Opinion
No. 107,503.
2012-08-31
STATE of Kansas, Appellee, v. Dane I. SPEER, Appellant.
Appeal from Harvey District Court; Joe Dickinson, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
Before GREENE, C.J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dane I. Speer appeals the district court's revocation of his probation and order he serve his underlying sentence. We granted Speer's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). Finding no error, we affirm the district court.
Factual and Procedural History
On September 2, 2009, Speer pled no contest to one count of possession of methamphetamine. The district court sentenced Speer to 12 months of probation with an underlying 22–month prison sentence.
The district court cautioned Speer about the consequences of violating his probation order:
“Mr. Speer, you've accumulated a big record for somebody that's only 28, 29 years old, so I hope this time out with the Department of Corrections serves you well and this will be the last run-in you have. You're just at a point with a criminal history that any more trouble with the law you are just going to spend a lot of time in jail.”
The district court added that Speer's problems appeared to be drug related and that the court hoped he would “get a handle on things and turn things around.”
Before completing his 1 year of probation, the State alleged Speer committed the following probation violations: (1) he used illegal drugs; (2) he failed to maintain contact with his probation officer; (3) he left Harvey County without permission; and (4) he was convicted of misdemeanor disorderly conduct.
Speer stipulated to all of the State's allegations. Consequently, the district court revoked Speer's probation. Speer then asked the court to reinstate his probation order because his job required him to leave Harvey County and his disorderly conduct conviction was relatively minor.
The district court denied Speer's request and ordered him to serve his underlying sentence. The court, however, reduced his prison sentence from 22 months to 16 months. Speer appeals the court's decision to revoke his probation.
Analysis
Speer admits he violated his probation order but nonetheless argues the district court abused its discretion by ordering him to serve his underlying prison sentence. In support of his argument, he again claims his job required him to leave Harvey County and that his disorderly conduct conviction was relatively minor.
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).
At the probation revocation hearing, the district court agreed that Speer's disorderly conduct conviction, a misdemeanor, was relatively minor. The district court, however, observed that Speer continued to use drugs and added, “I'm not convinced that prison is the best place to address that, but it can't be addressed very well on probation if we don't know where you're at and you didn't avail yourself of treatment because you didn't go to the appointments.”
Based on our review of the record, the district court's decision to revoke Speer's probation was not arbitrary, fanciful, or unreasonable. Therefore, the court did not abuse its discretion by revoking his probation and ordering him to serve his underlying sentence.
Affirmed.