This is an appeal by appellant from the decision of the trial
court to revoke his probation and reinstate his original
The facts are the typical facts that this court is seeing with
increasing frequency. The scenario is rather simple: a defendant
pleads guilty to a crime, is sentenced, but is given the
privilege of probation on certain conditions. That defendant then
violates the terms of his probation by committing an additional
then complains when the judge revokes the probation. It is very
difficult to find merit in an appeal of this nature.
Justice Holmes of the Kansas Supreme Court in Baker v. State,
243 Kan. 1
, 10, 755 P.2d 493 (1988), stated:
"In an appeal from a criminal conviction, appellate
counsel should carefully consider the issues, and
those that are weak or without merit, as well as
those which could result in nothing more than
harmless error, should not be included as issues on
appeal. Likewise, the fact that the defendant
requests such an issue or issues to be raised does
not require appellate counsel to include them.
Conscientious counsel should only raise issues on
appeal which, in the exercise of reasonable
professional judgment, have merit."
The same admonition is applicable to an appeal from a denial of a
motion seeking relief under K.S.A. 60-1507.
In this case, the defendant entered a plea of guilty to charges
of misdemeanor theft and felony criminal damage to property. He
was sentenced to concurrent terms of one year on the theft charge
and one to two years on the criminal damage to property charge.
Within a year of having been granted probation, defendant
committed another crime in direct violation of his probation
agreement. This violation was dutifully reported to the court and
a due process hearing was held. The trial court found defendant
had violated the terms of his probation, revoked that probation,
and remanded defendant to the custody of the secretary of
Finding no error, we affirm.
Appellant's sole argument on appeal is that the trial court
abused its discretion when it revoked his probation. The gist of
his argument is that, because alcohol abuse is his real problem,
probation should have been continued so that he could seek
treatment for alcohol abuse.
Aside from the fact that the secretary of corrections offers
numerous programs designed to deal with alcohol abuse, we hold
the trial court did not abuse its discretion.
"Judicial discretion is abused when judicial action is
arbitrary, fanciful or unreasonable, which is another way of
saying that discretion is abused only where no reasonable
[person] would take the view adopted by the trial court."
Stayton v. Stayton,
211 Kan. 560, 562, 506 P.2d 1172 (1973). "The test on appellate
review of whether the trial court abused its discretion is
whether no reasonable person would agree with the trial court."
Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988).
It is readily apparent to this court, and we so hold, that the
trial court did not abuse its discretion in revoking probation in
Appellant's probation was revoked because he violated the first
condition of that probation, to refrain from violating the law.
As we have pointed out on many occasions, probation is not a
matter of right but a privilege, and one who willfully violates
the conditions of that probation is not in a position to complain
when it is revoked as a result of his own ...