dissenting in part and concurring in part: I respectfully dissent from the majority’s holding in Syl. ¶ 4 of the opinion. I would conclude counting Luttig’s prior forgery convictions to determine criminal history does not run afoul of K.S.A 21-4710(d)(11) because the applicable penalty for forgery is 7 to 23 months. See K.S.A. 21-3710 and 21-4704; see also State v. Boley, 32 Kan. App. 2d 1192, 1197-98, 95 P.3d 1022 (2004) (noting that a severity level 1 penalty is the applicable penalty for commission of K.S.A. 65-4159[a]). Consequently, I would reverse the judgment of the district court and remand for resentencing of Luttig with a criminal history of 8-E.
One of the reasons Kansas went from indeterminate sentencing to a modified determinate sentencing scheme was to address and *1101correct disparity in sentencing. And, to some degree, K.S.A. 21-4710(d)(11) addresses that problem by attempting to limit double counting of an offender s prior convictions. Here, however, no such problem exists and county jail time as a condition of probation does not enhance the applicable penalty provided by law for the crime of forgery. In fact, if probation is revoked at a later time, an offender is entitled to credit for time spent in jail. K.S.A. 21-4614.
I also find support in 21-4704(i) that requires inclusion of all prior forgery convictions to determine a defendant’s criminal history. In other words, a defendant’s criminal history and the applicable grid box under sentencing guidelines will be the same regardless of whether the defendant is given a presumptive sentence or there is a departure sentence.
K.S.A. 21-4704(i) states:
“The sentence for the violation of the felony provision of K.S.A. 8-1567, subsection (b)(3) of K.S.A. 21-3412a, subsections (b)(3) and (b)(4) of K.S.A. 21-3710, K.S.A. 21-4310 and K.S.A. 21-4318, and amendments thereto, shall be as provided by the specific mandatory sentencing requirements of that section and shall not be subject to the provisions of this section or K.S.A. 21-4707 and amendments thereto. If because of the offenders criminal history classification the offender is subject to presumptive imprisonment or if the judge departs from a presumptive probation sentence and the offender is subject to imprisonment, the provisions of this section and KS.A. 21-4707, and amendments thereto, shall apply and the offender shall not be subject to the mandatory sentence as provided in KS.A. 21-3710, and amendments thereto. Notwithstanding the provisions of any other section, the term of imprisonment imposed for the violation of the felony provision of K.S.A. 8-1567, subsection (b)(3) and (b)(4) of K.S.A. 21-3710, K.S.A. 21-4310 and K.S.A. 21-4318, and amendments thereto, shall not be served in a state facility in the custody of the secretary of corrections.” (Emphasis added.)
While perhaps somewhat ponderous, the emphasized language certainly means an offender’s criminal history must include all prior forgery convictions regardless of whether probation is granted. Any other construction would create a significant sentencing disparity between offenders with identical past forgery convictions depending on whether probation was granted or the sentencing court decided to depart and impose a prison sentence.
One short example of the problem. Joe and Tom have identical criminal records with two prior forgery convictions. Both pled *1102guilty to another forgery. Joe is to receive a presumptive sentence of probation with 45 days in the county jail; consequently, his criminal history does not include the two prior forgeries. Tom, on the other hand, receives a departure sentence of imprisonment and his two prior forgeries are included in his criminal history. As a result, Tom receives a significantly longer sentence than Joe. Later Joe’s probation is revoked, but his sentence to be served is less than Tom’s because he received the criminal history windfall.
In summary, Joe and Tom should be treated equally in the eyes of the law. K.S.A. 21-4704(i) specifically addresses how that is to be accomplished. We should hold K.S.A. 21-4710(d)(11) does not apply and send this case back to the district court for resentencing.