Opinion
No. 108,468.
2013-08-9
STATE of Kansas, Appellee, v. Tyler R. HALL, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before BRUNS, P.J., HILL, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Tyler R. Hall appeals the district court's revocation of his probation and the court's order that he serve his prison sentence. We granted Hall's motion for summary disposition in lieu of briefs according to Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). The State filed a response and asks that we affirm the district court's decision. Concluding there was no abuse of discretion, we affirm the district court's decision.
Hall received a controlling sentence of 92 months' imprisonment in two separate cases consolidated for sentencing.
At a hearing on the State's motion to revoke Hall's probation, he stipulated to the positive breathalyzer results, one of which registered his breath alcohol at .120. After hearing from the State, Hall, and his attorney, the district court revoked Hall's probation and ordered him to serve his underlying sentence.
In this appeal, Hall claims his use of NyQuil, not beer or liquor, led to the positive breath test. Hall contends this technical violation meant the district court abused its discretion by ordering him to serve his prison sentence.
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, or the defendant has admitted such a violation, revocation is within the sound discretion of the district court. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). K.S.A.2011 Supp. 22–3716(b) authorizes a district court that is revoking probation to reduce the defendant's sentence to “any lesser sentence” or, if imposition of sentence was suspended, any sentence that “might originally have been imposed.” We will not find the district court abused its discretion unless we can say the court's action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Regardless of the nature of the alcohol consumed, Hall clearly stipulated to violating a condition of his probation. The district court explained its position at the hearing.
“Well, Mr. Hall, at the time I sentenced you, 1 told you that you were not to use any alcohol or drugs unless you had a prescription for the drug. Now, I don't know how clear 1 can make it.
“When I said alcohol, I did not specify bourbon, I didn't say vodka, I said alcohol. Many of these substances used for cough control have alcohol within them. Community corrections has rules that require you not use those things.
“Now you are a person who should have paid close attention to that, because just in looking at your criminal history I note that you have two priors for minor in possession. You have a prior for driving under the influence. You had a long history of alcohol problems.
“I went ahead and went along with that plea agreement. But I also explained to you this was your only chance.”
Having carefully reviewed the record of the revocation proceedings, we find no indication the district court abused its discretion.
Affirmed.