Opinion
Nos. 108,739 108,743.
2013-08-9
STATE of Kansas, Appellee, v. Jessica SIMON, Appellant.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before PIERRON, P.J., McANANY and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this consolidated appeal, Jessica Simon appeals from the district court's revocation of her probation and refusal to reinstate it in two cases, Nos. 10CR4036 and 10CR3583. She also appeals from the district court's failure to order probation in a later third case, No. 12CR976. She moved for summary disposition in lieu of briefing pursuant to K.S.A.2012 Supp. 21–6820(g) and (h) and Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). The State joined in Simon's motion for summary disposition.
Simon received probation following her convictions for theft and removal of a theft detection device in two separate criminal cases that were consolidated at the district court level. She was sentenced to 12 months' probation with an underlying jail sentence of 6 months.
Simon later stipulated to violating the terms of probation by committing new crimes and by failing to make payments as directed. The district court revoked Simon's probation and ordered her to serve the underlying term. Simon appeals, arguing the district court abused its discretion by failing to reinstate probation or modify her sentence.
Unless required by law, probation is a privilege and not a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). We will not overturn the district court's revocation of Simon's probation absent a finding that the district court abused its discretion. See State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008). If reasonable persons could differ as to the propriety of a district court's discretionary action, we generally will not find an abuse of discretion. See State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561 (2009).
We find nothing unreasonable about the district court's decision. Simon does not provide a reason in support of her argument that the district court abused its discretion. In light of Simon's stipulation that she violated the terms of probation, we conclude that the district court did not abuse its discretion in revoking Simon's probation and ordering her to serve her underlying prison sentence. See K.S.A.2012 Supp. 22–3716(b).
Simon also contends the district court abused its discretion by sending her to prison rather than granting her probation in a third case. Simon committed a new felony while on probation. We are without jurisdiction to consider appeals from a sentence entered for a felony committed on or after July 1, 1993, where the imposed sentence is within the presumptive sentence for the crime. See K.S.A.2012 Supp. 21–6820(c)(1); State v. Williams, 37 Kan. App, 2d 404, 407–08, 153 P.3d 566, rev. denied 284 Kan. 951 (2007). Accordingly, we dismiss Simon's attempt to appeal her presumptive sentence in case No. 12CR976.
Affirmed in part and dismissed in part.