KANSAS COURT OF APPEALS

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KANSAS SUPREME COURT

STATE V. WILLIAMS, NO. 115119 REMANDED WITH DIRECTIONS

Citing State v. Weber, 309 Kan. 1203, 1209 (2019), the Court noted that Wetrich was a change in the law as contemplated by Murdock II.

1. When appealing a conviction from a second trial after the first conviction was reversed on appeal, a defendant cannot raise for the first time an alleged statutory speedy trial violation that occurred during the first trial.

2. The revised Kansas Sentencing Guidelines Act uses prior out-of-state convictions when calculating an offender's criminal history score. Under the version of the Act effective at the time Williams was sentenced, an out-of-state conviction is classified as a person or nonperson offense by referring to comparable offenses under the Kansas criminal code. If the code does not have a comparable offense, the out-of-state conviction is classified as a nonperson crime.

3. A prior out-of-state conviction must have identical or narrower elements than a Kansas person crime to be scored as a person crime.

4. A defendant is entitled to the benefit of a change in the law while the defendant's direct appeal is pending.

5. Mississippi's offense of unnatural intercourse as stated in Miss. Code Ann. § 97- 29-59 (1972) is broader than Kansas' offense of aggravated criminal sodomy as stated in K.S.A. 2010 Supp. 21-3506. Thus, the offenses are not comparable.

STATE V. DOWNING, NO. 116629, FURTHER DEFINING "DWELLING."

In order for a building to be classified as a dwelling, there must be (1) proof the place burgled was used as a human habitation, home, or residence or (2) evidence that someone had a present, subjective intent at the time of the crime to use the place burgled for such purpose.

1. Under K.S.A. 2018 Supp. 21-5807(a)(1), burglary is, without authority, entering into or remaining within any dwelling, with intent to commit a felony, theft, or sexually motivated crime therein.

2. The term "dwelling" in K.S.A. 2018 Supp. 21-5807(a)(1) is defined in K.S.A. 2018 Supp. 21-5111(k) to mean "a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence."

3. Absent proof the place burgled was used as a human habitation, home, or residence when the crime occurred, a conviction for burglary under K.S.A. 2018 Supp. 21-5807(a)(1) requires a showing of proof that, someone had a present, subjective intent at the time of the crime to use the place burgled for such a purpose.