, the victim's labor or services or sexual activity; (b) the amount the defendant contracted to pay the victim; or (c) the value of the victim's labor or services or sexual activity, calculated under the minimum wage and overtime provisions of the federal fair labor standards act, 29 U.S.C. § 201 et seq., or under K.S.A. 44-1203, and amendments thereto, whichever is higher, even if the provisions do not apply to the victim's labor or services or sexual activity. (B) The court shall order restitution under subsection (d)(2) even if the victim is unavailable to accept payment of restitution. (C) If the victim does not claim restitution ordered under subsection (d)(2) for five years after entry of the order, the restitution must be paid to the human trafficking victim assistance fund created by K.S.A. 75-758, and amendments thereto, to help victims. (e) Before imposing sentence the court shall: (1) Allow the prosecuting attorney to address the court, if the prosecuting attorney so requests; (2) afford counsel an opportunity to speak on behalf of the defendant; (3) allow the victim or such members of the victim's family as the court deems appropriate to address the court, if the victim or the victim's family so requests; and (4) address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant's own behalf and to present any evidence in mitigation of punishment. (f) After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's right to appeal and of the right of a person who is unable to pay the costs of an appeal to appeal in forma pauperis. History: L. 1970, ch. 129, § 22-3424; L. 1991, ch. 90, § 2; L. 1993, ch. 166, § 4; L. 1993, ch. 291, § 273; L. 1995, ch. 257, § 3; L. 2015, ch. 94, § 4; L. 2022, ch. 31, § 3; July 1. Source or Prior Law: 62-1510, 62-1511, 62-1722, 63-310. Law Review and Bar Journal References: "Habeas Corpus in Kansas: How is the Great Writ Used Today?" Martha J. Coffman, 64 J.K.B.A. No. 1, 26, 28 (1995). Survey of Recent Cases, 43 K.L.R. 997, 998, 999 (1995). Attorney General's Opinions: Habitual violators; suspension date of drivers' licenses. 87-29. CASE ANNOTATIONS 1. Defendant sentenced in absentia did not waive right to be present at sentencing; subject to resentence. State v. Fennell, 218 Kan. 170, 176, 542 P.2d 686. 2. Not error for trial court to render judgment and sentence immediately after verdict; presentence report discretionary. State v. Foy, 224 Kan. 558, 568, 582 P.2d 281. 3. Despite subsection (3), deferred sentencing sanctioned by K.S.A. 22-3429 and 22-3430. State v. Smith, 3 Kan. App. 2d 179, 180, 591 P.2d 1098. 4. Appeal not timely filed under K.S.A. 22-3608 and 21-4603. State v. Moses, 227 Kan. 400, 401, 403, 607 P.2d 477. 5. Denial of K.S.A. 60-1507 motion; failure of trial court to advise defendant of right to appeal not constitutional error. Jones v. State, 3 Kan. App. 2d 578, 580, 601 P.2d 1135. 6. Failure to include statement of waiver of counsel under subsection (a) of K.S.A. 22-3426 held reversible error. State v. Andrews, 5 Kan. App. 2d 678, 681, 623 P.2d 534. 7. Cited in holding direct appeal from sentence following guilty plea permissible under code of criminal procedure. State v. Green, 233 Kan. 1007, 1010, 1011, 666 P.2d 716 (1983). 8. Sentence need merely be imposed without unreasonable delay; time frame of K.S.A. 22-3402(2) inapplicable. State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984). 9. Cited; where one convicted of crime has never been legally sentenced, proper sentence may be imposed later. State v. Osbey, 238 Kan. 280, 286, 288, 710 P.2d 676 (1985). 10. Right to allocution waived when defendant fails to raise issue of denial in motion to modify sentence. State v. Webb, 242 Kan. 519, 529, 748 P.2d 875 (1988). 11. Defendant has absolute statutory right to make a statement to the court during the proceeding known as allocution. State v. Wielgus, 14 Kan. App. 2d 145, 783 P.2d 1320 (1990). 12. K.S.A. 60-259 as applicable where motion to modify sentence constitutes motion to alter or amend noted. State v. Marks, 14 Kan. App. 2d 594, 597, 796 P.2d 174 (1990). 13. Court required to address defendant personally and ask if defendant wishes to make statement before sentence imposed; requirement in addition to K.S.A. 22-3422. State v. Heide, 249 Kan. 723, 727, 822 P.2d 59 (1991). 14. Period for timely filing notice of appeal from judgment of magistrate court (K.S.A. 22-3609a) examined. State v. Wilson, 15 Kan. App. 2d 308, 310, 808 P.2d 434 (1991). 15. Errors of nonprejudicial effect do not require reversal of conviction when substantial justice done. State v. Spencer, 252 Kan. 186, 190, 843 P.2d 236 (1992). 16. Whether appeal time commences when defendant is found not guilty or when journal entry filed examined. City of Wichita v. Brown, 253 Kan. 626, 627, 628, 861 P.2d 789 (1993). 17. Nunc pro tunc order sufficient to correct journal entry on restitution requirement at time of sentencing. State v. Tillman, 18 Kan. App. 2d 556, 557, 858 P.2d 1219 (1993). 18. Remanded for resentencing where district court failed to afford defendant opportunity to speak before sentencing for violating city ordinances. City of Overland Park v. Mann, 18 Kan. App. 2d 595, 856 P.2d 523 (1993). 19. Whether trial court's comment on defendant's silence at sentencing violated defendant's right to remain silent examined. State v. Green, 254 Kan. 669, 688, 867 P.2d 366 (1994). 20. Whether defendant waived allocution violation issue by failing to raise in motion to modify sentence examined. State v. Johnson, 255 Kan. 156, 157, 872 P.2d 247 (1994). 21. Whether court's failure to ask if defendant wanted to present evidence before sentencing harmless error examined. State v. Kendig, 19 Kan. App. 2d 128, 129, 132, 865 P.2d 218 (1994). 22. Whether court's rescheduling sentencing deprived defendant of the right to present mitigating evidence examined. State v. Borders, 255 Kan. 871, 875, 878, 879 P.2d 620 (1994). 23. Whether court's failure to ask defendant if he wanted to present mitigation evidence before sentencing requires remand examined. State v. Bafford, 255 Kan. 888, 889, 879 P.2d 613 (1994). 24. Whether court's failure to ask if defendant wanted to present mitigating evidence is harmless error examined. State v. Duke, 256 Kan. 703, 724, 887 P.2d 110 (1994). 25. Whether delay in sentencing caused by defendant's incarceration in another state was unreasonable examined. In re Habeas Corpus Application of Lancaster, 19 Kan. App. 2d 1033, 1034, 879 P.2d 1143 (1994). 26. Whether right of allocation may be waived by argument of counsel or defendant's silence examined. State v. Hunt, 257 Kan. 388, 404, 894 P.2d 178 (1995). 27. Defendant waives right to allocution if defendant files a motion to modify which fails to raise allocution issue. State v. Bowen, 259 Kan. 798, 800, 805, 810, 915 P.2d 120 (1996). 28. Defendant's failure to raise allocution issue in motion to modify sentence waives allocution right. State v. Moore, 260 Kan. 488, 489, 920 P.2d 431 (1996). 29. Defendant has no right to allocution at hearing on motion to modify sentence. State v. Lucas, 23 Kan. App. 2d 5, 6, 926 P.2d 242 (1996). 30. Failure of trial court to inform defendant of allocution right held harmless error. Soto v. State, 23 Kan. App. 2d 85, 90, 927 P.2d 954 (1996). 31. Defendant invited the court to sentence him without formal allocution; defendant cannot complain of the court's action on appeal. State v. Parker, 23 Kan. App. 2d 655, 659, 934 P.2d 987 (1997). 32. Failure to raise alleged allocution error in motion to modify sentence waived issue for later appeals. State v. Jones, 24 Kan. App. 2d 669, 676, 951 P.2d 1302 (1998). 33. Denial of motion to file untimely appeal reversed where defendant not advised of right to appeal. State v. Willingham, 266 Kan. 98, 100, 967 P.2d 1079 (1998). 34. McAdam, 277 Kan. 136, will not be applied retroactively but case returned to trial court for determination whether defendant was advised of right to appeal and ever requested appeal be filed. State v. Singleton, 33 Kan. App. 2d 478, 104 P.3d 424 (2005). 35. Defendant's direct appeal of sentence out of time properly before court. State v. Harp, 283 Kan. 740, 748, 156 P.3d 1268 (2007). 36. Section cited; defendant has a statutory right to counsel to seek Kansas supreme court review in criminal proceeding. Kargus v. State, 284 Kan. 625, 631, 632, 633, 640, 641, 162 P.3d 818 (2007). 37. Capital murder defendant is entitled to right of allocation before the sentencing court, not the sentencing jury. State v. Stallings, 284 Kan. 741, 742, 743, 163 P.3d 1232 (2007). 38. Defendant's rights to effective assistance of counsel in direct appeals and petition for review discussed. Kargus v. State, 284 Kan. 908, 169 P.3d 307 (2007). 39. Mentioned; no statutory requirement for court to advise K.S.A. 60-1507 petitioner of right to appeal. Guillary v. State, 285 Kan. 223, 170 P.3d 403 (2007). 40. Appeal rights hereunder discussed and applied. Casner v. State, 37 Kan. App. 2d 667, 674, 155 P.3d 1202 (2007). 41. Requirement that court to hold a hearing to establish restitution before sentencing held directory, not mandatory. State v. Bryant, 37 Kan. App. 2d 924, 925, 926, 163 P.3d 325 (2007). 42. Cited in case remanded for hearings on motion to withdraw plea and to appeal sentence out of time. State v. Hemphill, 286 Kan. 583, 588, 591, 592, 186 P.3d 777 (2008). 43. Cited in case where direct appeal filed out of time was permitted. State v. Scoville, 286 Kan. 800, 804, 805, 188 P.3d 959 (2008). 44. Cited; timely notice of criminal appeals; three Ortiz exceptions discussed and applied. State v. Patton, 287 Kan. 200, 219, 195 P.3d 753 (2008). 45. Failure to comply with K.S.A. 22-3422 results in error that is subject to a harmless error standard of review. State v. Valladarez, 288 Kan. 671, 206 P.3d 879 (2009). 46. Various fees discussed, no requirement that judge announce the order to pay fees in open court. State v. Phillips, 289 Kan. 28, 210 P.3d 93 (2009). 47. District court had jurisdiction to consider defendant's post sentencing objection to the amount of restitution. State v. Hall, 45 Kan. App. 2d 290, 247 P.3d 1050 (2011). 48. Restitution ordered exceeded the fair market value; restitution reversed and remanded. State v. Phillips, 45 Kan. App. 2d 788, 253 P.3d 372 (2011). 49. A district judge's failure to require that any hearing on the amount of restitution occur before sentencing does not deprive the court of jurisdiction. State v. McDaniel, 292 Kan. 443, 254 P.3d 534 (2011). 50. Statutory hearing requirement to establish restitution is directory and not mandatory. State v. Long, 294 Kan. 939, 281 P.3d 176 (2012). 51. A sentencing judge is not required to specifically advise a defendant of the right to appeal the severity level of the sentence. State v. Shelly, 49 Kan. App. 2d 942, 318 P.3d 666 (2014). 52. A convicted criminal defendant has the right to present any evidence in mitigation of punishment to the sentencing court. State v. Haney, 299 Kan. 256, 323 P.3d 164 (2014). 53. Provisions that allow judge instead of jury to determine damages caused by crime and convert such determination into a civil judgment for the victim are unconstitutional and severed. State v. Arnett, 314 Kan. 183, 194-195, 496 P.3d 928 (2021). 54. Current structure of criminal restitution violates section 5 of the Kansas constitution bill of rights; remedy is severance of problematic portions of statutes. State v. Robison, 314 Kan. 245, 256-257, 496 P.3d 89 (2021). 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