Monday, January 31, 2011

No proper extension = no jurisdiction to revoke probation

Lydia Krebs won in State v. Hoffman, No. 103,133 (Kan. App. Jan. 28, 2011), reversing a Reno County probation revocation. The issue arose because of an improper extension of Mr. Hoffman's probation term:

the order at issue in this case did not inform Hoffman that he was entitled to a modification hearing and a judicial finding of necessity prior to having his probation extended. Again, the January 2007 order extending probation stated:

"Whereas it appears that the defendant has not completed fines, court costs, restitution or a sex offender treatment program in this matter.

"Now therefore it is ordered that the defendant's probation be extended for one year unless the defendant show cause why this order should not be issued by the 19th day of March, 2007.

"It is further ordered that the defendant shall be served with this order on or before the next reporting date of the defendant."

Because the order did not inform Hoffman that he was entitled to a modification hearing and a judicial finding of necessity prior to having his probation extended, Hoffman's consent to the order cannot be construed as a valid substitute for the procedural requirements of K.S.A. 2009 Supp. 21-4611(c)(8). For this reason, the January 2007 order extending Hoffman's probation was invalid, which means Hoffman's term of probation expired on March 19, 2007. Because the State did not commence proceedings to revoke Hoffman's probation within 30 days after his probation expired, the district court did not have jurisdiction to revoke Hoffman's probation. As such, the district court erred in denying Hoffman's motion to dismiss and granting the State's motion to revoke his probation.

We see these kinds of issues every now and then in probation revocation appeals. But if we don't find it until appeal, the underlying sentence is likely served out. So trial practitioners really need to carefully review the documents, even in what appears to be a routine probation revocation proceeding.

[Update: the state agreed to not file a PR, so the mandate quickly issued on February 7, 2011.]

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