If a defendant commits misconduct after the district court has announced that probation will be granted, the district court has the inherent authority to revoke that probation even if the probation term has not yet formally commenced.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant.
Kristafer R. Ailslieger, deputy solicitor general, Thomas J. Drees, county attorney, and Steve Six, attorney general, for appellee.
Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.
Heather Hilton was put on probation in two separate felony cases, and the district court followed the parties' agreement by making the two probations— each lasting 12 months— consecutive to one another. A month later, Hilton violated one of the conditions of her probation.
The State asked that probation be revoked in both cases and that Hilton be required to serve the prison sentences for both crimes. Hilton argued that since the probation terms were made consecutive to one another she was only serving the first probation at the time of the violation. As a result, she argued, the court could only revoke the probation for the first offense, meaning that she would only have to serve one of the two prison terms. The district court revoked probation in both cases and ordered her to serve both prison terms.
In this appeal, we have a single question to decide: If a district court has ordered two consecutive probation periods and the defendant violates the terms of probation during the first probation period, can the judge revoke both probations and order the defendant to serve both prison sentences? We conclude that the judge can revoke both probations in this case, and we therefore affirm the district court.
FACTUAL AND PROCEDURAL BACKGROUND
This case has an unusual procedural background, and we need to go through some of that to properly set the stage to decide the legal issue presented to us. The first of Hilton's two felony convictions at issue here came in 2006 in case No. 05CR264; she was convicted of criminal damage to property for sinking someone else's motorboat. She was placed on probation for 12 months with an underlying 10-month prison sentence that would be served if she didn't successfully complete probation. A key condition of probation was that she make restitution to the boat owner. When the 12 months of probation was about to end, the court extended it for another 24 months because she still owed $15,484 in restitution. A probation can be extended when the defendant has not paid the full amount of restitution ordered by the court. See K.S.A. 21-4611(c)(7).
While still serving that probation, Hilton committed a new felony— attempted reckless aggravated battery— for an incident involving the spanking of a child. In the new case, No. 07CR312, Hilton was granted a 12-month probation with an underlying prison sentence of 8 months that would be served if she didn't successfully complete the probation.
Hilton and the State reached a written plea agreement on the new charge, but the written agreement didn't say what would happen to the probation in the property-damage case. A joint hearing was held to determine the sentence to be imposed in the attempted-reckless-aggravated-battery case (the court had the option of either probation or prison) and whether to revoke her probation and send her to prison in the damage-to-property case. By law, since the new felony was ...