Opinion
No. 107,725.
2013-01-18
STATE of Kansas, Appellee, v. Brock ERICKSON, Appellant.
Appeal from Dickinson District Court; Benjamin J. Seton, Judge.
Submitted for summary disposition pursuant to K.S A.2011 Supp. 21–6820(g) and (h).
Before MALONE, C.J., HILL and Bruns, JJ.
MEMORANDUM OPINION
PER CURIAM.
Brock Allen Erickson appeals the district court's decision reinstating his probation with the condition that he serve 5 days in jail as a sanction for his probation violation. We granted Erickson's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). The State filed a response and joined in Erickson's motion for summary disposition.
On June 23, 2010, Erickson pled guilty to nonresidential burglary, theft, obstructing legal process or official duty, making a false information, and driving while habitual violator. On August 4, 2010, Erickson received a controlling sentence of 27 months' imprisonment plus 12 months in jail, and he was placed on probation for 24 months with community corrections.
On February 28, 2011, the State filed a motion to revoke Erickson's probation for failing to report to his supervisor as directed. On May 2, 2011, Erickson appeared in court and stipulated to the probation violation. The district court reinstated Erickson's probation and extended the community corrections supervision for 36 months. But as a condition of probation, the district court ordered Erickson to serve 5 days in the Dickinson County Jail, to be served upon his release from the Department of Corrections in a pending case in Saline County. On August 10, 2011, Erickson filed a pro se motion for reconsideration of the 5–day jail sanction. The district court held a hearing on August 17, 2011, and denied the motion for reconsideration. Erickson filed a notice of appeal on August 18, 2011.
On appeal, Erickson's motion for summary disposition claims that the district court “abused its discretion in ordering the five day sanction because Mr. Erickson was already facing a significant sentence in a different case.” The State's response requests that the district court's decision be affirmed.
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).
This court lacks jurisdiction to review the district court's May 2, 2011, order imposing a 5–day jail sanction as a condition of reinstating Erickson's probation because Erickson failed to file a timely notice of appeal from that order. See K.S.A.2010 Supp. 22–3608(c). Erickson does not argue that the district court erred in denying his motion for reconsideration on August 17, 2011. An issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Also, Erickson has failed to provide a transcript of the August 17, 2011, hearing. The party claiming an error occurred has the burden of designating a record that affirmatively shows prejudicial error. State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012).
Dismissed.