Opinion
No. 107,125.
2013-01-18
STATE of Kansas, Appellee, v. Ruben HERRERA, Appellant.
Appeal from Finney District Court; Philip C. Vieux, 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.
Ruben Herrera appeals the district court's decision revoking his probation and ordering him to serve his underlying sentence. We granted Herrera's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). The State has filed no response.
On December 28, 2010, Herrera pled no contest to one count of possession of methamphetamine with intent to distribute. On February 4, 2011, the district court imposed the standard presumptive sentence of 44 months' imprisonment and granted a dispositional departure to probation with community corrections for 18 months.
On July 13, 2011, the district court held a hearing on a motion to revoke Herrera's probation. Herrera's supervisor testified that Herrera had violated the conditions of his probation by drinking alcohol. Based on the undisputed testimony, the district court revoked Herrera's probation and ordered him to serve his underlying sentence. Herrera timely appealed.
On appeal, Herrera claims the district court erred by revoking his probation and ordering him to serve his underlying sentence. Herrera acknowledges that the decision to revoke probation is within the sound discretion of the district court. However, Herrera contends that the district court abused its discretion by revoking his probation, given the minor nature of the violation.
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).
Here, the district court noted that Herrera had received a dispositional departure to probation. The district court had warned Herrera at sentencing that he would need to strictly adhere to the conditions of his probation. Based on the record on appeal, the district court's decision to revoke Herrera's probation was not arbitrary, fanciful, or unreasonable. We conclude the district court did not abuse its discretion by revoking Herrera's probation and ordering him to serve his underlying sentence.
Herrera also claims that the district court violated his constitutional rights in violation of Apprendi v. New Jersey, 540 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using his prior criminal history to enhance his sentence. But Herrera failed to timely appeal his sentence within 14 days of the sentencing hearing. See K.S.A.2010 Supp. 22–3608(c). The right to appeal is entirely statutory and is not found in either the United States Constitution or the Kansas Constitution. Because the filing of a timely notice of appeal from a sentence is jurisdictional, Herrera's failure to do so deprives this court of jurisdiction to review his sentence. See Barr v. State, 287 Kan. 190, 193, 196 P.3d 357 (2008). Thus, we dismiss Herrera's untimely attempt to appeal his sentence.
Affirmed in part and dismissed in part.