Opinion
No. 106,310.
2012-05-25
STATE of Kansas, Appellee, v. Joe Benjamin TORRES, Appellant.
Appeal from Finney District Court; Michael L. Quint, Judge.
Submitted by the parties for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
Joe Benjamin Torres received probation after his conviction for two felonies: criminal threat and aggravated child endangerment. While on probation, he was convicted for DUI, and he admitted that he had consumed four 12–ounce beers, even though his probation required that he refrain from the use of alcohol. He also admitted that he had used marijuana, and his probation also required that he not possess or use any illegal drugs. The district court found that Torres had violated his probation and ordered that he serve his underlying prison sentence.
Torres appeals, contending that the district court erred both in revoking his probation and in requiring that he serve his underlying sentence. But Torres admitted to facts that demonstrated he had violated his probation, and once the district court determines that the terms of probation have been violated, it's within that court's discretion whether to revoke probation and require the defendant to serve the underlying sentence. We find no abuse of discretion in revoking Torres' probation.
The legal rules applicable to this appeal are straightforward. A district court's decision to revoke probation must be based on a factual finding that a condition of probation has been violated. Once a violation has been established, the decision to revoke probation is within the discretion of the district court. State v.. Skolaut, 286 Kan. 219, 227–28, 182P.3d 1231 (2008); see State v.. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). We may find an abuse of discretion only when no reasonable person would agree with the decision made by the district court. State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006).
Torres clearly violated his probation, and he did so in significant ways. At the hearing to determine whether he had violated his probation, the district court found that he did so after the State presented a certified copy of the DUI conviction (for an offense occurring while he was on probation) and Torres' written admissions to drinking alcohol and using marijuana. Torres had gotten a break from the court when it initially gave him probation-Torres could have been sent to prison initially because he had committed these felony offenses while he was on bond, awaiting trial, on a previous felony DUI charge. See K.S.A.2010 Supp. 21–4603d(f).
At sentencing, the district court warned Torres that if he did not comply with all of the conditions of his probation, the court intended to send him to prison: “[M]ake sure you understand exactly what the [conditions of probation] mean[ ]. There is no fudge room in this. If they send a report to me and ... request a bench warrant on you, if the facts are true, you will go to prison.” The district court was not required to give him a second chance at probation, and we find nothing unreasonable about the district court's decision to revoke Torres' probation in these circumstances.
On Torres' motion, we accepted this appeal for summary disposition under K.S.A. 21–4721(g) and (h) and Supreme Court Rule 7 .041a (2011 Kan. Ct. R. Annot. 60). We have reviewed the record that was available to the sentencing court, and we find no error in its decision to revoke Torres' probation and require that he serve his underlying sentence.
The judgment of the district court is therefore affirmed.