Wichita ? An elderly man who spent 71 days in jail for taking two hot dogs he said he forgot to pay for at a convenience store has been found not guilty of felony theft.

The two-day trial last week in Sedgwick County Court against Thomas M. Wimberly, a veteran living on Social Security, “was stupid,” said presiding juror Krysti Mason, 21.

Kansas law requires felony prosecution for crimes such as petty theft if the suspect has had two prior convictions. Wimberly had two previous misdemeanor thefts on his record, one more than a decade old.

Wimberly, 75, stayed in jail after being arrested because he couldn’t pay the bond, $100,000 at one point, even though he was charged with a crime that nets probation after a conviction.

Last July, Wimberly walked out of a QuikTrip without paying the $2.11 for the hot dogs. He paid for a candy bar and had enough money to pay for the franks, but he said he saw his dog outside trying to jump out of his shopping cart, so he went out to stop the dog – and forgot to pay for the hot dogs.

Cases like his go to district attorneys when they reach felonies, after a recent Supreme Court decision prompted city municipal courts to send misdemeanor cases to district attorneys.

“It’s highly frustrating,” said Kim Parker, deputy district attorney for Sedgwick County. “Nevertheless, we’re trying to make sure no one walks through without some sort of consequence.”

Parker said the district attorney’s office, because it takes prior criminal records into account, has handled cases such as alcoholics stealing mouthwash.

“Obviously, businesses get hard hit all the time with repeat shoplifters,” Parker said. “And the cost of shoplifting is passed on to all of us, anyway. Then they take their disappointment to the Legislature” and push for get-tough bills.

Past transgressions

No one is saying Wimberly has led a perfect life. More than 20 years ago, Wimberly, then 52, hit and killed a 10-year-old girl. Wimberly remembers the car brakes failing, but police said his blood alcohol level was 0.122, higher than the legal limit of 0.1 at the time.

Wimberly pleaded guilty to involuntary manslaughter and drunken driving.

“I took responsibility,” Wimberly told The Wichita Eagle in a December telephone interview. “It was the only thing to do. I wanted to set an example for my kids.”

After getting out of jail and bouncing from job to job, Wimberly was convicted of petty theft in 1994 and again in 2000.

When he was arrested for the hot dog theft July 8, 2006, Wimberly lived on a $448 monthly Social Security check.

The city sent Wimberly’s case to the district attorney’s office. But a summons to attend a hearing at the Sedgwick County District Court was returned as undelivered. When Wimberly failed to show up, a bench warrant was issued for him.

That landed him in the Sedgwick County Jail on Nov. 20 with a $5,000 bond.

That’s a standard bond for such cases, said Judge Greg Waller, who presides over the district court’s criminal division. But in Wimberly’s case, the $500 cash bond was more than his monthly income.

“For someone like Thomas, even $100 is more than half what he pays for his monthly rent,” said Lacy Gilmour, the lawyer with the Sedgwick County public defender’s office assigned to the case.

‘A silly case’

After waiving his right to a preliminary hearing and being bound over for trial, Wimberly stayed locked up until Gilmour persuaded Waller to release him on a no-cash bond two days after Christmas.

He was told to check in at a center across town. He did so and stayed out of jail for two months until he became ill. When Wimberly missed reporting, he was sent back to jail under a $100,000 bond.

Waller lowered Wimberly’s bond to $5,000 the Friday before last week’s trial. That would have required $500 cash to get out.

There was no plea offer from the district attorney’s office, Gilmour said, and she’s not sure she would have advised Wimberly to accept one if it were available.

“This was just a silly case,” Gilmour said. “Even if he pleaded, he would have gotten 12 months probation, and if anything happened, he would have his probation revoked and gone to prison for about 11 months. There’s no way this guy needs to be on probation or facing prison.”

After last week’s trial, Wimberly was released from jail Thursday.