State v. Duke, 57183

• Decision Date: 02 May 1985
• Docket Number: No. 57183,57183
• Citation: 10 Kan.App.2d 392,699 P.2d 576
• Parties: STATE of Kansas, Appellee, v. Edward A. DUKE, Appellant.
• Court: Kansas Court of Appeals

Page 576

699 P.2d 576

10 Kan.App.2d 392

STATE of Kansas, Appellee, v. Edward A. DUKE, Appellant.

No. 57183.

Court of Appeals of Kansas.

May 2, 1985.

Syllabus by the Court

1. Rules for revoking probation are reviewed and stated.

2. Once the State establishes a violation of probation due to failure to pay a fine or court costs or to make restitution, the probationer must raise the defense of poverty and introduce evidence showing poverty and a good-faith effort to meet the conditions of probation.

3. In determining whether to revoke probation, the trial court must consider why the probationer failed to pay a fine or court costs or make restitution as required by the conditions of probation.

4. Imprisonment may be used as a means to enforce collection of fines, court costs or restitution when the probationer willfully refuses to pay although he has the means to pay, or he does not make a bona fide effort to acquire the resources to pay.

5. If the sentencing court determines that the probationer made a bona fide effort or is not at fault in failing to pay, the court should then consider alternative measures of punishment to imprisonment. Only if the alternative measures are inadequate to meet the State's interests in punishment and deterrence may the court imprison a probationer despite his bona fide effort to pay.

6. In an appeal in a criminal case from the trial court's order revoking probation for his failure to pay fines and make restitution, it is held that the trial court erred in automatically revoking probation once the probation violation was established without considering the reasons for the violation.

Lonnie A. Hamilton, of Hamilton, Huntley, & McRorey, Olathe, for appellant.

Bruce W. Beye, Asst. Dist. Atty., Dennis W. Moore, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before ABBOTT, P.J., and REES and PARKS, JJ.

ABBOTT, Judge:

This is a direct appeal by Edward A. Duke from the trial court's order revoking probation for his failure to pay fines and make restitution as set forth in the conditions of his probation.

Duke was placed on probation on October 27, 1983, for a period of 3 years. As conditions of the probation, he was ordered to pay court costs in the matter within 90 days and to pay a fine of $3,000 and make restitution of $520 pursuant to a payment schedule set up by his probation officer. In December, the State filed a motion to revoke Duke's probation. Duke was arrested and was apparently unable to make bail. The trial court denied the State's motion for revocation, but Duke lost his job as a result of the incarceration.

Duke managed to pay court costs in compliance with the condition of his probation by making payment on the final day of the 90-day period. He made a payment of $48.43 on March 6, 1984, for restitution which comprised the total he paid on his obligation for fines and restitution. The probation officer testified that defendant's payment schedule called for $83 per month for the fine and $100 per month for restitution.

The trial court revoked Duke's probation on March 23, 1984, for failure to pay fines and make restitution. Duke argues that the violation of a condition of his probation--the failure to pay fines and make restitution--was not a willful refusal nor was it his fault. He contends that his failure to meet the financial obligations of his probation was due to his loss of employment. Under the holding of Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), it is constitutionally impermissible to automatically revoke an indigent defendant's probation and imprison him merely because he cannot pay the fine and make restitution in accordance with the conditions of his probation. Duke contends the trial court failed to follow the guidelines enunciated in Bearden and therefore abused its discretion in revoking probation.

The procedure for revoking probation in Kansas is governed by K.S.A.1984 Supp. 22-3716. The statute complies with the constitutional requirements that the defendant be afforded a revocation hearing without unnecessary delay, the right to counsel at the hearing and the right to present testimony of witnesses and other evidence on his behalf, all in accordance with due process principles. State v. Rasler, 216 Kan. 292, 532 P.2d 1077 (1975); Toman v. State, 213 Kan. 857, 518 P.2d 501 (1974). Moreover, the State has the burden of proof to establish the violation of a condition of defendant's probation. K.S.A.1984 Supp. 22-3716(2). Swope v. Musser, 223 Kan. 133, 573 P.2d 587 (1977). It is not necessary that the violation be established beyond a reasonable doubt or by conclusive evidence to sustain revocation. State v. Rasler, 216 Kan. 292, 532 P.2d 1077; State v. Woods, 215 Kan. 295, 524 P.2d 221 (1974). Finally, the determination of whether an order of probation should be revoked is a matter within the trial court's discretion. Swope v. Musser, 223 Kan. 133, 573 P.2d 587; State v. Nelson, 196 Kan. 592, 412 P.2d 1018 (1966).

Foreign jurisdictions have considered the propriety of revoking probation, thereby subjecting the defendant to imprisonment, solely because of the defendant's failure to make restitution or pay the fines imposed by the sentencing court. Authority from those jurisdictions indicate that incarceration solely because of financial inability to pay is unconstitutional. The defendant is being imprisoned for his poverty and deprived of equal protection of the laws. See, e.g., In re Antazo, 3 Cal.3d 100, 89 Cal.Rptr. 255, 473 P.2d 999 (1970); State v. Huggett, 55 Hawaii 632, 525 P.2d 1119 (1974); State v. DeBonis, 58 N.J. 182, 276 A.2d 137 (1971); Huggett v. State, 83 Wis.2d 790, 266 N.W.2d 403 (1978). It is emphasized in these cases that the practice of imprisonment to enforce collection of fines may be proper in certain circumstances. This practice, however, presupposes the defendant has the ability to pay. Therefore, it must be shown that the defendant's failure to meet the financial obligation was a result of his own refusal or willful conduct rather than his inability to pay. United States v. Taylor, 321 F.2d 339 (4th Cir.1963); In re Antazo, 3 Cal.3d 100, 89 Cal.Rptr. 255, 473 P.2d 999; State v. Gerard, 57 Wis.2d 611, 205 N.W.2d 374 (1973).

In our opinion, Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221, controls this appeal. In Bearden, the defendant pleaded guilty to burglary and theft charges, but was granted probation on the condition that he pay a fine of $500 and restitution of $250. Two hundred dollars was payable within two days and...