Opinion
No. 108,496.
2013-04-12
STATE of Kansas, Appellee, v. L. Rico L. FAUDEL, Appellant.
Appeal from Shawnee District Court; David B. Debenham, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before MALONE, C.J., PIERRON and GREEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
L. Rico Lamont Faudel appeals the district court's decision revoking his probation and ordering him to serve his underlying sentence. We granted Faudel's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041 A (2012 Kan. Ct. R. Annot. 62). The State filed a response and joined in Faudel's motion for summary disposition.
On November 22, 2011, Faudel pled guilty to one count of attempted robbery and one count of attempted aggravated burglary. On December 20, 2011, the district court imposed a controlling sentence of 36 months' imprisonment and granted probation with community corrections for 24 months.
On February 15, 2012, the district court revoked and reinstated Faudel's probation. On July 11, 2012, Faudel again stipulated to violating his probation by failing to report and failing to provide his address to his probation officer. Regarding disposition, Faudel requested reinstatement to probation. Instead, the district court revoked Faudel's probation and ordered him to serve his underlying sentence. Faudel timely appealed.
On appeal, Faudel claims the district court erred by revoking his probation and ordering him to serve his underlying sentence. Faudel acknowledges that the decision to revoke probation is within the sound discretion of the district court.
Probation from service of a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege, not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven a violation of the conditions of probation, probation revocation is within the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the district court, then it cannot be said that the district court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Here, the district court noted that it had revoked and reinstated Faudel's probation at a prior hearing. After recounting the history of Faudel's case, the judge concluded, “I'm not willing to give you another opportunity for probation.” Based on the record on appeal, the district court's decision to revoke Faudel's probation was not arbitrary, fanciful, or unreasonable. We conclude the district court did not abuse its discretion by revoking Faudel's probation and ordering him to serve his underlying sentence.
Affirmed.