Baker v. State

Malone, J.,

concurring: I respectfully concur with the result reached by the majority and with much of the reasoning stated in the majority opinion. However, I write separately to offer a different reason why the statute of limitations had not expired for Lynwood Baker’s K.S.A. 60-1507 motion. A K.S.A. 60-1507 motion can only be brought by a prisoner “in custody under sentence of a court.” K.S.A. 60-1507(a). Here, Baker was not in custody under the sentence of a court until he was resentenced on December 21, 2006.1 do not believe that Baker could have properly filed a K.S.A. 60-1507 motion prior to that date. Because Baker did not take an appeal following his resentencing, his 1-year time period for filing a K.S.A. 60-1507 motion began to run upon the termination of appellate jurisdiction, which in his case was 10 days following the date of resentencing. Thus, Baker’s K.S.A. 60-1507 motion filed on August 6, 2007, was timely.