Source or Prior Law:

62-2244.

Law Review and Bar Journal References:

Subsection (2) mentioned as not applicable to county courts in certain instances, William M. Ferguson, 39 J.B.A.K. 351, 353 (1970).

Judges must spend more time on probation matters which add to delay in other court matters, George S. Reynolds, 12 W.L.J. 12, 15 (1972).

"Kansas Diversion: Defendant's Remedies and Prosecutorial Opportunities," Joseph Brian Cox, 20 W.L.J. 344, 356, 358, 359 (1981).

"Parole in Kansas," Carla J. Stovall, 60 J.K.B.A. No. 7, 27, 28 (1991).

"Criminal Procedure Survey of Recent Cases," 50 K.L.R. 901 (2002).

"2002 Legislative Wrap Up," Paul T. Davis, 71 J.K.B.A. No. 7, 15 (2002).

Attorney General's Opinions:

Detention of suspected parole violators. 80-227.

Classification of crimes and penalties; effect of legislation providing for reduction of sentences. 84-57.

Reporting of abuse or neglect of children; court services officers. 89-100.

Community correctional officer held not a law enforcement officer under law enforcement training act. 96-33.

Community correctional officer is not a "law enforcement officer" under private investigative or security operations act. 98-27.

Claims arising out of court service officer's use of personal motor vehicle while acting within scope of employment; state liability under tort claims act; reimbursement for additional insurance premiums. 1999-17.

CASE ANNOTATIONS

1. Revocation of probation under prior law (K.S.A. 62-2244) not subject to collateral attack under K.S.A. 60-1507. Stewart v. State, 206 Kan. 147, 150, 476 P.2d 652.

2. Personal service requirement waived by defendant's appearance at revocation hearing without objecting to proceeding or requesting continuance. State v. Dunham, 213 Kan. 469, 477, 479, 517 P.2d 150.

3. Hearing hereunder not reviewable by K.S.A. 60-1507 motion absent irregularities of constitutional proportion. Toman v. State, 213 Kan. 857, 518 P.2d 502.

4. Revocation of parole due to conviction of crime upheld even though appeal pending. State v. Woods, 215 Kan. 295, 296, 524 P.2d 221.

5. Section meets all constitutional requirements imposed upon proceedings for revocation of probation or suspended sentence. State v. Rasler, 216 Kan. 292, 532 P.2d 1077.

6. Time spent under supervised probation not required to be credited as time served when probation revoked. State v. Snook, 1 Kan. App. 2d 607, 608, 571 P.2d 78.

7. Applied; probation not revocable where no showing of failure to comply with probation terms. Swope v. Musser, 223 Kan. 133, 134, 573 P.2d 587.

8. Section applied; prosecution for felony murder. State v. McCowan, 223 Kan. 329, 573 P.2d 1029.

9. Applied; due process rights not violated by not affording probation hearing prior to imposition of sentence. State v. DeCourcy, 224 Kan. 278, 280, 580 P.2d 81.

10. Records from outside source held inadmissible where failure to comply with section. State v. Guhl, 3 Kan. App. 2d 59, 61, 588 P.2d 957.

11. When probation is revoked, jail time credit may not be given by court for time in halfway house. State v. Babcock, 226 Kan. 356, 362, 597 P.2d 1117.

12. Where defendant offers testimony indicating parole violation after trial court allows improper hearsay testimony over objection, defendant has waived hearsay objection and finding of violation will not be reversed. State v. Carter, 5 Kan. App. 2d 201, 204, 207, 208, 614 P.2d 1007.

13. Preliminary hearing not required in probation revocation proceedings where probationer not in custody pending hearing. State v. Malbrough, 5 Kan. App. 2d 295, 297, 615 P.2d 165.

14. Jurisdiction lacking for appeal of conviction of involuntary manslaughter; sentence deferred, not suspended. State v. Lottman, 6 Kan. App. 2d 741, 742, 633 P.2d 1178 (1981).

15. Trial court erred in summarily denying subpoenas for all defendant's witnesses. State v. Jackson, 234 Kan. 84, 88, 670 P.2d 1327 (1983).

16. Trial court must consider reasons for probation violation before ordering revocation thereof. State v. Duke, 10 Kan. App. 2d 392, 393, 699 P.2d 576 (1985).

17. Cited; jail time credit (K.S.A. 21-4614) while in community corrections facility on probation, authority to commit discussed. State v. Fowler, 238 Kan. 326, 337, 710 P.2d 1268 (1985).

18. Cited; conduct of proceedings hereunder discussed; judicial misconduct examined. State v. Starbuck, 239 Kan. 132, 133, 715 P.2d 1291 (1986).

19. Probation may be summarily revoked when based on misrepresentations made at sentencing; new sentence cannot be increased. Andrews v. State, 11 Kan. App. 2d 322, 720 P.2d 227 (1986).

20. Cited; assessment of extradition expenses as part of costs examined. State v. Dean, 12 Kan. App. 2d 321, 327, 743 P.2d 98 (1987).

21. Cited; appeal times controlling (K.S.A. 22-3608) with and without imposition of sentence (K.S.A. 21-4603) determined. State v. Wagner, 242 Kan. 329, 332, 747 P.2d 114 (1987).

22. Statute affects defendant's substantive rights; 1990 amendment must be applied prospectively not retroactively. State v. Freeman, 249 Kan. 768, 822 P.2d 68 (1991).

23. Time during which probation may be revoked examined; probation period held limited to maximum sentence time. State v. Grimsley, 15 Kan. App. 2d 441, 443, 808 P.2d 1387 (1991).

24. Motion for revocation filed by the state, before resolution of the pending criminal charge was appropriate. State v. Yura, 250 Kan. 198, 199, 200, 202, 206, 207, 208, 825 P.2d 523 (1992).

25. Whether the exclusionary rule applies in probation revocation hearing where probationer subjected to unlawful search examined. State v. Turner, 19 Kan. App. 2d 535, 540, 873 P.2d 208 (1994).

26. Whether defendants whose sentences are converted to guidelines remain subject to postrelease supervision upon release examined. Phillpot v. Shelton, 19 Kan. App. 2d 654, 662, 875 P.2d 289 (1994).

27. Whether jurisdiction exists to revoke probation when probation term expires after proceedings initiated but before revocation order issued examined. State v. Williams, 20 Kan. App. 2d 142, 144, 147, 884 P.2d 743 (1994).

28. Whether judge can set less severe penalty than life imprisonment for class A felony probation revocation examined. State v. Van Winkle, 256 Kan. 890, 898, 889 P.2d 749 (1995).

29. Whether good cause was shown for denying defendant the right to confront witnesses in probation revocation hearing examined. State v. Miller, 20 Kan. App. 2d 378, 384, 869 P.2d 766 (1995).

30. Whether imposing imprisonment for presumed nonprison felony defendant committed on probation for felony constitutes departure examined. State v. Dillard, 20 Kan. App. 2d 660, 661, 890 P.2d 1248 (1995).

31. Whether judge erred by failing to set forth substantial and compelling reasons for dispositional departure examined. State v. Rhoads, 20 Kan. App. 2d 790, 800, 892 P.2d 918 (1995).

32. Conversion of defendant's sentence to imprisonment instead of probation for offenses committed on parole constitutes dispositional departure. State v. Trimble, 21 Kan. App. 2d 32, 34, 894 P.2d 920 (1995).

33. Defendant does not have right to allocution in parole revocation hearing. State v. Caruthers, 22 Kan. App. 2d 910, 911, 924 P.2d 1278 (1996).

34. Probation may be summarily revoked without evidence of terms violated when defendant granted probation based on misrepresentations. State v. Lumley, 25 Kan. App. 2d 366, 369, 963 P.2d 1238 (1998).

35. Court services officer may initiate probation revocation proceedings in district court, and district court, sua sponte, may issue warrant for violation of defendant's probation. State v. Wonders, 27 Kan. App. 2d 588, 8 P.3d 8 (2000).

36. In hearing to revoke probation, defendant entitled to only minimal due process rights; right to confront witness may be denied for good cause shown. State v. Graham, 272 Kan. 2, 30 P.3d 310 (2001).

37. Defendant not subject to postrelease supervision upon completion of sentence imposed as result of revocation of probation. State v. Williams, 30 Kan. App. 2d 28, 36 P.3d 859 (2001).

38. Full panoply of rights in criminal case not applicable in probation revocation hearing; no substantial prejudice by court's failure to advise of right to present evidence and cross examine witness. State v. Billings, 30 Kan. App. 2d 236, 39 P.3d 682 (2002).

39. Upon revocation of probation, sentencing court has jurisdiction to impose a lesser sentence. State v. Hall, 30 Kan. App. 2d 669, 46 P.3d 561 (2002).

40. Motion to revoke probation must be filed during term of probation unless warrant, petition or show cause order has been filed prior to expiration of period. State v. Rocha, 30 Kan. App. 2d 817, 48 P.3d 683 (2002).

41. Motion to revoke probation must be filed within term of probation. State v. Gordon, 30 Kan. App. 2d 852, 50 P.3d 100 (2002).

42. Search by officers finding cocaine in execution of warrant, later determined invalid, is not invalidated as officers were acting in good faith. State v. Mansaw, 32 Kan. App. 2d 1011, 93 P.3d 737 (2004).

43. Conditional probation violator is to be assigned to community corrections even if original sentence was a departure. State v. Miller, 32 Kan. App. 2d 1099, 95 P.3d 127 (2004).

44. Probation may not be revoked based on act that occurred prior to being placed on probation. State v. Gary, 34 Kan. App. 2d 599, 121 P.3d 1000 (2005).

45. Error for trial court in probation violation hearing not to continue hearing forcing defendant to appear pro se. State v. Young, 35 Kan. App. 2d 107, 128 P.3d 1004 (2006).

46. Probation may not be revoked based upon act that occurred prior to being placed on probation. State v. Gary, 282 Kan. 232, 241, 144 P.3d 644 (2006).

47. District court lacked jurisdiction where state filed motion to revoke probation three months after probation ended; scheduled end of probation is not extended by condition in journal entry that is not announced from the bench. State v. Baldwin, 37 Kan. App. 2d 140, 144, 150 P.3d 325 (2007).

48. Court, upon revoking probation, may impose defendant's original sentence or any lesser sentence. Abasolo v. State, 284 Kan. 299, 303, 305, 160 P.3d 471 (2007).

49. Probation can be revoked upon commission of another crime even if never charged or if acquitted. State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007).

50. State's 6-year delay in prosecuting a probation violation violated defendant's due process. State v. Hall, 38 Kan. App. 2d 465, 167 P.3d 382 (2007).

51. Conduct after probation term cannot serve as basis for probation violation. State v. Skolaut, 286 Kan. 219, 221, 226 to 231, 182 P.3d 1231 (2008).

52. Cited in dissent opinion where majority of court held juveniles have constitutional right to jury trials. In re L.M., 286 Kan. 460, 484, 186 P.3d 164 (2008).

53. Cited; imposition of BIDS attorney fees must be appealed within 10 days of judgment otherwise no appellate jurisdiction. State v. Ehrlich, 286 Kan. 923, 925, 926, 189 P.3d 491 (2008).

54. Cited; probation violation and incarceration for new felony; state does not waive probation violation if it lodges detainer. State v. Hall, 287 Kan. 139, 143, 144, 195 P.3d 220 (2008).

55. Cited; no jail time credit for time in inpatient treatment required by mandatory drug abuse treatment program. State v. Preston, 287 Kan. 181, 185, 187, 195 P.3d 240 (2008).

56. Conviction under K.S.A. 65-4160; request to file direct appeal of probation revocation out of time; appeal moot. State v. Johnson, 39 Kan. App. 2d 438, 442, 180 P.3d 1084 (2008).

57. Cited in discussing the term of duration for drug treatment and for probation. State v. Holt, 39 Kan. App. 2d 741, 743, 186 P.3d 803 (2008).

58. Defendant who fails to participate in ordered drug abuse treatment program is subject to serve underlying prison sentence. State v. Bee, 288 Kan. 733, 207 P.3d 244 (2009).

59. Principles regarding due process for probation revocation discussed and applied. State v. Curtis, 42 Kan. App. 2d 132, 209 P.3d 753 (2009).

60. District court had authority to reduce sentence upon revoking defendant's probation. State v. Cisneros, 42 Kan. App. 2d 376, 212 P.3d 246 (2009).

61. When the pronouncement from the bench is a sentence of probation that is stayed for a specific period, the probationary term begins to run immediately upon expiration of the stay. McCormick v. Kline, 572 F.3d 841 (10 th Cir. 2009).

62. The state may revoke a defendant's probation only during the probationary term. McCormick v. Kline, 572 F.3d 841 (10 th Cir. 2009).

63. Illegal sentence properly corrected by reinstating the postrelease supervision period. State v. McKnight, 42 Kan. App. 2d 945, 219 P.3d 825 (2009).

64. District court erred in failing to properly advise defendant of his right to counsel at probation violation hearing. State v. Miller, 44 Kan. App. 2d 438, 237 P.3d 1254 (2010).

65. District court not required to make findings before ordering prison sentence under facts of the case. State v. Grossman, 45 Kan. App. 2d 420, 248 P.3d 776 (2011).

66. Trial court has authority to impose any sentence less than that originally imposed. State v. McKnight, 292 Kan. 776, 257 P.3d 339 (2011).

67. Defendants facing probation revocation and applying for court-appointed counsel are not required to pay the BIDS application fee. State v. Long, 45 Kan. App. 2d 938, 257 P.3d 792 (2011).

68. District court may impose a lesser sentence without stating reasons. State v. Ardry, 295 Kan. 733, 286 P.3d 207 (2012).

69. Under extended jurisdiction juvenile prosecution statute, the court did not have the discretion to modify an adult sentence when the juvenile violated the conditions of parole. State v. J.D.H., 48 Kan. App. 2d 454, 294 P.3d 343 (2013).

70. Subsection (c) applies to probation violations committed by defendant on or after July 1, 2013. State v. Kurtz, 51 Kan. App. 2d 50, 57, 340 P.3d 509 (2014).

71. Graduated sanctions created in statute do not apply to probation violations occurring before July 1, 2013, regardless of sentencing date. State v. McGill, 51 Kan. App. 2d 92, 95, 340 P.3d 515 (2015).

72. Finding that a parolee has "absconded" requires more than the parolee's failure to report to the parolee's supervisor. State v. Huckey, 51 Kan. App. 2d 451, 457, 348 P.3d 997 (2015).

73. No error where district court reinstated prison sentence with no intermediate sanction after probationer committed six technical violations and admitted to committing a new felony. State v. Brown, 51 Kan. App. 2d 876, 885, 357 P.3d 296 (2015).

74. Sentencing court may either impose an intermediate sanction or set forth with particularity its reasons for invoking the exceptions from an intermediate sanction under K.S.A. 22-316(c)(9). State v. McFeeters, 52 Kan. App. 2d 45, 49, 362 P.3d 603 (2015).

75. State has the burden of establishing probation violations. State v. Lloyd, 52 Kan. App. 2d 780, 782, 375 P.3d 1013 (2016).

76. The state is required to prove a probation violation by a preponderance of the evidence, and lower court erred when it used the lower standard of a preliminary hearing's probable cause. State v. Lloyd, 52 Kan. App. 2d 780, 783, 375 P.3d 1013 (2016).

77. When defendant is serving probation in more than one case at the same time and a district court enters sanctions in more than one case, the sanctions must be imposed concurrently. State v. Allen, 55 Kan. App. 2d 87, 90, 407 P.3d 661 (2017).

78. A court cannot bypass intermediate sanctions without making particularized findings of a threat to the safety of the public or offender welfare. State v. Duran, 56 Kan. App. 2d 1268, 1277, 445 P.3d 761 (2019).

79. An offender must receive credit for jail time served while awaiting disposition of a probation violation motion under K.S.A. 22-3716(c)(11). State v. Chardon, 57 Kan. App. 2d 177, 449 P.3d 1224 (2019).

80. The provision allowing a court to revoke a probationer's probation without first imposing graduated sanctions if the probation was granted as a result of a dispositional departure is not retroactive. State v. Coleman, 311 Kan. 332, 337, 460 P.3d 828 (2020).

81. The 2019 amendment to the intermediate sanctioning scheme does not apply retroactively. State v. Dominguez, 58 Kan. App. 2d 630, 637, 473 P.3d 932 (2020).

82. A district court's noncompliance with the graduated sanctioning scheme set forth in K.S.A. 22-3716 does not fall within the definition of an illegal sentence under K.S.A. 22-3504. State v. McCroy, 313 Kan. 531, 539, 486 P.3d 618 (2021).

83. When the district court revokes probation and imposes a prison sentence on a felony defendant under subsection (c), then subsection (f) prevents the sentencing court from altogether eliminating a postrelease supervision period. State v. Sheets, 60 Kan. App. 2d 378, 494 P.3d 168, 171 (2021).

84. District court erred by revoking probation where offender had not first served at least one jail sanction followed by at least one 120-day or 180-day sanction in the custody of the secretary of corrections. State v. Wilson, 314 Kan. 517, 523, 501 P.3d 885 (2022).

85. Court acted without authority by revoking probation based on arrest and detain notice from court services officer that was not filed during defendant's probation term. State v. Darkis, 314 Kan. 809, 813, 502 P.3d 1045 (2022).