The Kansas Court of Appeals has vacated a Riley County sentence and remanded it back to the local court with directions, in a case involving alleged battery against a law enforcement officer. In State of Kansas v. Tracey Jerome Toliver, the state court reversed Toliver’s felony conviction and his sentence was vacated. And the seven page opinion concludes “Since this felony conviction was designated by the district court as the primary crime for purposes of calculating Toliver’s base sentence, this case is remanded for sentencing with directions to recalculate the sentence by using the next highest severity level conviction to calculate the base sentence.”
The appeal involved the consolidation of three cases against Toliver, in a February 2014 search of a Manhattan house. Toliver was detained, placed in handcuffs, and seated in a police car. The felony battery charge involved Toliver spitting at a law enforcement officer. Toliver was found guilty on the misdemeanor and felony battery aginst a law enforcement officer charges, and a criminal threat charge, but not marijuana possession.
Much of the opinion refers to state statute and indicates the legislature’s intention to refer to “correctional officer or employee” which the higher court maintains did not apply in this case as the detective involved in the spitting incident was not a correctional employee.
