Appeal from Ellsworth District Court; RON SVATY, judge.
BY THE COURT
1. Once there is evidence of a probation violation, the decision to revoke probation rests within the sound discretion of the district court.
2. Judicial discretion is abused if the action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.
3. K.S.A. 2014 Supp. 22-3716(c) requires a sentencing court to impose an intermediate sanction on a probationer before ordering the probationer to serve the underlying prison sentence unless certain exceptions apply.
4. Intermediate sanctions are not required if the probationer commits a new crime, absconds from supervision, or the sentencing court finds and sets forth with particularity its reasons for finding that the safety of the public will be jeopardized or that the welfare of the probationer will not be served by such sanction.
5. Abscond is defined as to depart secretly or suddenly, especially to avoid arrest, prosecution, or service of process.
6. If the imposition of intermediate sanctions is to be avoided in the event probation is revoked due to the probationer absconding from supervision, the State must allege that the probationer has absconded. Then, at an evidentiary hearing the State must prove by a preponderance of the evidence that the probationer has absconded.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.
Joe Shepack, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., GREEN and LEBEN, JJ.
After hearing that probationer Randy L. Huckey had not reported to his supervisor for more than 2 months, the district [51 Kan.App.2d 452] court ruled Huckey was an absconder and declined to impose any intermediate sanctions as required by law when it revoked his probation. By legislative directive, intermediate sanctions are now the norm and the court must impose them unless the probationer has committed a new crime or absconded from supervision. The court may bypass the sanctions altogether if the court makes specific findings that public safety or the probationer's own needs compel their avoidance. Here, the record does not indicate that Huckey committed a new crime, and the court made no specific findings concerning public safety or Huckey's welfare. Because there is an absence of evidence in the record that Huckey had fled or hidden himself from the jurisdiction of the court in order to avoid arrest, prosecution, or ...