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Probation is possible under original Jessica's Law

Sarah Morrison and I won in State v. Gracey, No. 99310 (Kan. Feb. 6, 2009), holding that Jessica's Law defendants are eligible for probation when their crime was committed before July 1, 2008. The court held, "[f]or defendants convicted of certain sexually motivated or sexually violent crimes committed before July 1, 2008, and sentenced pursuant to K.S.A. 21-4643(d), a departure sentence includes both durational and dispositional departures." The court reversed Gracey's sentence and remanded for resentencing consistent with the opinion.

The court also held that the 55-month sentence ordered at the original sentencing hearing was not illegal, even though the sentence was less than the presumptive range on the guidelines grid. So, for an off-grid Jessica's Law offense, the sentencing court can durationally depart to the KSG, and once on the grid, the court can depart below the presumptive grid box (as well as give probation if the offense was committed before July 1, 2008).

Full post as published by Kansas Defenders on February 11, 2009 (boomark / email).