concurring and dissenting: I concur with the majority as to the timeliness of this appeal and that State v. Smith, 254 Kan. 16, 864 P.2d 1208 (1993), should be applied retroactively. It is only in the manner in which Smith is applied that I differ with the majority.
The majority here finds that jurisdiction existed in the trial court to hear Hervey’s second motion to modify his sentence despite the fact a request for the identical relief had been previously requested and denied and that denial affirmed on appeal. The justification for allowing Hervey’s motion to modify to be twice considered is that in Smith the appeal was only from the *507denial of Smith’s motion to modify (Smith did not directly appeal his conviction), while here Hervey not only first appealed the denial of his motion to modify, he also contemporaneously and unsuccessfully directly appealed his conviction.
I would hold that the fact Smith did not directly appeal his conviction, while Hervey did, is a distinction that makes no difference. What does make a difference is the fact that both Smith and Hervey filed motions to modify their sentences, both motions were denied by the trial court, and both denials were affirmed on appeal.
The essence of the Smith decision is that the “jurisdictional window” of K.S.A. 1992 Supp. 21-4603(4)(b) does not open for a 120-day period to allow a second motion to modify to be filed when the earlier appeal is from the denial of a request for the identical relief.
It is not instructive, in my view, to attempt to obtain guidance from the numerous amendments to K.S.A. 21-4603. State v. Reed, 253 Kan 154, 853 P.2d 50 (1993) (Reed II), is of interest because jurisdiction to hear a second motion was there found to exist when Reed first appealed only a motion to withdraw his plea. State v. Reed, 248 Kan. 506, 809 P.2d 553 (1991) (Reed I).
Also of interest is State v. Saft, 244 Kan. 517, 769 P.2d 675 (1989), which involved an earlier version of 21-4603 but held that when a person convicted of a crime had received a favorable modification of his sentence, the district court was without jurisdiction to hear a second motion to modify.
Reed 11 and Saft differ factually from each other, and from Smith and our case. The first appeal in Reed 1 was not from the denial of Reed’s motion to modify. Safi’s second motion to modify was found not to be timely, but it was filed after he had received favorable treatment from his first motion to modify. Ultimately, neither Reed nor Saft can be deemed to compel a specific result in our case.
I would construe K.S.A. 1992 Supp. 21-4603(4)(b) in a manner different from the majority herein. Although it has been held that “[p]enal statutes must be strictly construed in favor of the person sought to be subject to their operations,” State v. Cole, 238 Kan. 370, 372, 710 P.2d 25 (1985), the rule of strict construction “is subordinate to the rule that judicial interpretation *508must be reasonable and sensible to effectuate legislative design and the true intent of the legislature.” State v. Fowler, 238 Kan. 213, 215, 70S P.2d .539 (1985).
The reasonable and sensible interpretation of K.S.A. 1992 Supp. 21-4603(4)(b) should be that when the appeal that is taken and determined adversely to the defendant includes the denial of a motion to modify a sentence, that decision is final and binding and may not be raised again by a second or successive motion to modify the identical sentence.
I would find that Smith should be applied retroactively but the trial court does not have jurisdiction to hear Hervey’s second motion to modify. This appeal should not be affirmed but, rather, dismissed.