Opinion
112,239.
04-17-2015
STATE of Kansas, Appellee, v. Diane HASTINGS, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Diane R. Hastings appeals the district court's decision to order 36 months' postrelease supervision following her probation revocation. We granted Hastings' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State has filed a response which concedes that the district court erred by ordering postrelease supervision.
Hastings pled guilty to aggravated burglary and theft for shoplifting at a Walmart store after being told not to return. At the sentencing hearing on July 10, 2013, the district court made the appropriate border-box findings and sentenced her to 24 months' probation with an underlying sentence of 36 months in prison to run concurrently to 12 months in jail. The district court also imposed 36 months' postrelease supervision. Hastings did not appeal her sentence.
Hastings' probation was subsequently revoked, and her underlying sentence was reduced to 12 months in prison. At the probation revocation hearing on May 30, 2014, the district court ordered that there would be no postrelease supervision.
On June 24, 2014, the district court held another hearing and changed the no postrelease supervision order. The district court indicated that it had made a mistake at the earlier hearing and that postrelease supervision should have been ordered because this was a border-box case. Although the district court ordered 24 months' postrelease supervision at the hearing, the subsequent journal entry reflects that Hastings is ordered to serve a 36–month postrelease supervision term. Hastings timely appealed.
On appeal, Hastings contends the district court was without jurisdiction to order a term of postrelease supervision after it had ordered no postrelease supervision at the initial probation revocation hearing. In the alternative, Hastings contends that an order nunc pro tunc should be issued to correct her journal entry of probation revocation to reflect the 24–month postrelease supervision term that was ordered at the June 24, 2014, hearing, as opposed to 36 months' postrelease supervision reflected in the journal entry.
In its response to Hastings' motion for summary disposition, the State concedes that the sentence announced from the bench at Hastings' initial probation revocation hearing on May 30, 2014, controls. K.S.A. 22–3716(b) allows the district court at a probation revocation hearing to impose any sentence less than the one originally imposed, including a shorter prison term, a shorter term of postrelease supervision, or any combination thereof. See State v. Ardry, 295 Kan. 733, Syl. ¶ 1, 286 P.3d 207 (2012) ; State v. McKnight, 292 Kan. 776, Syl. ¶ 1, 257 P.3d 339 (2011). The district court was authorized to order no postrelease supervision at the initial probation revocation hearing on May 30, 2014, and the district court lacked jurisdiction to modify that sentence at the subsequent hearing on June 24, 2014. See K.S.A.2014 Supp. 21–6820(i) ; State v. Miller, 260 Kan. 892, 900, 926 P .2d 652 (1996) (court has no jurisdiction to modify sentence except to correct arithmetic or clerical errors). Therefore, we vacate the postrelease supervision portion of Hastings' sentence and remand with directions for the district court to file a nunc pro tunc journal entry of probation revocation reflecting that Hastings is not subject to any term of postrelease supervision.
Hastings also contends the district court violated her constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by increasing her sentence based on her criminal history, without proving the criminal history to a jury beyond a reasonable doubt. But Hastings did not timely appeal her original sentence which was imposed on July 10, 2013. See K.S.A.2014 Supp. 22–3608(c) ; State v. Inkelaar, 38 Kan.App.2d 312, 317–18, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008) (defendant's notice of appeal was timely only as to probation revocation and not as to original sentence). Because Hastings did not timely appeal her sentence, this court lacks jurisdiction to consider her Apprendi claim.
Dismissed in part, vacated in part, and remanded with directions.