State v. Franco

• Decision Date: 29 March 2013
• Docket Number: No. 107,813.,107,813.
• Citation: 297 P.3d 1194
• Parties: STATE of Kansas, Appellee, v. Christopher FRANCO, Appellant.
• Court: Kansas Court of Appeals

297 P.3d 1194

STATE of Kansas, Appellee,
v.
Christopher FRANCO, Appellant.

No. 107,813.

Court of Appeals of Kansas.

March 29, 2013.

Appeal from Finney District Court; Michael L. Quint, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Brett Watson, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., GREEN and STANDRIDGE, JJ.

MEMORANDUM OPINION
PER CURIAM:

Christopher Franco appeals the district court's revocation of his probation, contending that the district court abused its discretion in failing to find that the mitigating circumstances outweighed the violations of probation terms. We disagree and affirm the district court's judgment.

In 2010, pursuant to a plea agreement, Franco pled no contest to giving a • worthless check. The district court found him guilty and, granting a downward dispositional departure, sentenced Franco to 12 months' probation with an underlying prison sentence of 14 months. In May 2011, Franco signed a waiver of hearing and agreed to a 12–month extension of his probation; the district court so modified the probation. In November 2011, Carlos Murillo, Franco's intensive supervision officer, filed an affidavit alleging that Franco violated his probation by (1) being convicted of aggravated criminal sodomy, (2) being convicted of promoting obscenities to a minor, (3) being convicted of two counts of violation of a protection from abuse order, (4) failing to report for scheduled visits with Murillo on three occasions, (5) violating curfew, and (6) drinking one beer. To the affidavit, Murillo attached Franco's written admission that he drank the beer. The State requested that the district court revoke Franco's probation.

The district court held a revocation hearing in December 2011. Murillo's testimony mirrored his affidavit, and the State entered into evidence the journal entries showing the convictions that occurred while Franco was on probation. Franco presented no evidence at the hearing. The district court found Franco had violated his probation, revoked the probation, and ordered Franco to serve his original sentence. Franco appeals.

Probation from service of a sentence is an act of grace and is a privilege, not a right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A violation of probation must be established by a preponderance of the evidence, but once the State has proven a violation of the...