State v. FergusonState v. Ferguson
- Reporters:
- , ,
- Before:
- Larson
The opinion of the court was delivered by
Larson, J.:
Yоlanda D. Ferguson appeals the revocation of her probation and subsequent order to serve the underlying sentence. She contends the trial court did not have jurisdiction to revoke her probation under
On May 22,1998, Ferguson was sentenced to 6 months in prison and the underlying sentence was suspended with the condition that she successfully complete 24 months’ probation on her conviction of attempted forgery, a severity level 10 crime. See
On May 26, 2000, the trial court held a probation revocation hearing at which Ferguson appeared. She moved to dismiss, contending she was no longer on probation because the provisions of L. 2000, ch. 182, § 6, which had gone into effect the previous day, May 25, 2000, upon their publication in the Kansas Register, had retroactively reduced her probation period to 12 months from May 22, 1998. After argument, the trial court denied her motion.
Uncontroverted evidence was introduced through the PO’s testimony of Ferguson’s violations of (1) and (3) of the motion to revoke probation. The PO further testified that Ferguson had not made the restitution payment due on May 1, 1999, and no other payments between then and the date of the hearing. Therе was no evidence concerning the alleged shoplifting charge.
Ferguson testified but did not refute the State’s evidence. She spoke of health problems and being unable to work full time. She said she had substantial hospital bills and was having trouble “making ends meet.” The PO had earlier testified that Ferguson had been requested to substantiate her health problems but had not done so.
The trial court found that Ferguson had violated the conditions of her probation and revoked the prоbation. Ferguson was then ordered to serve her underlying sentence of 6 months with the Secretary of Corrections. Ferguson appealed and has been released on bond.
Ferguson first argues that the trial court lacked jurisdiction, under the newly amended statute, to revoke her probation. She contends that
Whether jurisdiction exists to revoke probation is a question of law over which our scope of review is unlimited. State v. Williams, 20 Kan. App. 2d 142, 145, 884 P.2d 743 (1994).
In order to better understand Ferguson’s argument, some statutory background must be given. Ferguson was convicted of attempted forgery, which is a severity lеvel 10 crime.
On May 25, 2000, an amendment to
“(c) For all crimes committed on or after July 1,1993, the duration of probation in felony casеs sentenced for the following severity levels on the sentencing guidelines grid for nondrug crimes and tire sentencing guidelines grid for drug crimes is as follows:
(3) In felony cases sentenced at severity levels 9 and 10 on the sentencing guidelines grid for nondrug crimes and severity level 4 on the sentencing guidelines grid for drug crimes, if a nonprison sanction is imposed, the court shall order the defendant to serve a period of probation, or assignment to a community correctional services progrаm as provided underK.S.A. 75-5291 et seq., and amendments thereto, of up to 12 months in length.
(5) If the court finds and sets forth with particularity the reasons for finding that die safety of the members of the public will be jeopardized or that the welfare of die inmate will not be served by die length of the probation terms providеd in subsections (c)(3) and (c)(4), die court may impose a longer period of probation. Such an increase shall not be considered a departure and shah not be subject to appeal.
{!)... If the defendant is ordered to pay full or partial restitution, the period may be continued as long as the amount of restitution ordered has not been paid.
(8) The court may modify or extend die offender’s period of supervision, pursuant to a modification hearing and necessity. Such extensions may be made for a maximum period of five years or the maximum period of the prison sentence diat could be imposed, whichever is longer, inclusive of die original supervision term.
“(d) The provisions of subsectiоn (c), as amended by this act, shall be applied retroactively. The sentencing court shall direct that a review of all persons serving a nonprison sanction for a crime in severity levels 8, 9 or 10 of the sentencing guidelines grid for nondrug crimes or a crime in severity levels 3 or 4 of the sentencing guidelines grid for drug crimes be conducted. On or before September 1, 2000, the duration of such persons probation shall be modified in conformity with the provisions of subsection (c).”K.S.A. 2000 Supp. 21-4611(c) and (d). (Emphasis added.)
Becausе the hearing on the motion to revoke took place 1 day after the amendments went into effect, Ferguson primarily relies on the language of 21-4611(d) that the “provisions of subsection (c), as amended by this act, shall be applied retroactively.” Her argument is based on several presumptions, the failure of any one of which results in- failure of her entire argument. First, she states that the duration of her probation under the new act should have only been 12 months in length. She is correct. As a severity level 10 nondrug felony offender,
Second, her presumption that the amendment is to have retroactive effect is correct, but not in the absolute sense.
Also, it is 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.
Williams,
20 Kan. App. 2d 142, Syl. ¶ 1. Proceedings were started against Ferguson on both August 9,1999, and May 5, 2000, during the pendency of her 24-month probation period and well before the effective date of
Ferguson’s argument that her рrobation was automatically reduced to 12 months also fails in light of the fact the order revoking her probation did in fact continue the 24-month probation period, which the trial court had authority to do.
In addition, the clear language of
The trial court properly retained jurisdiction over Ferguson for the purposes of considering whether her probation should be revoked.
When we review the decision of a sentencing court to revoke probation after evidence of a violation is introduced, we normally overturn the lower court’s actiоns only if there is abuse of discretion. Swope v. Musser, 223 Kan. 133, 136, 573 P.2d 587 (1977). It is an abuse of discretion when the court “automatically” revokes the probation due to nonpayment of restitution. See City of Wichita v. Lucero, 255 Kan. 437, 448-50, 874 P.2d 1144 (1994); State v. Higgins, 240 Kan. 756, 759-60, 732 P.2d 760 (1987); State v. Duke, 10 Kan. App. 2d 392, 393, 699 P.2d 576 (1985).
However, the record reveals several reasons beyond nonpayment of restitution were available for the trial court to revoke Ferguson’s probation. Her case is similar to the facts upon which we decided State v. Reed, 254 Kan. 52, 865 P.2d 191 (1993). In Reed, the defendant argued that her probation was revoked solely for nonpаyment of restitution without following the procedures set forth in Duke. Evidence was introduced in the lower court that the defendant had failed to pay restitution, had five absences from the New Start program, had failed to seek and obtain emрloyment, and had made an agreement to forgo collection of support payments from her ex-husband so that he would not seek joint custody of their children. The trial court specifically noted in its ruling “Reed’s failure to attend therаpy, her failure to faithfully seek and obtain employment, and her failure to cooperate with SRS.” 254 Kan. at 60. Using an abuse of discretion standard, we found that the trial court’s revocation of Reed’s probation was proper. We said: “Duke is distinguishablе from the present case because here the trial court’s decision was based upon more than just Reed’s failure to make restitution.” 254 Kan. at 60.
Here, there were several factors supporting the revocation of Ferguson’s probation. Not only did she fail to make any payments due on or after May 1999, but she also failed to report for two required drug screens. In fact, she did not report for her monthly drug screens for the 12 months prior to her probation revocation hearing. In addition, she failed to report to her PO in June and
Affirmed.