dissenting: The majority concludes that this court has jurisdiction to hear this appeal from a minimum sentence following a guilty plea. It characterizes the appeal as being one from the manner of imposition of Salinas’ sentence as opposed to an appeal from a denial of probation, relying on State v. Bruner, 15 Kan. App. 2d 369, 808 P.2d 440 (1991). The Bruner opinion contains a very fine review of Kansas cases dealing with the issue of a defendant’s right to appeal following a guilty or nolo contendere plea. A similar analysis need not be repeated here except to point out my disagreement with the conclusions reached in Bruner.
Although Bruner relied on State v. Bennett, 240 Kan. 575, 731 P.2d 284 (1987), which involved an appeal from a minimum sentence, the court in Bennett relied upon State v. Harrold, 239 Kan. 645, 722 P.2d 563 (1986), which involved an appeal from a sentence that exceeded the minimum. It is not clear from the opinion whether the Bennett court considered that difference in the sentence in Harrold or whether that difference was argued to the court; for the reasons stated below, the holding in Bennett constitutes an anomaly.
The Bruner case recognizes that the decision of “whether to grant probation is exclusively a function of the trial court pursuant to K.S.A. 1990 Supp. 21-4603 and, as a general rule, a decision denying probation is not subject to appellate review. State v. *582VanReed, 245 Kan. 213, 215, 777 P.2d 794 (1989).” State v. Bruner, 15 Kan. App. 2d 369, 370. Bruner further recognizes that K.S.A. 22-3602(a) precludes a direct appeal of a denial of probation following a plea of guilty or nolo contendere. 15 Kan. App. 2d at 370.
Bruner also recognizes that, since a trial court has no power to impose a sentence below the minimum, an appeal from a minimum sentence would seem to actually be an appeal from a denial of probation. Notwithstanding this apparent conclusion, the court in Bruner goes on to conclude that a trial court’s discretion should be subject to appellate review even absent any allegations of partiality, prejudice, or corrupt motive. “Allowing appeals from even a minimum sentence will insure that criminal sentences are imposed in accord with K.S.A. 21-4606(2).” State v. Bruner, 15 Kan. App. 2d at 372. If minimum sentences should be reviewed in accord with the factors in K.S.A. 21-4606(2), then why has our court previously stated that when a sentencing court has imposed a minimum sentence “a record of the factors it considered is even less important”? State v. Brewer, 11 Kan. App. 2d 655, 665, 732 P.2d 780, rev. denied 241 Kan. 839 (1987).
Likewise, our Supreme Court apparently believes that abuse of discretion issues only arise when sentences exceed the minimum. In State v. Meyers, 245 Kan. 471, 479, 781 P.2d 700 (1989), the defendant was challenging his sentence in part because the trial court had not considered the 21-4606 sentencing factors on the record. The court stated:
“The minimum term Meyers could have received for second-degree murder was 5-20 years. K.S.A. 21-4501(b). Since the sentence imposed exceeded the statutory minimum, the better practice would- have been for the trial court to have made a detailed record of the factors it considered. Since it did not, the question is whether there was an abuse of discretion.”
The obvious implication of the Supreme Court’s statement is that, if a minimum sentence had been imposed, a record of the sentencing factors would not be necessary since abuse of discretion would not be an issue.
Absent allegations of partiality, prejudice, or corrupt motive, this court should not accept appeals from minimum sentences imposed following a plea of guilty or nolo contendere.
*583In the present case, Salinas pled guilty to nonsupport of a child, K.S.A. 1990 Supp. 21-3605, a class E felony. It was his first felony conviction. Except for the fact that nonsupport of a child is an article 36 crime in chapter 21 of the Kansas Statutes Annotated, the presumptive sentence of probation statute, K.S.A. 1989 Supp. 21-4606a, would apply. Because it was an article 36 crime, Salinas does not contend that the statute applied.
Although not raised by Salinas, I believe, however, that K.S.A. 1989 Supp. 21-4606b, presumptive sentence of assignment to a community service program, would apply. The offensé occurred between July 1, 1985, and December 5, 1989. K.S.A. 1989 Supp. 21-4606b became effective July 1, 1989. L. 1989, ch. 92, § 13. The version of the statute then in effect stated:
“(1) If probation is not granted pursuant to K.S.A. 21-4606a, and amendments thereto, the presumptive sentence for a person convicted of a class D or E felony shall be assignment to a community correctional services program on terms the court determines.
“(2) In determining whether to impose the presumptive sentence provided by this section, the court shall consider whether any of the following aggravating circumstances existed:
(a) Whether the crime is a felony violation of K.S.A. 65-4127b and amendments thereto which involved the manufacture, sale, offer for sale or possession with intent to sell such controlled substances;
(b) whether the crime is a crime specified in article 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated; or
(c) any prior record of the person’s having been convicted of a felony or having been adjudicated to have committed, while a juvenile, an offense which would constitute a felony if committed by an adult.”
While aggravating circumstances did exist (see K.S.A. 1989 Supp. 21-4606b[2][b] and [c]), the district court does not seem to have expressly considered this presumptive sentence. “A point not raised before or presented to the trial court cannot be raised for the first time on appeal.” Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 552, 731 P.2d 273 (1987). State v. VanReed, 245 Kan. 213, Syl. ¶ 4, “creates an exception to the general rule that there is no right of direct appeal from a denial of probation following a plea of guilty or nolo contendere in those circumstances to which a statutory presumption of probation applies.” State v. Bruner, 15 Kan. App. 2d at 370.
*584I would remand for resentencing with directions that the court consider K.S.A. 1989 Supp. 21-4606b.
No. 65,320
In the Court of Appeals of the State of Kansas
State of Kansas, Appellee, v. David Salinas, Appellant.
ORDER
Following the filing of appellant’s motion for rehearing en banc on June 3, 1991, this panel, on its own motion, reconsiders the majority opinion filed May 24, 1991, which did not address the trial court’s failure to consider K.S.A. 1989 Supp. 21-4606b because that issue was not raised on appeal. After reconsideration, this panel adopts Judge Brazil’s dissent to the extent that the dissent finds “that K.S.A. 1989 Supp. 21-4606b, presumptive sentence of assignment to a community service program, would apply.”
We remand for resentencing with directions that the court consider K.S.A. 1989 Supp. 21-4606b.
DATED: June 21, 1991.
For the Court
/s/
Robert E. Davis, Judge