Opinion
No. 108,573.
2013-08-16
STATE of Kansas, Appellee, v. Milton F. RUIZ, Appellant.
Appeal from Saline District Court; Rene S. Young, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before MALONE, C.J., ATCHESON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Defendant Milton Ruiz has appealed the decision of the Saline County District Court revoking his probation. We granted Ruiz' motion for summary disposition under K.S.A.2012 Supp. 21–6820(g) and (h) and Supreme Court Rule 7.041a (2012 Kan. Ct. R. Annot. 62). We find no error in the district court's disposition of the revocation.
In 2002, Milton Ruiz entered an Alford plea to and was found guilty of aggravated battery. In conformity with a plea agreement between the State and Ruiz, the district court imposed a prison sentence of 13 months and placed him on probation for 24 months. Ruiz was immediately taken into federal custody and wound up getting a 120–month sentence on federal criminal charges. Because Ruiz was in federal prison, he did not report as directed on his probation in this case. An arrest warrant for Ruiz was promptly filed on the probation violation.
When Ruiz completed his federal sentence, he was returned to the Saline County jail in April 2012 based on that arrest warrant and an outstanding bad check charge. Ruiz did not dispute that he failed to report on the probation.
Ruiz sought to dismiss the probation revocation as violating his constitutional right to due process as protected in the Fourteenth Amendment to the United States Constitution. The district court denied the motion to dismiss. In State v. Hall, 287 Kan. 139, 153–54, 195 P.3d 220 (2008), the Kansas Supreme Court held that delay alone in prosecuting an otherwise timely filed warrant for a probation violation against a defendant in custody on another criminal conviction does not typically amount to a due process violation. The court recognized actual prejudice to the defendant from the delay might warrant relief in certain circumstances. 287 Kan. at 154. Ruiz neither presented evidence of nor argued that he suffered actual prejudice because of the delay. The district court properly denied the due process challenge.
Ruiz asked the district court to shorten his original sentence. Noting the seriousness of the crime of conviction, which had originally been charged as an attempted second-degree murder, the district court declined to reduce Ruiz' sentence. The sentence reflects a presumptive guidelines punishment, so we lack jurisdiction to consider the denial of the request for a modification. See K.SA. 21–4721(c)(l) (now codified as K.S.A.2012 Supp. 21–6820(c)); State v. Sprung, 294 Kan. 300, 317, 277 P.3d 1100 (2012).
The district court gave Ruiz the option of being reinstated on probation or serving the remainder of the underlying sentence on the aggravated battery. With the time Ruiz had spent in jail awaiting disposition of the original charge and the probation revocation, he had only a few months left to serve and opted to do that rather than continue on probation. The district court did not abuse its discretion in acceding to his request. See State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012) (outlining bases on which a district court may abuse its discretion).
Affirmed in part and dismissed in part.