257 Kan. 65 (1995) | Cited 6 times | Supreme Court of Kansas | March 10, 1995

The opinion of the court was delivered by

[257 Kan. 66]

This is a direct appeal by Mario S. Fisher from his convictionsfor one count of aggravated kidnapping, six counts of aggravatedrobbery, six counts of kidnapping, and one count of aggravatedbattery. He was sentenced to a controlling term of life plus 15years to life.

Fisher contends the trial court erred in refusing to allow himto withdraw his waiver of a jury trial and to appoint differentcounsel to represent him. He also contends evidence concerningthe Spears Restaurant robbery is insufficient to establish themovement required to prove aggravated kidnapping and kidnapping.Two other errors claimed are that the aggravated kidnapping andaggravated battery convictions are multiplicitous and that thetrial court abused its discretion in failing to justify on therecord a disparity in sentencing between Fisher and two otherpersons convicted in the Spears Restaurant robbery.

Fisher's convictions arise out of three robberies. Two of therobberies occurred the same morning (Bib & Rib Restaurant andKentucky Fried Chicken). In both incidents two individualswearing nylon stocking masks and armed with handguns entered,took money from cash registers and persons present, locked thevictims in walk-in coolers, and left. The victims were unable toidentify the defendant as one of the robbers in either robbery.

Three days later, the third incident occurred at SpearsRestaurant. As with the first two incidents, two men wearingnylon masks and armed with guns entered the restaurant. They tookmoney from the register as well as a money clip from the owner,Randy Spears, and a wallet from a customer, Gary Howard. One ofthe robbers then ordered the manager, Laurie Traffas, to open thesafe. Spears told the men that he could open it. The safe was acylinder floor safe. To get into the lower portion of the safe akey was needed. The key to open the safe was in the office. Oneof the robbers said, "Let's go get it." As Spears stood up to getthe key, the robber hit him on the head with the butt of a gun.The force of the blow knocked Spears to his knees, and he beganbleeding profusely. Traffas and Spears then walked through thewaitress station, down a hallway, and through the kitchen to theoffice with the robber following them. Once in the office,Traffas

[257 Kan. 67]

     obtained the key. The robber then picked up Traffas' purse, andthe three returned to the front of the restaurant. Spearsunlocked the safe with the key and placed money from the safe inTraffas' purse. The robbers then asked where the walk-in freezerwas, but after they received no response they left.

Wichita police officers had arrived at the scene and werewaiting outside the restaurant. They could see through plateglass windows and observe the front of the restaurant. Theywatched the two robbers run out of Spears Restaurant and enter awhite car parked at the front entrance with its headlights on andengine running. After a vehicle chase, the white car hit a poleand came to a stop. Two men exited the car on the passenger sideand one exited on the driver's side. All three were taken intocustody after a foot chase. The defendant was identified as thedriver of the car and the person sitting in the car while therobbery took place. There was one handgun in the front seat ofthe car and one in the back seat. Additionally, in the back seatwas Traffas' purse and the bank bags from the Spears robbery.

Spears and Traffas both identified two individuals as the oneswho robbed the restaurant, but they did not identify thedefendant as one of the robbers. Howard was unable to identifyany individuals, including the defendant, as the robbers.

The defendant gave a confession to the police. He admitted thathe committed the Bib and Rib and Kentucky Fried Chicken robberieswith Gilbert Thomas; a man named Randy was driving the white carduring those robberies. Both the defendant and Thomas werewearing pantyhose masks and displayed weapons, but the defendantdid not think his gun was loaded. The defendant's "job" was totell everyone to get on the floor, and Thomas told everyone toget into the freezer. They split the money taken in the robberiesthree ways.

The defendant also admitted to the police his involvement inthe Spears Restaurant robbery. He initially told the police heasked for a ride from two strangers in a white car. The two mendecided to stop for some food, and they went into Spears whilethe defendant remained in the back seat of the car. Ten minuteslater, the men ran out of the store with guns in their hands, and

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     the driver told the defendant to get into the front seat anddrive. The defendant jumped over the split front seat and drovethe car away. After the car hit a telephone pole, the men toldhim to run, and he did. The defendant insisted he did not knoweither of the men or that a robbery was going to occur. A shorttime later the defendant changed his story and admitted that heknew the men and that he initially drove to Spears, then moved tothe back seat while the two men went inside, and moved back tothe front seat to drive away.

The next day the defendant changed his story about the Spearsrobbery again. He admitted that he was with Andre Jackson andGilbert Thomas. The three of them stopped at Dillons to buy somegloves and pantyhose. Jackson and Thomas told the defendant tostay in the car and drive around to the front of Spears, which hedid while Jackson and Thomas went in with guns. When they cameout, the defendant drove off. The defendant admitted that he knewthey were planning a robbery, but he denied knowing where therobbery would take place. They intended to split the money fromthe robbery three ways. The defendant also admitted that he hadlied the night before in giving his story.

The defendant gave a different story at trial. He insisted thathe was home sleeping on the morning of August 8, 1992, when theBib and Rib and Kentucky Fried Chicken incidents occurred. Hedenied being involved in a robbery that day. The defendant'scousins also testified that he was at home during the morningthose robberies occurred.

The defendant did admit at trial that he was with Jackson andThomas on the day of the Spears Restaurant robbery. He testifiedthat he was driving Thomas' girlfriend's car and they weredrinking beer and gin. Thomas said he was hungry and told thedefendant to pull into Spears. The defendant had no money, so hewaited in the car listening to music while Jackson and Thomaswent inside. About 10 minutes later they came back actingpanicky, and the defendant realized that Thomas had a gun. Thomastold the defendant, "Shut up. Drive, mother-fucker," so thedefendant drove away past the police. The defendant testifiedthat at one point during the chase he told Thomas and Jackson he

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     was going to stop the car and run, but Thomas pointed his gun atthe defendant's head so the defendant kept driving. After the carhit a telephone pole, the defendant ran away as he was scared ofgoing to jail because of the high-speed chase. The defendantinsisted that there was no mention of a robbery before Jacksonand Thomas went into Spears. The defendant testified that he onlyconfessed to the police because he was told that if he confessedhe would get to go home or get probation, that if he did notconfess they would "hang my ass in court," and that Thomas hadalready implicated him.

Following a bench trial, the court convicted the defendant oftwo counts of aggravated robbery and one count of kidnapping inthe Bib and Rib incident; two counts of aggravated robbery andfour counts of kidnapping in the Kentucky Fried Chicken incident;and two counts of aggravated robbery, one count of kidnapping,one count of aggravated kidnapping, and one count of aggravatedbattery in the Spears Restaurant incident. The defendant wasacquitted of robbing Gary Howard of his wallet in the Spearsincident because the charging information was insufficient.

The district court sentenced the defendant to 15 years to lifefor each of the six aggravated robbery convictions, 15 years tolife for each of the six kidnapping convictions, lifeimprisonment for the aggravated kidnapping conviction, and 3 to10 years for the aggravated battery conviction. All sentenceswere imposed concurrently except the life sentence for aggravatedkidnapping, which was imposed consecutively. A motion to modifysentence was denied.


A jury trial was initially scheduled for November 9, 1992. Itwas continued to November 30, 1992, upon the defendant's motionand later to December 7, 1992, again upon the defendant's motion.On December 3, the defendant requested another continuance. Themotion noted that defense counsel had never before tried to ajury a case involving a class A or B felony and sought more timein which to prepare for trial. A hearing on the motion was heldon December 4, 1992. The defendant's counsel

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     stressed that additional time was needed for trial preparation,including time to interview the victims in the case as well aspotential alibi witnesses. Counsel stated that he was not fullyprepared to go to trial on December 7 as scheduled. Judge Roysedenied the motion for continuance, noting that it was thedefendant's third such motion. Judge Royse also noted that thedefendant did not seek to obtain investigative services untilafter the first trial setting and that there was no explanationas to why the defense had not yet interviewed witnesses in lightof the State's success at contacting the witnesses.

The defendant made an oral motion to waive jury trial onDecember 4, 1992. The following colloquy occurred: "THE COURT: Mr. Fisher, have you had an opportunity to visit with Mr. Seaton [defense counsel] about this waiver of a jury trial today? "THE DEFENDANT: Yes. "THE COURT: And is it your desire to waive a jury trial? "THE DEFENDANT: Yes. "THE COURT: You understand, sir, that you have a right under both the Federal and State Constitutions to have a jury trial in this case? "THE DEFENDANT: Yes. "THE COURT: And you understand that if you waive a jury trial you give up your right to a jury trial and you will not have a jury trial in this case? "THE DEFENDANT: Yes. "THE COURT: And you understand that what will happen, sir, will be that a judge, sitting alone, will hear the evidence and will make a determination whether you are guilty or not guilty, having held the State to the burden of proof beyond a reasonable doubt? It's a long question. Do you understand a judge will decide whether you're guilty or not? "THE DEFENDANT: Yes. "THE COURT: And that the judge will use the standard of beyond a reasonable doubt in evaluating the evidence that's presented? "THE DEFENDANT: Yes. "THE COURT: Is it your desire to waive your jury in this case, Mr. Fisher? "THE DEFENDANT: Yes."Judge Royse apparently granted the motion, though the court madeno ruling on the record. The defendant then requested a December31, 1992, bench trial setting. Defense counsel stated, "I'm notreally trying to buy time as opposed to just waiving the jurytrial based on some negotiations that the District Attorney andmyself have entered into, frankly, and I need some time to

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     get those squared away and get things worked out with the Court'spermission, we would ask that the Court set the bench trial dateof the 31st of December." Judge Royse denied the request, and thetrial remained scheduled for December 7, 1992. On that date, thetrial was rescheduled for December 31, 1992.

On December 29, 1992, the defendant filed a pro se motionseeking to withdraw his waiver of jury trial and to appoint newcounsel to represent him. The motion was drafted by defensecounsel at the defendant's request. The defendant provided thefollowing reasons in support of his motion: "1. That his attorney, Richard H. Seaton, Jr., forced him into a waiver of jury trial entered December 4, 1992. "2. That said Waiver of Jury Trial was not a knowing, willful and intelligent waiver."Judge Clark denied the defendant's pro se motion summarily.

The defendant argues the trial court abused its discretion indenying his motion to withdraw jury trial waiver and to appointnew counsel.

In State v. Anderson, 243 Kan. 677, Syl. ¶ 3, 763 P.2d 597(1988), this court stated, "A waiver of trial by jury,voluntarily and regularly made by the defendant in a criminalaction who knew and understood what he was doing, cannotafterward be withdrawn except in the court's discretion." Theparties in Anderson agreed that the defendant had validlywaived his right to a jury trial. 243 Kan. at 680. The defendantthen sought to withdraw the waiver, and the trial court, by JudgeClark, denied the motion summarily. The defendant renewed hismotion immediately prior to trial, and the court, by JudgeWatson, again denied the motion. This court found no abuse ofdiscretion in the denial of the motion.

The defendant points out that Judge Royse made no findings onthe record that his waiver was knowing and voluntary. He reasonsthat the circumstances of his waiver show it was not knowing andvoluntary; rather, the waiver was done after a motion forcontinuance was denied and was done because defense counsel wasunprepared for trial the following week and the waiver had theconvenient effect of ultimately giving counsel more time to

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     adequately prepare for trial. The defendant acknowledges that therecord is devoid of any direct evidence that supports theinference that his trial counsel forced him into waiving hisright to a jury trial in order to gain more time to prepare fortrial, but he reasons that the cause of the lack of evidence isthat the trial court failed to conduct an inquiry into the meritsof the defendant's motion. The defendant points out that JudgeClark denied the motion to withdraw waiver summarily. Moreover,Judge Deer refused to permit the defendant to make a statementprior to his bench trial.

In Anderson, 243 Kan. at 680, the defendant's first motion towithdraw his waiver of jury trial was denied summarily. Hiscounsel then renewed the motion at trial, and it was againdenied. This court stated: "Any error by Judge Clark in rulingupon the motion in defendant's absence was clearly corrected whenthe motion was presented before Judge Watson in defendant'spresence." 243 Kan. at 680. The defendant also complained thatthe trial court did not let him personally address the court insupport of his motion. This court stated: "Anderson waspersonally present and was represented by competent counsel whowas capable of articulating any concerns or arguments thedefendant wanted to convey to the trial judge in connection withhis motion to withdraw the waiver. We find no error." 243 Kan. at681.

The defendant distinguishes Anderson from the case at barbecause here, "not only was the motion for withdrawal of waiverof jury [trial] not heard at any time, but that, to compound theoriginal error, this defendant was twice denied his right to reada statement to the court which most probably dealt with thisissue."

The State asserts that the trial court did not abuse itsdiscretion in denying the defendant's motion to withdraw hiswaiver of jury trial. The State argues that the reasons given bythe defendant in support of his motion to withdraw waiver wereconclusory in nature and therefore did not require a hearingbefore the court ruled on the motion, citing State v. Jackson,255 Kan. 455, 874 P.2d 1138 (1994). The State reasons that thefiles and records accessible to the court indicated that thedefendant was not forced to waive his jury. The defendant madehis waiver in open court with defense counsel present, and heexpressed at that time his

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     understanding of the right to a jury trial and the court's dutyto find him guilty beyond a reasonable doubt. Moreover, the Statepoints out that defense counsel told the court that gaining timeto prepare for trial was not the reason for the waiver.

In Jackson, 255 Kan. 455, the defendant pleaded guilty, wassentenced, and three weeks later filed a pro se motion towithdraw his plea of guilty. His handwritten motion to withdrawplea alleged that he was extremely pressured and pressed intoentering the plea, his counsel was insufficient, he was compelledto plead guilty, and new evidence had been discovered. 255 456. This court held that the trial court did not abuse itsdiscretion in summarily denying the motion to withdraw plea. Thiscourt stated: "[I]f there is no substantial question of law ortriable issue of fact and the files and records conclusively showthat the defendant is not entitled to relief on the motion, thenthere is no requirement that a hearing be held." 255 Kan. at 461.This court held that Jackson had not alleged facts sufficient torequire a hearing on his motion because he had stated mereconclusions. We stated: "Mere conclusions of a petitioner forwhich no evidentiary basis is stated or appears are notsufficient basis for relief from conviction." 255 Kan. 455, Syl.¶ 5.

The record here reflects that the defendant's waiver of hisright to a jury trial was knowing and voluntary at the time itwas made. The defendant had the opportunity to consult withcounsel about the waiver. He was informed that he had theconstitutional right to a jury trial and that by waiving the jurytrial a judge would determine whether he was guilty under astandard of proof beyond a reasonable doubt. The defendantindicated that he desired to waive his right to a jury trial. Thedefendant's pro se motion to withdraw the waiver asserted that hewas forced by defense counsel into waiving his jury and that thewaiver was not knowing, willful, and intelligent. However, thedefendant set forth no evidentiary basis for his assertions.There is no evidence in the record, other than the defendant'sconclusory statements, that his waiver was not knowing andvoluntary.

The defendant was present at the hearing on his motion to waivejury trial. He engaged in a brief colloquy with the court

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     concerning the waiver. He made no indication at that time that hewas waiving his jury in the hopes of gaining more time forcounsel to prepare for trial. When the defendant's counsel askedfor a December 31 bench trial date, he specifically informed thecourt that the waiver was not done to gain additional preparationtime. Moreover, when Judge Royse denied defense counsel's requestto schedule a bench trial for December 31 and left the trialscheduled for December 7, the defendant did not then speak up andask to withdraw the waiver.

The trial court's failure to conduct a hearing before denyingthe defendant's motion to withdraw the waiver was not an abuse ofdiscretion in light of the defendant's failure to raise asubstantial issue of fact concerning the waiver. The record showsa knowing and voluntary waiver of the right to a jury trial. Thedefendant's allegation that he was forced into waiving his juryis not supported by the record. The defendant has not shown thatthe trial court abused its discretion in denying his motion towithdraw his waiver of a jury trial.


Prior to trial, the defendant moved to dismiss the charge ofaggravated kidnapping in the Spears Restaurant incident. Heargued the movement of Randy Spears to the office to obtain thekey to the safe was only incidental to the crime of robbery andwas not sufficient to support a conviction for aggravatedkidnapping. The trial court denied the motion, finding that themovement of Spears from behind the cash register, through awaitress station, through a hallway, through the kitchen, andinto the office was not slight or inconsequential and that themovement lessened the risk of detection and made the crime easierof commission.

The defendant renewed his motion at trial. The parties briefedthe issue, and the court heard argument. The court again deniedthe motion.

On appeal, the defendant argues that the evidence wasinsufficient to support a conviction for the aggravatedkidnapping of Randy Spears and also for the kidnapping of LaurieTraffas. He reasons that the movement of Spears and Traffas fromthe safe

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     to the back office to obtain a key to the safe was incidental tothe crime of robbery and was insufficient to constitutekidnapping.

K.S.A. 21-3420 defines kidnapping in relevant part as "thetaking or confining of any person, accomplished by force, threator deception, with the intent to hold such person . . . [t]ofacilitate flight or the commission of any crime." Aggravatedkidnapping is kidnapping where bodily harm is inflicted upon theperson kidnapped. K.S.A. 21-3421. The State charged that thekidnapping of Traffas and the aggravated kidnapping of Spearswere done to facilitate the commission of the crime of robbery oraggravated robbery.

Both the defendant and the State cite State v. Buggs,219 Kan. 203, 547 P.2d 720 (1976). Buggs is the leading Kansas casewhich discusses in depth the crime of kidnapping and the elementsnecessary to establish the offense where a taking or confinementoccurs to facilitate the commission of another crime. This courtstated: "The word `facilitate' in K.S.A. 21-3420 means something more than just to make more convenient. A taking or confining, in order to be said to `facilitate' a crime, must have some significant bearing on making the commission of the crime `easier.'" "If a taking or confining is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement: (a) Must not be slight, inconsequential and merely incidental to the other crime; (b) Must not be of a kind inherent in the nature of the other crime; and (c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection." 219 Kan. 203, Syl. ¶¶ 9, 10.

In Buggs, the victims were accosted outside a Dairy Queen atthe fringe of the parking lot, where they were subject to publicview. The defendants forced them to return to the relativeseclusion of the inside of the closed restaurant, although therobbery could have been accomplished outside the store or withoutforcing the victims into the store. This court held that themovement from outside the restaurant to inside the restaurantsubstantially

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     reduced the risk of detection and was a taking or confiningnecessary to facilitate the commission of a robbery and a rape.219 Kan. at 216-17. This court also gave examples, subject toqualification, of the extent of taking or confining necessary tosupport a kidnapping, stating:

"For example: A standstill robbery on the street is not a kidnapping; the forced removal of the victim to a dark alley for robbery is. The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not a kidnapping; the removal from a public place to a place of seclusion is. The forced direction of a store clerk to cross the store to open a cash register is not a kidnapping; locking him in a cooler to facilitate escape is." 219 Kan. at 216.

The defendant argues that the movement in this case isindistinguishable from "[t]he forced direction of a store clerkto cross the store to open a cash register," which Buggs saidis not a kidnapping.

The State, conversely, contends the Buggs example and thecase at bar are distinguishable: In the case at bar, the robbersmoved Spears and Traffas through three or four doors to an areanot readily accessible to the public 100 feet away, giving therobbers access to money from the safe and Traffas' purse. TheState reasons that the movement was not slight or inconsequentialor inherent in the crime of aggravated robbery because theaggravated robbery could have been completed without movingSpears and Traffas to the office. The robbers had already takenmoney from the cash register and could have foregone the money inthe safe or retrieved the key from the office without takingSpears and Traffas to the office. Moreover, the State reasons,the movement and confinement made the crime regarding the safesubstantially easier of commission and substantially lessened therisk of detection because the safe would have been virtuallyimpossible to open without the key and because the robbers spentless time in the restaurant.

Both parties also cite State v. Pink, 236 Kan. 715, 696 P.2d 358(1985). In Pink, the defendants moved two victims into acooler and then removed one victim so she could open the cashregisters and attempt to open the safe. This court held theevidence

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     sufficient to support two counts of kidnapping, stating: "Theforcible moving of the victims to the cooler in order tofacilitate the robbery was clearly a kidnapping within themeaning of the statute and State v. Buggs, 219 Kan. 203,547 P.2d 720 (1976)." Pink, 236 Kan. at 729-30. The defendantstresses that the fact one victim was taken throughout the insideof the store to open the cash registers and safe was not reliedupon by the Pink court in sustaining the kidnappingconvictions. The State refers to Pink as a kidnapping casewhere the victim was taken from the cash register area to theoffice where the safe was located. We find Pink inapposite. Itmade no difference in Pink whether the victims were movedthroughout the store or not because placing them in the coolerwas sufficient to establish the kidnapping; this court simply didnot address or express an opinion as to whether the movementthroughout the store would or would not have been sufficient fora kidnapping conviction.

Examples of cases where this court found that a kidnappingoccurred include the following: State v. Alires, 246 Kan. 635,792 P.2d 1019 (1990) (defendant forced victim of conveniencestore robbery out of store and onto combine in parking lot tohide the fact that a robbery was in progress and to facilitateescape); State v. Turbeville, 235 Kan. 993, 686 P.2d 138 (1984)(defendant moved victims from front display area of store tooffice at back of store before committing attempted murder);State v. Weigel, 228 Kan. 194, 612 P.2d 636 (1980) (defendantforced bank employees into bank vault and attempted to lock thevault door to facilitate escape); State v. Nelson,223 Kan. 572, 575 P.2d 547 (1978) (victims ordered into unlockedrefrigerator during robbery of restaurant); State v. Brooks,222 Kan. 432, 565 P.2d 241 (1977) (three victims in hardwarestore robbery herded to rear of store and bound with tape, fourthvictim bound and confined in the restroom).

In Kirtsey v. Florida, 511 So.2d 744, Syl. (Fla. Dist. App.1987), the Florida Court of Appeals, under facts similar to thoseoccurring at Spears Restaurant, held:

"There was insufficient evidence of incidental acts, separate from simultaneously occurring attempted robbery, to establish kidnapping where confinement

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      and movement of robbery victims was limited to interior of restaurant where robbery occurred; though acts of confinement and movement were not inherent in offense of robbery, and may have made attempted robbery easier to commit, acts were slight and merely incidental to robbery offense."

The evidence here was not sufficient to support the crimes ofkidnapping and aggravated kidnapping distinct from the crime ofaggravated robbery in the Spears incident. The events at theSpears Restaurant do not rise to the level discussed in the casesabove where this court found that kidnapping did occur. Buggsrequires that the movement "have some significance independent ofthe other crime in that it makes the other crime substantiallyeasier of commission or substantially lessens the risk ofdetection." 219 Kan. 203, Syl. ¶ 10.

The movement of Spears and Traffas neither made the crimesubstantially easier of commission, nor did it substantiallylessen the risk of detection. The forced direction of Spears andTraffas through the restaurant was merely for the purpose ofconvenience, not to make the crime substantially easier ofcommission. It was more convenient to have Traffas and Spears,who knew where the key to the safe was located, obtain the keyrather than the robber alone looking for the key and rather thanattempting some other means of entry into the safe. Moreover,Spears and Traffas were not forced to remain in the back office,out of sight of any passersby, to lessen the risk of detection;rather, they returned to the front of the store. Indeed, whileone robber walked with Spears and Traffas to the office, the onewho remained in the front area of the store with the othervictims was fully visible through the window of the restaurant.(The officer responding while the robbery was taking placeobserved the other robber through the window.)

This case is no different from "the forced direction of a storeclerk to cross the store to open a cash register" described inBuggs. Under all the factual circumstances presented in therecord, the crimes of aggravated kidnapping and kidnappingdistinct from the crime of aggravated robbery were notestablished. The defendant's convictions for aggravatedkidnapping and kidnapping arising out of the Spears Restaurantincident must be reversed.

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During the Spears Restaurant robbery, one of the robbers hitRandy Spears on the head with the butt of his gun, causinginjury. That act of force and injury provided the basis for thecharge of aggravated battery and also provided the requisite harmto make the kidnapping of Spears aggravated. The defendant arguedin the trial court that the charges for the aggravated kidnappingand aggravated battery of Randy Spears were multiplicitousbecause they were premised on the same injury. The trial courtdisagreed. This court need not reach the issue because we haveheld there was no aggravated kidnapping. There was an aggravatedbattery, and that conviction is affirmed.


The defendant argues that the district court abused itsdiscretion in sentencing him to a controlling term of life plus15 years to life because the sentence exceeds that imposed on hiscoconspirators in the Spears Restaurant robbery and the trialcourt gave no reasons for imposing a longer sentence. This issueis now moot by reason of our reversal of the aggravatedkidnapping charge which is the basis of the life sentence.

The State has not raised and neither party has briefed theissue of whether this court has authority to vacate the remainingsentences, or at least the sentences for the offenses arising outof the Spears Restaurant incident, and remand for resentencing.The law in Kansas and other states concerning sentences hasgenerally been stated as follows: "Where a valid sentence hasbeen pronounced in a criminal case and has been put intoexecution, the trial court is without authority to set suchsentence aside and impose a new sentence." State v. Lyon,207 Kan. 378, Syl. ¶ 3, 485 P.2d 332 (1971). The trial courts> do haveauthority and jurisdiction to correct unlawful, void, and invalidsentences.

A line of cases in other jurisdictions considers what happenswhen one or more sentences imposed as part of a sentencingpackage are vacated because the defendant for whatever reasoncould not be convicted of or sentenced for one or more of thecrimes the defendant was sentenced for committing. Basically,

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     these cases hold that when a defendant is given a sentencingpackage and one or more of the sentences are permanently vacated,it does not violate the double jeopardy clause to vacate thesentences that were not at issue on appeal and to remand forresentencing. Of course, North Carolina v. Pearce, 395 U.S. 711,23 L.Ed.2d 656, 89 S.Ct. 2072 (1969), would apply. Thetheory is that by allowing resentencing, the sentencing court canre-evaluate the sentencing package in light of the remainingconvictions and resentence the defendant to effectuate thecourt's original sentencing intent. See for example UnitedStates v. Young, 953 F.2d 1288 (11th Cir. 1992); United Statesv. Dominguez, 951 F.2d 412 (1st Cir. 1991), cert. denied504 U.S. 917, 118 L.Ed.2d 562 (1992); United States v. Vontsteen,950 F.2d 1086 (5th Cir.), cert. denied 505 U.S. 1223, 120L.Ed.2d 908 (1992); United States v. Welch, 928 F.2d 915 (10thCir.), cert. denied 502 U.S. 850 (1991); Kelly v. Neubert,898 F.2d 15 (3d Cir. 1990); United States v. Pimienta-Redondo,874 F.2d 9 (1st Cir.), cert. denied 493 U.S. 890 (1989);United States v. Diaz, 834 F.2d 287 (2d Cir. 1987), cert.denied 488 U.S. 818 (1988); United States v. Shue, 825 F.2d 1111(7th Cir. 1987); United States v. Lail, 814 F.2d 1529(11th Cir. 1987); United States v. Kuna, 781 F.2d 104 (7th Cir.1986); United States v. Bello, 767 F.2d 1065 (4th Cir. 1985);United States v. Sales, 725 F.2d 458 (8th Cir. 1984); UnitedStates v. Moore, 710 F.2d 270 (6th Cir.), cert. denied464 U.S. 997 (1983); United States v. Busic, 639 F.2d 940 (3dCir.), cert. denied 452 U.S. 918 (1981); State v.MacGillivray, 162 Ariz. 539, 785 P.2d 59 (1989); State v.Raucci, 21 Conn. App. 557, 575 A.2d 234 (1990); White v.State, 576 A.2d 1322 (Del. Super. 1990); Thorne v. UnitedStates, 471 A.2d 247 (D.C. 1983); Herring v. State, 411 So.2d 966(Fla. Dist. App. 1982); State v. Neville, 572 So.2d 1161(La. App. 1990); State v. Keefe, 573 A.2d 20 (Me. 1990); Statev. Rodriguez, 97 N.J. 263, 478 A.2d 408 (1984); State v.Hersch, 467 N.W.2d 463 (N.D. 1991); Com. v. Sutton, 400 Pa. Super. 291,583 A.2d 500 (1990); State v. Larson, 56 Wn. App. 323,783 P.2d 1093 (1989); State v. Martin, 121 Wis.2d 670,360 N.W.2d 43 (1985).

Neither party has requested, raised, or briefed the issue ofresentencing, and we decline to raise the issue on our own.

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The trial court is affirmed in part (motion to withdraw waiverof right to a jury trial and for new counsel and defendant'sconviction for aggravated battery) and reversed in part (theconvictions for aggravated kidnapping and kidnapping arising outof the Spears robbery), and the case is remanded to the trialcourt to vacate the sentences imposed for the two convictionsreversed.

[257 Kan. 82]

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