In Kansas the crime of criminal deprivation of property is “obtaining or exerting unauthorized control over property, with intent to deprive the owner of the temporary use thereof, without the owner’s consent but not with the intent of depriving the owner permanently of the possession, use or benefit of such owner’s property.” K.S.A. 21‑3705(a). Theft is “[o]btaining or exerting unauthorized control over property . . . with intent to deprive the owner permanently of the possession, use or benefit of the owner’s [*4] property.” K.S.A. 21‑3701(a)(1).
Accordingly, that criminal deprivation of property is not a lesser included offense of theft because theft requires intent to permanently deprive the owner of the possession, use, or benefit of the property, while the definition of criminal deprivation specifically excludes the intent to permanently deprive. State v. McKissack, 283 Kan. 721, 728‑29 (2007).
In State v. Stoughton, (4/1/2011, Kan. Ct. App., No. 103,898) [NOTICE: This opinion is UNPUBLISHED] Stoughton was charged with theft but not criminal deprivation and the complaint was never amended. The first time that criminal deprivation of property was mentioned was when the judge decided to instruct the jury on the issue at the close of the trial.
Accordingly, the district court was without jurisdiction to convict Stoughton of criminal deprivation of property. “A judgment for an offense where the court is without jurisdiction is void.” State v. McKissack, 283 Kan. 721, 731 (2007).
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