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State v. Chardon

Court of Appeals of Kansas

August 23, 2019

State of Kansas, Appellee,
v.
Christian D. R. Chardon, Appellant.

         SYLLABUS BY THE COURT

         1. Generally, Kansas appellate courts do not decide moot questions or render advisory opinions. The mootness doctrine is a court policy, which recognizes that the role of the court is to determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive. We do recognize an exception when the question is capable of repetition and is of public interest even though the case has become moot for the present parties.

         2. If the court makes a finding that the offender has committed one or more violations of the release conditions of the probation, the court may impose confinement in a county jail not to exceed 60 days upon each such finding. K.S.A. 2018 Supp. 22-3716(c)(11). Such confinement is separate and distinct from the violation sanctions provided in K.S.A. 2018 Supp. 22-3716(c)(1)(B), (c)(1)(C), (c)(1)(D), and (c)(1)(E) and shall not be imposed at the same time as any such violation sanction.

         3. In general, criminal statutes are strictly construed in favor of the accused. That rule is constrained by the rule that interpreting a statute must be reasonable and sensible to effect the legislative design and intent of the law.

         4. When the Legislature shows that it knew how to create an exception and fails to do so, our courts assume the Legislature did not intend to include such an exception.

          Appeal from Douglas District Court; Peggy C. Kittel, judge.

          Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

          Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Hill, P.J., Standridge, J., and Neil B. Foth, District Judge, assigned.

          HILL, J.

         As a sanction for violating his probation, the court ordered Christian Chardon to serve 60 days in jail. Because he could not make bond, Chardon had spent 65 days in jail awaiting disposition of the alleged probation violations. On appeal, he contends the district court should have credited this time toward the 60-day sanction. After reviewing the cases and considering the rule of lenity and how the Legislature created the 60-day sanction, we agree with Chardon. He should have received credit.

         Chardon had pled no contest to felony theft and felony fleeing or eluding a police officer. The court sentenced him to a prison term which it suspended to 12 months' probation. Later, Chardon never reported as required and no longer lived at the address he had given when placed on probation.

         A few months later, police arrested Chardon in Arizona and brought him back for a probation violation hearing. Chardon stipulated to the probation violations, but the parties disputed whether Chardon had "absconded" from supervision, which would permit the district court to bypass the statutory requirement to impose an intermediate sanction and send him directly to prison.

         The court set the matter for a disposition hearing on March 9, 2018, and ordered Chardon to remain in custody until that time. For a reason not apparent from the record, the disposition hearing was not held until March 30, 2018. In ...


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