Opinion
112,686.
05-29-2015
STATE of Kansas, Appellee, v. Charles CASTILLO, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Charles Castillo appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence. We granted Castillo's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041 A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the district court's judgment be affirmed.
On February 19, 2013, Castillo pled guilty to one count each of possession of cocaine, criminal possession of a firearm, and assault. On May 24, 2013, the district court imposed a controlling sentence of 38 months' imprisonment but granted a dispositional departure to probation with community corrections for 12 months. Castillo did not appeal his sentence.
On June 24, 2013, the State filed a probation violation warrant alleging that Castillo had committed a new offense. At a hearing on November 5, 2013, Castillo admitted to an amended allegation of committing disorderly conduct in Lyon County, and the district court extended Castillo's probation for 12 months from the date of the hearing.
On April 11, 2014, the State filed a second warrant alleging that Castillo had violated his probation on numerous grounds. At a hearing on June 24, 2014, Castillo stipulated to several violations of his probation, specifically admitting that he tested positive for the use of drugs, that he failed to appear for appointments with his intensive supervision officer, and that he absconded from probation. Castillo asked for reinstatement to probation, arguing that he needed treatment for an ongoing drug problem. The district court denied the request for reinstatement, made absconder findings, revoked probation, and ordered Castillo to serve his underlying prison sentence. Castillo timely appealed his probation revocation.
On appeal, Castillo claims the district court erred by revoking his probation and ordering him to serve his underlying prison sentence. Castillo acknowledges that the decision to revoke probation rests within the district court's sound discretion.
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). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Here, the district court gave Castillo an opportunity to stay out of prison by granting a dispositional departure to probation. The district court extended the probation on Castillo's first violation. Upon violating probation for the second time on numerous grounds, the district court revoked probation and ordered Castillo to serve his original sentence. The district court's decision to revoke Castillo's probation was not arbitrary, fanciful, or unreasonable, and the decision was not based on an error of law or fact. See Ward, 292 Kan. at 550. Thus, we conclude the district court did not abuse its discretion in revoking Castillo's probation and ordering him to serve his underlying prison sentence.
Affirmed.