Andrews v. State

• Decision Date: 19 June 1986
• Docket Number: No. 58299,58299
• Citation: 720 P.2d 227,11 Kan.App.2d 322
• Parties: Steven Joe ANDREWS, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

Page 227

720 P.2d 227

11 Kan.App.2d 322

Steven Joe ANDREWS, Appellant, v. STATE of Kansas, Appellee.

No. 58299.

Court of Appeals of Kansas.

June 19, 1986.

Syllabus by the Court

1. When a defendant is granted probation in reliance upon misrepresentations made to the court by or on behalf of the defendant, the probation may be summarily revoked without evidence that the terms or conditions of the probation have been violated.

2. Probation is a procedure by which a defendant, found guilty of a crime upon verdict or plea, is released by the court after imposition of sentence, without imprisonment, subject to conditions imposed by the court.

3. Suspension of sentence is the procedure by which a guilty defendant is released by the court without the imposition of sentence.

4. When a defendant's probation is revoked, K.S.A. 1985 Supp. 22-3716(2) authorizes the court to reinstate the sentence already imposed, or any lesser sentence; the court may not impose a new, increased sentence upon revocation of probation.

Lisa Nathanson of Legal Services for Prisoners, Inc., Topeka, for appellant.

Willis K. Musick, Co. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before PARKS, P.J., and MEYER and BRAZIL, JJ.

PARKS, Judge:

Petitioner, Steven Joe Andrews, appeals from the district court's denial of his K.S.A. 60-1507 motion to vacate his sentence.

On October 1, 1979, petitioner entered a plea of nolo contendere to a charge of felony theft. The court found the petitioner guilty of the charged offense and sentenced him to a term of one to five years in the custody of the Kansas Secretary of Corrections. In reliance upon petitioner's representation to the court that he had never been in trouble before, the court granted petitioner's motion for a probated sentence. Petitioner was placed on supervised probation for a term of two years and ordered to make restitution. A few days after petitioner was released on probation, the court learned that he had been convicted of several prior felony crimes in other jurisdictions. The court issued a bench warrant for petitioner's arrest stating that the October 1 sentencing should be "held for naught."

Petitioner was arrested and brought before the court. Without finding that petitioner had violated any of the terms or conditions of his probation, the court effectively revoked petitioner's probation on the grounds that he had lied to both the court and his counsel. Petitioner was resentenced to a term of two to ten years' imprisonment without objection from his counsel. Petitioner filed this motion only after serving five years of his sentence and being placed on parole. He appeals from the district court's denial of any relief on his motion to vacate the second sentence.

Initially, petitioner contends that the sentencing court lacked the authority to revoke his probation without a showing that he violated its terms and conditions. He contends that considerations of due process and the provisions of K.S.A. 1985 Supp. 22-3716 permit the revocation of probation only upon evidence of a violation of its terms. However, in Swope v. Musser, 223 Kan. 133, 136, 573 P.2d 587 (1977), our Supreme Court recognized an exception to this rule which is widely accepted. The Court stated as follows:

"[W]hen misrepresentations have been made to the court by or on behalf of a defendant at the time of granting probation which misrepresentations were a basis for granting probation in the first place, the prior misrepresentations may be grounds for revocation. (United States v. Ecton, 454 F.2d 464 [9th Cir.1972].) It has also been held that probation may be revoked for fraudulent concealment of facts and circumstances existing at the time of the hearing at which probation is granted." 223 Kan. at 136, 573 P.2d 587.

Although the Court did not find that the circumstances of Swope justified application of this exception, we believe the exception itself is appropriate. See United States v. Torrez-Flores, 624 F.2d 776, 784 (7th Cir.1980); Annot., 36 A.L.R.4th 1182. Therefore, when a defendant is granted probation in reliance upon misrepresentations made to the court by or on behalf of the defendant, the probation may be summarily revoked without evidence that the terms or conditions of probation have been violated.

Petitioner admitted at the second hearing that he had lied to a court services officer and to the sentencing court by stating that he had not been in trouble before. Petitioner admitted that he had previously been convicted of auto theft in both Texas and Indiana. The record reveals that the misrepresentations were made by the petitioner at the time probation was granted and that the sentencing court relied upon those misrepresentations in granting probation. Accordingly, it was clearly within the discretion of the trial court to revoke petitioner's probation.

Petitioner's second argument has greater merit. He contends the sentencing court exceeded its authority in imposing a new, increased sentence after revoking his probation. We agree.

K.S.A. 1985 Supp. 22-3716(2) specifically sets out the sentencing options of the court when probation is revoked. The pertinent portion of the statute states as follows:

"If the violation is established, the court may continue or revoke the probation or suspension of sentence and may require the defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed."

The sentencing options...