Appeal from McPherson District Court; CARL B. ANDERSON, JR., judge.
1. K.S.A. 2006 Supp. 22-3716(b) provides that upon formal notice that a defendant has violated the conditions of his or her probation, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charged. Determining whether inaction constitutes an unnecessary delay depends upon the circumstances of each case.
2. The Due Process Clause of the Fourteenth Amendment to the United States Constitution limits procedurally and substantively the ability of the State to revoke a probationer's probation. The State is required to proceed in a timely and reasonable manner in order to meet the requirements of due process. An unreasonable delay by the State in the issuance and execution of a warrant for the arrest of a probationer whose whereabout are either known or ascertainable with reasonable diligence may result in the State's waiver of the violation and entitle the defendant to discharge.
3. State v. Nicholson, 243 Kan. 747, 763 P.2d 616 (1988), is discussed and distinguished.
4. Under the facts of this case and specifically due to the State's unexplained delay of 6 years in prosecuting a probation violation, the fact that the defendant could have been transported to McPherson County for revocation proceedings during his incarceration on the subsequent conviction, the defendant's unanswered correspondence requesting timely resolution of the revocation motion, the State's failure to comply with the district court's order to transport the defendant to resolve this matter, and the potential prejudice to the defendant of the unresolved detainer and its impact on program eligibility during his incarceration, we hold that the defendant's due process rights were violated and the State must be barred from its belated efforts to prosecute the revocation motion.
The opinion of the court was delivered by: Greene, J.
Reversed and remanded with directions.
Before HILL, P.J., GREEN and GREENE, JJ.
Eric Eugene Hall appeals the district court's decision to revoke his probation, arguing the court lacked jurisdiction due to the unreasonable delay by the State in prosecuting its motion to revoke. We agree with Hall and reverse the district court.
Factual and Procedural Background
On August 26, 1998, Hall pled no contest to one count of aggravated battery and was thereafter sentenced to an underlying prison term of 12 months, with 36 months' probation. On June 23, 1999, the State filed a motion to revoke Hall's probation, alleging among other violations that Hall had been convicted of two counts of felony aggravated robbery on June 3, 1999, in Saline County. The Saline County charges resulted in Hall's imprisonment for 78 months, or until July 2005.
A bench warrant for Hall's arrest was issued in McPherson County in June 1999 but never executed during Hall's imprisonment on the Saline County conviction. Although the State claims through an appended affidavit to its brief on appeal that a detainer was lodged for Hall on November 17, 1999, neither the detainer itself nor the affidavit can be located in the record on appeal. The record contains copies of two letters from Hall to the district judge, however, referring to the detainer and requesting resolution of the pending revocation matter in McPherson County.
The first letter was dated February 10, 2002, and indicated that the unresolved detainer from McPherson County rendered Hall ineligible for reintegration and work release programs:
"I still have two more recommended programs to complete: pre-release reintegration program, and then work release. But these last two programs require minimum custody classification. I currently have medium custody and now cannot receive my minimum custody until resolving my detainer on case #980CR-155. Each of the two remaining programs are ten mo. to complete, which is another total of 20 mo. My release date is set for 9-13-2004 which is another 31 mo. So I have 11 mo. now to resolve this detainer. So the ...