Opinion
113,014.
05-29-2015
STATE of Kansas, Appellee, v. Michael HOYTE, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Michael Anthony Hoyte appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence. We granted Hoyte's 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 no response.
On November 26, 2012, Hoyte pled no contest to one count of burglary of a dwelling. On January 11, 2013, the district court sentenced Hoyte to 12 months in prison but granted probation for 24 months. Hoyte did not appeal his sentence.
On January 23, 2014, the State filed a motion to revoke probation alleging that Hoyte had violated his probation on numerous grounds, including failure to report to his probation officer. At a hearing on February 24, 2014, the district court extended Hoyte's probation for 24 months to be supervised by community corrections.
On July 30, 2014, the State filed a second motion to revoke probation. At a hearing on September 29, 2014, Hoyte stipulated to violating his probation by failing to report, failing to pay costs, failing to remain employed, and absconding from supervision. The district court revoked Hoyte's probation and ordered him to serve his underlying prison sentence. Hoyte timely appealed his probation revocation.
On appeal, Hoyte contends that the district court erred by revoking his probation and ordering him to serve his underlying prison sentence. Hoyte 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, Hoyte violated his probation on two separate occasions. On the second violation, the district court specifically found that Hoyte had absconded from supervision. The district court's decision to revoke Hoyte'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 Hoyte's probation and ordering him to serve his underlying prison sentence.
Affirmed.