¶1dissenting: I respectfully dissent. No matter how desirable it might be for the protection of the community to imprison a repetitive offender, it does not appear that a basis was established under either the Kansas Sentencing Guidelines Act (KSGA) or case law for a dispositional departure in this case. The majority relies on State v. Trimble, 21 Kan. App. 2d 32, Syl. ¶¶ 5, 6, 894 P.2d 920 (1995), in support of granting a departure based on nonamenability to probation supervision. In Trimble, as here, the defendant had numerous prior convictions and was being sentenced on a presumptive probation offense. The trial court found that Trimble was on probation when he committed the subject offense and, thus, was not amenable to probation.
¶2The present case is more in fine with State v. Hawes, 22 Kan. App. 2d 837, 840, 923 P.2d 1064 (1996). Hawes also had numerous *199prior convictions but was not on probation at the time of the offense for which he was being sentenced. The trial court departed upwards based on the number of the defendant’s prior convictions. This court vacated and remanded, finding that the excessive number of nonperson felony convictions show only that the “defendant is a persistent criminal.”
¶3In the present case, defendant was not on probation at the time he committed the offenses in question. Nothing appears in the sentencing transcript and departure proceedings to indicate how he performed on probation in the past. Other than the number of prior convictions, there is an absence of facts to establish nonamenability to probation.
¶4In addition to the trial court’s findings of fact set forth in the majority opinion, the trial court also found:
“The point I’m trying to make for purposes of figuring where he ends up on the grid we have relied only on one burglary from Parsons and any of these other burglary convictions, for which are number 11, so there’s 10 burglaries here that have not, uh, been utilized or acknowledged or recognized by the grid; that’s a finding of fact. Burglaries that don’t factor into the scoring are viable, substantial and compelling reasons to depart dispositionally from presumptive probation. I have cited other factors in the letter of June 12,1996, to both of you. However, I am only relying on these two facts that I’ve just stated as a reason for departure. I am not relying on anything else that I’ve stated in that letter as a compelling reason to depart. I think those two factors are compelling enough. For that reason, I’m going to depart dispositionally from the presumption of probation and place him in the custody of the secretary of corrections.”
¶5The trial court’s finding that the number of defendant’s prior convictions exceeded the number to place him in a particular grid box finds no support in the KSGA. It does not appear from the legislative history of the KSGA that the intent was to allow departures solely on the number of prior convictions; to do so would introduce ambiguity as to the number or type of crimes justifying removal from the grid box sentence. The exercise of judicial discretion in such cases appears to be precluded by the KSGA. Therefore, I would remand for resentencing.