Drug treatment statute does not affect length of probation

On May 28, the COA granted the ADO's motion to publish in State v. Holt, No. 95,278 (Kan. App. July 13, 2007), giving some much needed love to former ADO Jay Witt.

The Holt decision clarifies that the presumptive term of probation for a severity level 4 drug offense is 12 months- regardless of whether the court can impose a longer term for drug treatment. The COA stated:

The district court imposed an 18 months' probation term on Holt, relying on K.S.A. 2006 Supp. 21-4729. This statute provides a nonprison certified drug abuse treatment program for certain offenders. The district court found that Holt fell under the statute because he attempted to violate K.S.A. 65-4162, and he fell in the drug grid block 4-H. K.S.A. 2006 Supp. 21-4729(a)(1). According to K.S.A. 2006 Supp. 21-4729(c), “The sentencing court shall commit the offender to treatment in a drug abuse treatment program until determined suitable for discharge by the court but the term of treatment shall not exceed 18 months.” (Emphasis added.)

By its plain language, K.S.A. 2006 Supp. 21-4611 sets forth the maximum duration of probation that a district court can impose in felony cases. K.S.A. 2006 Supp. 21-4729, however, does not address the duration of probation. Instead it merely sets forth the maximum term for which a court can commit a defendant to a drug abuse treatment program. Simply put, K.S.A. 2006 Supp. 21-4729 only addresses the duration of a defendant's term of drug treatment, whereas K.S.A. 2006 Supp. 21-4611 addresses the duration of a defendant's term of probation.

Because K.S.A. 2006 Supp. 21-4611, rather than K.S.A. 2006 Supp. 21-4729, sets forth the maximum probation term a district court can impose, Holt's presumptive term of probation was limited to 12 months. See K.S.A. 2006 Supp. 21-4611(c)(3). The district court could have imposed a longer probation term of 18 months if it had made the necessary findings under K.S.A. 2006 Supp. 21-4611(c)(5). However, it failed to do so. Without making these requisite findings, the district court's extension of Holt's probation was an abuse of discretion, resulting in an illegal sentence.

This case has a potential impact on any probation revocation for a level 4 drug offense. If the defendant received more than 12 months probation, and the violation occured after 12 months, there is a good argument that the court does not have jurisdiction to revoke probation, because the probation term should have already expired.

Also, you might consider a motion to correct illegal sentence in any severity level 4 drug case where the court sentenced the defendant to more than 12 months probation without making any findings under K.S.A. 21-4611(c)(5).