Topeka ? Atty. Gen. Phill Kline says he won’t appeal a Kansas Supreme Court ruling that the state can’t punish underage sex more harshly if it involves homosexuals.

Kline issued a statement Wednesday, saying the decision not to appeal to the U.S. Supreme Court was made “after careful review and consideration.”

Last month, the state’s highest court unanimously sided with Matthew R. Limon, who was sentenced in 2000 to 17 years and two months in prison because, at 18, he had performed a sex act on a 14-year-old boy at a Paola group home for the developmentally disabled.

Had one of them been a girl, Limon could have faced only 15 months behind bars under the 1999 “Romeo and Juliet” law that allows lighter punishment for teenage sex. But the law applied only in cases when partners were of the opposite sex.

The court struck from the law language that treated the cases differently. It also gave the state 30 days to resentence Limon according to standards that treat illegal gay sex and illegal straight sex the same.

Earlier this month, Miami County District Judge Richard Smith freed Limon from the state prison in Ellsworth and allowed him to live with an aunt and uncle on their farm in western Kansas while prosecutors ponder what to do.

Miami County Atty. David Miller, who has until Nov. 26 to make a decision, didn’t respond to a phone message left at his office in Paola seeking comment.

Limon’s attorney, Paige Nichols, of Lawrence, said Kline’s decision was good news because it means the court’s ruling stands.

“Obviously, I’m very happy about that. The Kansas Supreme Court made the right decision and the attorney general wisely decided not to appeal,” Nichols said.

She said until Miller decides what he wants to do, there’s still a chance Limon could be charged anew under the Romeo and Juliet law. But even if that happens, she said Limon won’t return to prison because he served more time than required under the Romeo and Juliet law.

“At this point, I think you can say he is free from incarceration,” said Nichols, declining to say specifically where Limon is living.

His release included restrictions on leaving the home where he’s staying. He also is barred from having contact with minors, cannot use alcohol and drugs, and must undergo sex offender counseling.

During Limon’s trial, an official described the other boy, identified only as M.A.R. in court documents, as mildly retarded and Limon as functioning at a slightly higher level but not as an 18-year-old.

Defense attorneys said the relationship with the younger boy was consensual and suggested they were adolescents experimenting with sex.

Kline’s office repeatedly described Limon as a predator, noting he had two similar, previous offenses on his criminal record. Kansas law makes any sexual activity involving a person under 16 illegal.

The attorney general’s office got involved in the case when it was appealed, challenging the law.

The Kansas Court of Appeals rejected Limon’s appeal in 2002. The next year, the U.S. Supreme Court struck down a Texas law that criminalized gay sex and returned Limon’s case to the state courts.

In January 2004, the state appeals court again sided with the state, and Limon appealed to the state Supreme Court.