Can't use post-probation acts for probation violation

Alice C. White of the KU Defender Project won in State v. Skolaut, No. 97,401 (Kan. May 16, 2008), substantially affirming Judge Kaufman's refusal to violate Mr. Skolaut's probation based on acts occuring after the probation period had expired. The KSC held that a district court can take such acts into account when determining disposition after violation, but not for the violation finding itself.

For the appellate jurisdiction nerds out there--that's you Paige--I thought it was sort of odd for the KSC to reach the merits of this case. The COA had dismissed this appeal as a case of insufficient importance to justify an appeal on a question reserved. The state's petition for review was from the order of dismissal--the COA had never reached the merits. But the KSC did. Normally, I would think that the KSC would reverse the dismissal and remand to the COA for determination of the merits (that's what they do in most other cases where either the COA improperly dismisses an appeal or fails to reach some issues because of way its original opinion is shaped).

Rule 8.03 provides for such a disposition in civil cases:

In a civil case, if issues decided by the district court were presented to, but not decided by, the Court of Appeals and review has been preserved as to those issues, the Supreme Court may consider and decide such issues, may remand the appeal to the Court of Appeals for decision of such issues, or may make such other disposition with respect to such issues as it deems appropriate.

Of course, this wasn't a civil case--but the rule doesn't say the KSC can't reach the issue in other cases (except by omission). Maybe you could cite this opinion for the proposition that the KSC should just reach those issues in a criminal case, even though the COA had not decided them on the merits?