State v. Gordon

50 P.3d 100, 30 Kan. App. 2d 852, 2002 Kan. App. LEXIS 656
CourtCourt of Appeals of Kansas
DecidedJuly 19, 2002
DocketNo. 86,624; No. 86,625
StatusPublished
Cited by5 cases

This text of 50 P.3d 100 (State v. Gordon) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gordon, 50 P.3d 100, 30 Kan. App. 2d 852, 2002 Kan. App. LEXIS 656 (kanctapp 2002).

Opinion

Wahl, J.:

Defendants Michael Leon Gordon and James R. Scribner separately appeal the district court’s rulings extending their probation terms. Each argues that the district court violated his statutory procedural rights by improperly extending probation without holding a hearing and by extending probation beyond the statutory limit of 5 years. Each also contends that the district court violated his constitutional rights by failing to hold a hearing and by basing the extension of probation upon his failure to pay restitution. The two cases have been consolidated for appeal.

While the cases involve many of the same issues, different circumstances and events led to those issues. Hence, the salient facts of each case will be set out separately.

State v. Michael Leon Gordon, No. 86,624

On July 21, 1995, Gordon entered a plea of guilty to a count of attempted theft, a severity level 10 felony. Gordon had a criminal history of “C.” The district court sentenced Gordon to an underlying sentence of 9 to 11 months but granted a downward dispositional departure, suspending the prison sentence in favor of 24 months’ probation. The condition of probation included the payment of $13,286.69 in restitution payable at the rate of $100 per month beginning on November 1, 1995.

The State moved to revoke Gordon’s probation on March 21, 1996. After a hearing on May 2, 1996, the district court granted Gordon’s request and reinstated probation for an additional 24 months. Gordon was to make monthly restitution payments.

On May 28, 1998, the State filed a motion to revoke Gordon’s probation on the ground that he was delinquent in his restitution payments. On July 10, 1998, a hearing was held on the State’s motion. The district court found a violation of the conditions of probation, but again reinstated the probation for an additional 24 months.

By July 10, 2000, Gordon had not completed payments of his restitution and court costs, so the Johnson County Department of Corrections requested an extension of his probation until restitution payments were completed. The district court, without holding [854]*854a hearing, ordered that Gordon’s probation would continue so long as his restitution was still unpaid.

State v. James R. Scribner, No. 86,625

On October 27,1994, James R. Scribner entered a plea of guilty to one count of attempted theft, a severity level 10 felony. Scribner had a criminal history of “C.” On February 2, 1995, the district court sentenced Scribner to an underlying sentence of 6 months but suspended the sentence in favor of 36 months’ probation. One of the conditions of probation was payment of $8,801 in restitution plus court costs, all to be paid in monthly payments of $100.

On May 17,1996, the court, after a hearing on the State’s motion to revoke Scribner’s probation, revoked probation, then reinstated probation for an additional 36 months. Again, the court ordered Scribner to malee restitution payments of $100 per month.

On June 25, 1996, a bench warrant was executed for Scribner’s arrest due to alleged violations of his probation. On October 24, 1997, after a hearing, the court again revoked and reinstated probation, extending it another 36 months. Scribner was ordered to make restitution payments of $100 per month.

On December 17, 1998, the State filed a motion to revoke probation. This motion was later withdrawn at the request of the State. An order to show cause why probation should not be revoked was issued on July 26, 1999, but it was later withdrawn.

On August 25, 2000, Scribner was ordered to appear on a State’s motion to extend his probation. On August 28, 2000, based upon a request from the Johnson County Department of Corrections, the district court entered an ex parte order extending Scribner’s probation until October 24, 2002, or until he paid the remaining balance of the restitution ordered.

On October 19, 2000, Scribner requested the district court for a discharge from his probation. Gordon followed with his motion for discharge from probation on October 27, 2000. After a joint hearing, the district court denied the motions of both defendants. The defendants appealed and their cases have been consolidated for this appeal.

[855]*855Although neither the defendants nor the State raises the issue, a review of the record indicates a problem with this court’s jurisdiction to consider the appeal. If the record on appeal reveals a potential lack of jurisdiction for the appeal, the appellate court has a duty to question jurisdiction upon its own initiative. State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999). The existence of jurisdiction is a question of law over which an appellate court has unlimited review. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).

After the State moved to revoke Gordon’s probation, the district court reinstated the probation for 24 months on May 2,1996. Gordon’s term of probation ended on May 2, 1998. The State did not file its next motion to revoke probation until May 28, 1998.

For a district court to retain jurisdiction to revoke probation, the revocation proceedings must be initiated within the probation period. In State v. Ferguson, 271 Kan. 613, 617, 23 P.3d 891 (2001) (citing State v. Williams, 20 Kan. App. 2d 142, 884 P.2d 743 [1994]), the Supreme Court stated: “[I]tis well established in Kansas that a trial court has jurisdiction to revoke probation as long as the proceedings are started before expiration of the probation term.” Such revocation proceedings are initiated by the filing of a warrant, petition, motion, or show cause order seeking the revocation of probation.

The motion to revoke Gordon’s probation was not filed within the probation period. The district court lost jurisdiction to revoke and reinstate Gordon’s probation as of May 2, 1998. Any subsequent order pertaining to Gordon’s probation is void ab initio. State v. Farmer, 16 Kan. App. 2d 419, 422, 824 P.2d 998 (1992).

The State argues that the case against Gordon was saved by K.S.A. 22-3716(d), which provides:

“The court shall have 30 days following the date probation, assignment to a community correctional service program, suspension of sentence or a nonprison sanction was to end to issue a warrant for the arrest or notice to appear for the defendant to answer a charge of a violation of the conditions of probation, assignment to a community correctional service program, suspension of sentence or a nonprison sanction.”

Upon a cursoiy reading, the Supreme Court holding in Ferguson appears to be in direct conflict with this statute, but they are wholly [856]*856compatible. The pleading seeking the revocation of a defendant’s probation must be filed during the term of the probation. The court then has 30 days after the termination of the probationary period to cause the defendant to appear for a hearing.

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Related

State v. Hambright
447 P.3d 972 (Supreme Court of Kansas, 2019)
State v. Hambright
388 P.3d 613 (Court of Appeals of Kansas, 2017)
State v. Schad
206 P.3d 22 (Court of Appeals of Kansas, 2009)
State v. Gary
121 P.3d 100 (Court of Appeals of Kansas, 2005)
State v. Gordon
66 P.3d 903 (Supreme Court of Kansas, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
50 P.3d 100, 30 Kan. App. 2d 852, 2002 Kan. App. LEXIS 656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gordon-kanctapp-2002.