Esters v. State , 1 Kan. App. 2d 503 ( 1977 )

Parks, J.,

dissenting. I respectfully dissent from that portion of the majority opinion which holds that K.S.A. 1976 Supp. 21-4618 prohibits a trial court from granting a suspended sentence as provided by K.S.A. 1976 Supp. 21-4603(2)(d).

K.S.A. 21-4602(2) defines “suspension of sentence” as a procedure under which a defendant, found guilty of a crime, upon verdict or plea, is released by the court without imposition of sentence. Subsection (3) defines “probation” as a procedure where the defendant is released by the court after imposition of sentence, without imprisonment, and subject to conditions imposed by the court. It is clear from the reading of this statute and K.S.A. 1976 Supp. 21-4603 that “suspension of sentence” and “probation” are separate and distinct procedures.

K.S.A. 1976 Supp. 21-4618 provides that “probation” shall not be granted to any defendant convicted of certain crimes where any firearm is used and that such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime.

It is interesting to note that when K.S.A. 21-4618 was enacted in 1976, the provisions of K.S.A. 21-4602 and 21-4603 had been in existence since 1969. The legislature was fully aware of the options available to the trial court in K.S.A. 21-4602 and 21-4603. If the legislature had intended to prohibit the suspension of sentence it would have included that term in K.S.A. 21-4618.

Whether K.S.A. 1976 Supp. 21-4618 is liberally construed or strictly construed, I am unable to agree that “suspension of sentence” can be read into and made a part of that statute.

In reviewing the legislative history of this statute we find that in the 1977 session, Senate Bill 347 was introduced and provided in part:

“K.S.A. 1976 Supp. 21-4618 is hereby amended to read as follows: 21-4618. Probation shall not be granted nor a suspended sentence allowed to any defendant who is convicted of the commission of . . (p. 3.)

The legislature thus had the opportunity to expressly include “suspension of sentence” in K.S.A. 21-4618, but in failing to pass the bill has not done so.

The supplemental information on Senate Bill 347, prepared by the Legislative Research Department, states: “SB 347 also would prohibit a suspended sentence for any defendant sentenced under the mandatory sentence provisions,” I am aware that bill briefs do not express legislative intent; however, I feel that such a statement serves to reinforce my view that as the statute is now written it does not prohibit a suspended sentence.

The historical background, legislative proceedings, and changes made in a proposed law during the course of its enactment may properly be considered by this court in determining legislative intent. (Urban Renewal Agency v. Decker, 197 Kan. 157, 415 P.2d 373.)

The rejection by the legislature of a specific provision is persuasive to the conclusion that the act should not be so construed as in effect to include that provision, at least where there is no basis for the assumption that the words omitted were surplusage. (City of Manhattan v. Eriksen, 204 Kan. 150, 154, 460 P.2d 622; Gilbertson v. McLean et al., 216 Ore. 629, 341 P.2d 139; and Builders Land Co. v. Martens, 255 Iowa 231, 122 N.W.2d 189.)

I would vacate the sentence and remand to enable the trial court to exercise its discretion.