dissenting: I agree with the majority’s analysis of State v. McKay, 271 Kan. 725, 26 P.3d 58 (2001), and State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). However, I dissent from the majority’s conclusion that Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), does not apply to upward dispositional departures under K.S.A. 2001 Supp. 21-4716.
After this case was docketed in the Court of Appeals, we held in State v. Gould, 271 Kan. 394, 413, 23 P.3d 801 (2001): “The Kansas scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, is unconstitutional on its face.” The plain language of Gould states that the mechanism for imposing upward departures in 21-4716 is void and cannot be used. Here, the district court used 21-4716 to impose an upward departure sentence of imprisonment. The statute has been declared unconstitutional on its face. Carr’s sentence, like Gould’s, cannot stand. Carr’s appeal was pending at the time Gould was filed; thus, Gould’s holding applies to Carr. 271 Kan. at 414. Gould alone disposes of the case at hand.
The majority distinguishes Gould on the basis that it involved an upward durational departure. It is not clear to me how such a distinction can be used to salvage a statute declared unconstitutional on its face.
Our counterparts in New Jersey have aptly observed that when it comes to Apprendi, “its specific application in the context of modem, highly-stmctured sentencing statutes raises difficult issues for reviewing courts.” State v. Johnson, 166 N.J. 523, 530,766 A.2d 1126 (2001). These difficulties are increased by the novelty of the issues presented and the lack of specific guidance from higher courts. The majority here observes that “no federal or state court has applied Apprendi to the question of granting dispositional de*454partures that result in imprisonment rather than probation or parole.” The obvious counterpoint is that no federal or state court has refused to apply Apprendi to dispositional departures. As courts grapple with the application of Apprendi to particular sentencing schemes, the results depend as much upon the content of particular sentencing statutes as upon the content of Apprendi. Quite simply, the question before us is one that turns upon our interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., and it is one we can answer absent the benefit of other federal or state decisions.
The majority focuses on the maxim that probation is an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not as a matter of right. The difficulty with this reasoning is that it ignores the sweeping changes made by the legislature in crafting the KSGA. The arrival of die KSGA requires us to extend the analysis of whether Apprendi applies to dispositional departures beyond die application of a traditional maxim whose origin predates the KSGA.
The majority also points out the difference between a durational departure which results in a lengthier prison term and a dispositional departure which results in a prison term rather than release on probation. On this, we agree. The qualitative difference between prison and probation is obvious and striking. Hudson v. State, 273 Kan. 251, 255, 42 P.3d 150 (2002) (While the demands of probation place certain restrictions on a person’s movements, these are very different from the restrictions of confinement in prison.). The legislature doubtiess kept the difference between the two in mind when crafting the KSGA, which was designed not only to alleviate prison overcrowding but also to standardize sentencing in areas where courts historically exercised considerable discretion. See State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994). Indeed, our courts have recognized that “the imposition of the Kansas Sentencing Guidelines Act . . . has curbed the district court’s discretion in awarding prison or nonimprisonment sentences.” State v. Thomas, 26 Kan. App. 2d 171, 174, 981 P.2d 1178 (1999).
*455Apprendi held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. Here, there is no dispute that the district court found, by a preponderance of the evidence, that Carr was not amenable to probation. The district court then used this finding to impose a prison sentence rather than presumptive probation as dictated by the guidelines. The question becomes whether a prison term, imposed where the severity level of the crime and the criminal history score call for presumptive probation, is an increased penalty beyond the statutory maximum and subject to Apprendi.
The State argues that the presumptive sentence is not the maximum sentence allowed by law. The State urges instead that the statutory maximum sentence for Carr s crime is a prison term of a length defined by the numbers in the appropriate grid box. The State invites us to define Carr’s maximum sentence by the numbers inside the grid box, while ignoring the shading of the box, where both the numbers and the shading were put there by the legislature. This argument is difficult to reconcile.
The majority addresses the issue by pointing to the sentencing court’s historical latitude in awarding probation. This approach is incomplete, as it does not take into account the complexities of the KSGA and current sentencing schemes.
Before the adoption of the KSGA in 1993, felony crimes were defined by statute and assigned a class designation. The statutes set forth a minimum and maximum sentence for each class of felony and noncontrolling criteria for fixing minimum terms. K.S.A. 21-4501 (1988 Ensley); K.S.A. 21-4606 (1988 Ensley). The district court was authorized to release a defendant on probation in almost any case. K.S.A. 1992 Supp. 21-4603(2)(c). One notable exception required the district court to impose a prison sentence where a defendant was convicted of certain crimes in which he or she used a firearm. K.S.A. 1992 Supp. 21-4618. Even this exception had an escape clause, allowing the district court to release a defendant on probation despite the use of a firearm where imposition of a prison *456term “would result in manifest injustice.” K.S.A. 1992 Supp. 21-4618(3).
In short, pre-1993 sentencing statutes bestowed upon district judges a nearly unlimited power to award probation in any case. Probation then was indeed a matter of grace.
The KSGA radically changed the Kansas sentencing paradigm by limiting the scope of judicial discretion. These limits appeared as a sentencing guidelines grid, which dictated sentences according to the severity level of the crime and the defendant’s criminal history. The legislature provided for departures from these sentences only in certain narrowly defined situations.
K.S.A. 2001 Supp. 21-4704a contains the sentencing guidelines grid for nondrug crimes. Each grid box contains numbers representing the range of months of imprisonment. Some boxes on the grid are shaded, indicating that sentences to be imposed within these grid boxes are “presumptive probation.” Other boxes contain diagonal lines, indicating “border boxes” where the presumptive sentence is neither probation nor imprisonment. The balance of the boxes are free of markings other than the numbers, indicating that sentences imposed thereunder are “presumptive imprisonment.” The drug crimes grid is similarly structured. See K.S.A. 2001 Supp. 21-4705.
K.S.A. 2001 Supp. 21-4704a(d) says:
“The sentencing guidelines grid for nondrug crimes as provided in this section defines presumptive punishments for felony convictions, subject to judicial discretion to deviate for substantial and compelling reasons and impose a different sentence in recognition of aggravating and mitigating factors as provided in this act.”
K.S.A. 2001 Supp. 21-4704a(e)(l) says:
“The sentencing court has discretion to sentence at any place within the sentencing range. The sentencing judge shall select the center of the range in the usual case and reserve the upper and lower limits for aggravating and mitigation factors insufficient to warrant a departure.”
K.S.A. 2001 Supp. 21-4704a(f) explains the difference between the shaded and nonshaded portions of the sentencing grid:
*457“Each grid block states the presumptive sentencing range for an offender whose crime of conviction and criminal history place such offender in that grid block. If an offense is classified in a grid block below the dispositional line, the presumptive disposition shall be nonimprisonment. If an offense is classified in a grid block above the dispositional line, the presumptive disposition shall be imprisonment. If an offense is classified in grid blocks 5-H, 5-1 or 5-G, the court may impose an optional nonprison sentence ....
“Any decision made by the court regarding the imposition of an optional non-prison sentence of the offense is classified in grid blocks 5-H, 5-1 or 5-G shall not be considered a departure and shall not be subject to appeal.”
Finally, K.S.A. 21-4703(s) says that the sentencing range is “the sentencing court’s discretionary range in imposing a nonappealable sentence.”
The definition of “sentencing range” is telling, as it dictates that the district court’s discretion extends only as far as a nonappealable sentence. K.S.A. 21-4703(s). A nonappealable sentence includes “[a]ny sentence within the presumptive sentence for the crime.” K.S.A. 21-4721(c)(l). Only a departure sentence is subject to appeal. K.S.A. 21-4721(a).
Carr received a prison term despite the fact that the severity level of the crime and his criminal history score placed him in a presumptive probation box. Carr did not receive a presumptive sentence. These is no dispute that Carr’s dispositional departure sentence was subject to appeal. Carr’s sentence is outside the sentencing range for his crime and beyond the purview of the district court’s discretion.
The provisions of the KSGA read together make clear that the presumptive sentence for a crime is not only defined by the numbers in the grid box alone, but also by whether the box lies above or below the dispositional line. If the crime severity and criminal history dictate a sentence within a shaded grid box, the presumptive sentence is probation. The legislature created and placed the dispositional line and, in doing so, defined the maximum punishment for a crime not only in terms of the length of a sentence but also in terms of whether the punishment itself was to be prison or probation.
The fact that Carr was not amenable to rehabilitation was a court-made finding by a preponderance of the evidence. This *458court-made finding sends Carr to prison. In my view, prison time qualifies as an increased penalty beyond probation, the KSGAprescribed statutory maximum for Carr. Under Apprendi, such a finding cannot be used as support for an upward dispositional departure which increases the penalty for Carr s crime beyond the statutory maximum. Gould, 271 Kan. at 412-13. I would vacate Carr’s upward dispositional departure sentence on this basis and remand for resentencing.
LARSON, J., joins in the foregoing dissenting opinion.