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State v. Myers

March 14, 2008

STATE OF KANSAS, APPELLEE,
v.
THADDEUS J. MYERS, APPELLANT.



Appeal from Sumner District Court; R. SCOTT McQUIN, judge.

SYLLABUS BY THE COURT

1. Generally, an appellate court reviews a probation revocation for an abuse of discretion. A district court necessarily abuses its discretion when it makes an error of law. To the extent a question of law is at issue, appellate review is de novo.

2. Whether an individual's due process rights have been violated is a question of law, over which the appellate court has de novo review.

3. 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. A district court may revoke probation even if the terms of revocation have expired as long as the proceedings were instituted during the term of the probation and the revocation occurs within a reasonable time thereafter.

4. The district court's jurisdiction to revoke a probationer's probation is not without limit. Rather, the State is required to proceed in a timely and reasonable manner in issuing and executing the warrant in order to meet the requirements of due process.

5. An unreasonable delay by the State in the issuance and execution of a warrant for the arrest of a probationer whose whereabouts are either known or ascertainable with reasonable diligence may result in the State's waiver of the violation and entitle the defendant to discharge.

6. Under the facts of this case, in light of the nearly complete absence of evidence as to efforts actually made by the State to attempt service of the arrest warrant on the probationer or to investigate the probationer's whereabouts, the district court erred in finding the State proceeded in a timely and reasonable manner in serving the warrant. The State therefore waived the probation violations asserted in its motion to revoke.

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

Reversed and remanded with directions.

Before CAPLINGER, P.J., MALONE, J., and LARSON, S.J.

Thaddeus Myers appeals the district court's denial of his motion to quash a probation violation warrant and terminate probation. Because the district court erred in finding the State made reasonable efforts to execute the probation violation warrant, we reverse and remand to the district court with instructions to quash the warrant and terminate probation.

Factual and Procedural Background

Myers pled guilty to DUI and disorderly conduct and was sentenced to 6 months in the county jail and assessed a $500 fine and court costs for the DUI conviction; he also was sentenced to 30 days in the county jail for the disorderly conduct conviction, to be served concurrent to the DUI sentence. The court granted Myers probation for 1 year, beginning October 8, 2001.

After several prior extensions of Myers' probation, the State filed a motion to revoke Myers' probation on June 10, 2004, alleging Myers failed to report as instructed, failed to make monthly payments of costs, and failed to complete one of the special conditions of his probation.

Although a bench warrant was issued for Myers' arrest on June 10, 2004, he was not arrested until more than 2 ...


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