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State v. Holt

July 13, 2007

STATE OF KANSAS, APPELLEE,
v.
COURTNEY D. HOLT, APPELLANT.



Appeal from Johnson District Court, PETER V. RUDDICK, judge.

SYLLABUS BY THE COURT

1. The interpretation of a statute is a question of law over which an appellate court has unlimited review. An appellate court is not bound by the district court's interpretation of a statute.

2. An appeal will not be dismissed for mootness unless it is clearly and convincingly shown that the actual controversy has ended and the only judgment that could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the case are concerned.

3. For crimes committed on or after July 1, 1993, the duration of probation in felony cases is set forth in K.S.A. 21-4611(c). However, for certain felony convictions, the district court may impose a longer period of probation if it finds and sets forth with particularity that public safety will be jeopardized or that the welfare of the inmate will not be served by imposing a shorter term.

4. K.S.A. 21-4729(c) only addresses the duration of a defendant's term of drug treatment, whereas K.S.A. 21-4611(c) addresses the duration of a defendant's term of probation.

5. The sentencing court does not violate the defendant's constitutional rights by sentencing the defendant based on a criminal history which is not proved to a jury beyond a reasonable doubt.

The opinion of the court was delivered by: Malone, J.

Remanded with directions.

Before MALONE, P.J., GREEN and MARQUARDT, JJ.

Courtney D. Holt appeals the district court's imposition of an 18-month probation term following his conviction of one count of attempted possession of marijuana. Holt claims his presumptive probation term under the Kansas Sentencing Guidelines Act (KSGA) was limited to 12 months, and the district court failed to make the required findings to extend the probation term to 18 months.

Holt pled guilty to one count of attempted possession of marijuana in violation of K.S.A. 65-4162, a drug severity level 4 felony. Holt's criminal history score was H. On June 22, 2005, the district court imposed a sentence of 7 months, plus 12 months' postrelease supervision, and placed Holt on 18 months' probation. The district court ordered Holt to attend mandatory drug treatment for up to 18 months pursuant to Senate Bill 123 (K.S.A. 21-4729). The district court also ordered Holt's sentence to run consecutive to his sentence in case No. 04CR1259. Holt timely appeals.

Holt claims the district court erred in imposing a probation term of 18 months. Holt claims his presumptive probation term under the KSGA was limited to 12 months and the district court failed to make the required findings under K.S.A. 21-4611(c)(5) to extend the probation term to 18 months. Holt's argument requires statutory interpretation. "The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the trial court's interpretation. [Citation omitted.]" State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).

As a preliminary matter, the State argues Holt's appeal is moot because Holt's probation has been subsequently revoked. An appeal will not be dismissed for mootness unless it is clearly and convincingly shown that the actual controversy has ended and the only judgment that could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the case are concerned. State v. McIntyre, 30 Kan. App. 2d 705, 706, 46 P.3d 1212 (2002).

In September 2005, the State filed a motion to revoke Holt's probation. Holt stipulated to the probation violations, and the district court revoked and then reinstated his probation in November 2005. In August 2006, the State filed another motion to revoke Holt's probation. Holt stipulated to failing to complete outpatient treatment, failing to report to his probation officer, and failing to pay his court fees. On November 17, 2006, the district court revoked Holt's probation and ordered him to serve his underlying sentence. Because ...


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