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24 Kan. App. 2d 380

No. 78,879¹

STATE OF KANSAS, Appellee, v. RUSSELL N. BIRD, Appellant.

SYLLABUS BY THE COURT

1. A criminal sentence imposed is not tolled while detainers from other counties are being honored.

2. Under K.S.A. 21-4614, a defendant is to be given full credit for time served after imposition of sentence while awaiting trial upon other charges, regardless of the place of confinement.

Appeal from Kingman District Court; LARRY T. SOLOMON, judge. Opinion filed July 7, 1997. Reversed and remanded with directions.

Lisa Nathanson, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.

Laurel D. McClellan, county attorney, and Carla J. Stovall, attorney general, for appellee.

Before PIERRON, P.J., ROYSE and KNUDSON, JJ.

KNUDSON, J.: Russell N. Bird was sentenced by the Kingman County District Court to serve a controlling sentence of 1 year and 2 months in the county jail for various offenses. After Bird began serving the sentence, he was transported to the Haskell and Seward County jails for disposition of detainers. The issue on appeal is whether Bird should have been given credit on this sentence for the time he spent in the Haskell County jail (10 days) and in the Seward County jail (132 days). The district court refused to grant any credit. It is undisputed that Bird has fully served his sentence if the district court erred in its ruling. We reverse and remand with directions that Bird be released forthwith from custody because he has served the entire sentence.

We hold that a sentence imposed is not tolled while detainers from other counties are being honored.

The State contends that K.S.A. 21-4614 is applicable. We agree it is the key to reaching a proper decision, but it is not directly applicable to the Kingman County sentence. A proper construction of K.S.A. 21-4614 precludes Bird receiving credit for time spent in custody awaiting sentencing in either Haskell or Seward Counties because he was simultaneously serving his Kingman County sentence. See Campbell v. State, 223 Kan. 528, 575 P.2d 524 (1978). Conversely, a necessary corollary under the statute is that Bird is entitled to receive full credit upon his Kingman County sentence for time served after it was imposed, regardless of which sheriff thereafter had his physical custody. Any other construction would constitute a denial of Bird's 14th Amendment rights of due process and equal protection under the law.

Reversed and remanded with directions that Bird be released from custody forthwith.

¹REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish by an order dated September 26, 1997, pursuant to Rule 7.04 (1996 Kan. Ct. R. Annot 40).