concurring: I concur with the majority’s decision affirming Fillman’s convictions. However, I disagree with the majority’s rationale in rejecting Fillman’s double jeopardy challenge and, specifically, with the majority’s failure to explain its extension of the protection provided by K.S.A. 21-3108(3)(a) to the sentencing phase of a former “prosecution.”
As the majority notes, the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against multiple punishments for the same offense as well as second prosecutions for the same offense after conviction or acquittal. Slip op. *256at 5. Further, § 10 of the Kansas Constitution Bill of Rights guarantees the same protection. If Fillman were relying upon either our federal or state Constitution to support his double jeopardy claim, the majority’s extended discussion of the sentencing phase of Fillman’s federal prosecution might be appropriate.
However, as the majority recognizes, because the Fifth Amendment prohibition against double jeopardy does not apply to prosecutions for the same crime by separate sovereignties, Fillman must rely upon K.S.A. 21-3108(3)(a) as the basis for his double jeopardy claim. The majority then proceeds to extensively discuss the federal sentencing process and whether the facts supporting Fillman’s base level offense enhancement constituted elements of a crime in his federal prosecution. It is at this point that I believe the majority’s analysis overlooks an issue regarding the scope of our statute which is dispositive of Fillman’s double jeopardy claim.
K.S.A. 21-3108(3)(a) provides in relevant part:
“A prosecution is barred if the defendant was formerly prosecuted in a district court of the United States ... for a crime which is within the concurrent jurisdiction of this state, if such former prosecution:
“(a) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution.” (Emphasis added.)
The majority simply assumes that the term “prosecution” refers to the sentencing phase of a federal prosecution. Again, if we were applying the Double Jeopardy Clause of the federal Constitution or its Kansas counterpart, that assumption might be accurate. However, we are concerned here only with K.S.A. 21-3108(3)(a) and the term “prosecution,” as used in that statute. K.S.A. 2008 Supp. 21-3110(18) defines “prosecution” as “all legal proceedings by which a person’s liability for a crime is determined.” Once an individual has been convicted of a crime, the liability for that crime has been determined, although the punishment has not.
That K.S.A. 21-3108(3)(a) does not bar prosecution when the conduct at issue was used only in the sentencing phase of a former prosecution seems evident from the language of the statute. It does not bar prosecution if “each prosecution requires proof of a fact not required in the other prosecution.” This provision clearly does *257not apply when the conduct at issue was not required to be proven in federal court, as was the case here.
And in that regard, I would find it unnecessary to engage in the majority’s lengthy analysis as to whether the facts constituting the elements of the crime increased the maximum federal punishment to which Fillman was exposed. As the majority points out, the United States Supreme Court has held that the “facts” constituting a crime are those that increase the maximum punishment to which the defendant is exposed under governing law. Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). However, the majority does not fully state the holding of Apprendi, i.e., that 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.
Clearly, if the facts related to Fillman’s conduct had increased his penalty in the federal case beyond the statutory maximum, those facts would have been submitted to a jury and proven beyond a reasonable doubt. And had that been the case, only then would we consider the application of K.S.A. 21-3108(3)(a) and determine whether each prosecution required proof of a fact not required in the other prosecution.
Thus, I would simply find that the federal court’s use of Fillman’s underlying conduct to enhance his sentence in federal court was not a “prosecution” as contemplated by K.S.A. 21-3108(3)(a).