Probation not possible for person that has served sentence

Samuel Schirer won in State v. Kinder, No. 112,844 (January 5, 2018), vacating an order of probation in a Wyandotte County mistreatment of a dependent adult prosecution. Mr. Kinder pleaded no contest to the charge and the presumptive sentencing range was 7 to 9 months prison and the presumptive disposition was probation. But at sentencing, defense counsel noted that Mr. Kinder had almost 12 months of jail credit and therefore asked that the district court not impose probation, but simply find that Mr. Kinder had served the sentence. The district court refused and placed Mr. Kinder on probation for 18 months.

On appeal, the COA dismissed the appeal funding that it lacked jurisdiction because the district court had imposed a presumptive sentence. The KSC disagreed and held that "the question on appeal is not whether Kinder's sentence is presumptive and thus nonreviewable. Rather, the question is more properly characterized as whether the district court was authorized to retain control of Kinder via probation after he had fully served his sentence, i.e., already spent more time in "credited" confinement than the KSGA maximum of nine months." The KSC held that an appellate court did have jurisdiction over this question.

On the merits, the KSC considered the nature of probation as a disposition in Kansas and held that, if a person has served their entire sentence of confinement, probation cannot be appropriate:

In sum, because Kinder's sentence of confinement already has been served, there can be no sentence to be suspended. And if there is no sentence, it obviously cannot be exchanged for probation.

The State argues in the alternative that we should vacate Kinder's probation and remand for the district court to impose 12 months of postrelease supervision for his level 8 offense. See K.S.A. 2016 Supp. 22-3717(d)(1)(C). At oral arguments, Kinder appeared to agree that postrelease supervision is required even after service of the full term of his sentence. 

We note, however, that Kinder was sentenced to probation well over 12 months ago. So remand for imposing postrelease supervision of 12 months would be pointless. While a similar argument could be made about the 18-month probation period that also has now expired, i.e., making the issue of its propriety moot, we granted review and applied a common exception to the rule that appellate courts will not review moot 11 issues—if such an issue "is capable of repetition and raises concerns of public importance."

As a result, the KSC simply reversed the district court's order of probation.