Due Process violation for probation violation delay

Lydia Krebs won in State v. Curtis, No. 99,474 (Kan. App. June 19, 2009), reversing a Reno County probation violation finding. The defendant claimed a Due Process violation for a twenty-one month delay between filing of the motion revoke and the decision. The COA reviewed case law on probation violation delay, including the most recent KSC caselaw:

Here, Curtis does not argue he was prejudiced by the State's delay; rather, he argues the State waived the right to pursue revocation as a result of the violation. Thus, the issue is one of waiver. Although each of the cases cited above ultimately makes a legal finding as to whether the State has waived its right to pursue revocation of probation, none of the cases define waiver. Black's Law Dictionary defines waiver as the voluntary relinquishment of a known right. Waiver may be express or implied. "'An implied waiver may arise where a person has pursued such a course of conduct as to evidence an intention to waive a right, or where his conduct is inconsistent with any other intention than to waive it.'" Black's Law Dictionary. Applying this definition in the context of whether the State has waived its right to pursue probation revocation, courts necessarily must consider the State's conduct to determine whether such conduct reflects (1) reasonable diligence in pursuing revocation or (2) unreasonable inaction in pursuing revocation, indicating implied waiver.

The COA went on to apply a Barker v. Wingo constitutional speedy trial analysis and held that

(1) a time period of 616 days elapsed between Curtis' arrest and adjudication of his probation violation; (2) a 393-day delay in the adjudication can be attributed to an unreasonable failure by the State to pursue Curtis' case; and (3) Curtis made an affirmative assertion of his right to timely adjudication on more than one occasion. Our evaluation of these factors strongly support a finding that the State failed to act in a timely and reasonable manner in pursuing the adjudication of the probation violation. We find the State's failure in this regard represented an implied waiver on the part of the State to pursue the violation; thus, the court's decision to go forward with the revocation proceeding violated Curtis' right to due process. Accordingly, we reverse the probation revocation and vacate the order to serve the underlying sentence.

Interesting. Keep this in mind on probation violation cases.

[Update: the state did not file a PR and the mandate issued on July 23, 2009.]