Failure to seek revocation waives revocation

Nathan Webb and Washburn student intern Brandi Studer won in State v. Bennett, No. 94,492 (Kan. App. Aug. 4, 2006), reversing a probation revocation based on the state's failure to act on the revocation for more than two years:

The State claims that evidence exists showing that Bennett attempted to conceal herself. While the lack of any wage information on her social security number since 2001, combined with the multiple addresses, and the evidence indicating that she claimed to be a babysitter when officers arrived in March 2005 is evidence of her attempts at concealment, this evidence does not negate the State's failure to conduct a reasonable investigation.

Really, the true extent of the Bennett's efforts at concealment cannot be ascertained due to the State's failure to conduct a reasonable investigation. Her efforts to conceal herself is only one factor to consider in determining the reasonableness of the investigation. If no one is looking for you, you cannot be said to be concealing yourself. Thus, Bennett's actions do not excuse the State's failure to conduct a reasonable investigation.

In conclusion, the State failed to present evidence showing that it conducted a reasonable investigation to find Bennett. Accordingly, the State waived the probation violation, and the district court lost jurisdiction to revoke Bennett's probation. Furthermore, she was not required to prove that she was prejudiced by the delay. Accordingly, the revocation and reinstatement of Wynona Bennett's probation violated her due process rights. We therefore reverse her probation revocation and remand with directions that Bennett's probation be terminated.