State v. Gary

Decision Date27 October 2006
Docket NumberNo. 93,089.,93,089.
Citation144 P.3d 634
PartiesSTATE of Kansas, Appellee, v. Lorenzo C. GARY, Appellant.
CourtKansas Supreme Court

Carl Folsom, of Kansas Appellate Defender Office, argued the cause, and Michelle Davis, of the same office, was on the brief for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by DAVIS, J.:

This case comes before us on the State's petition for review. The question presented for decision is whether a district court after granting a defendant probation on the crimes charged may thereafter revoke that probation based upon a crime committed by the same defendant 3 days prior to his grant of probation. We agree with the Court of Appeals' negative response and affirm its decision reversing the district court's revocation of probation in State v. Gary, 34 Kan.App.2d 599, 601, 121 P.3d 1000 (2005).

On April 21, 2004, Lorenzo C. Gary entered into a plea agreement and pled guilty to two counts of forgery based on conduct which occurred in July 2003. The district court accepted Gary's guilty plea, pronounced him guilty of two counts of forgery, severity level 8 nonperson felonies, and ordered a presentence investigation. The presentence investigation report listed Gary as having a criminal history rating of G, based on a prior forgery adjudication as a juvenile. The report recommended a presumption of probation based on the sentencing guidelines.

On May 25, 2004, the district court sentenced Gary to 11 months in prison but granted him probation for 18 months, with 30 days' jail time. Within a month, on June 30, 2004, the district court issued an arrest warrant for Gary, stating that he had violated a condition of his probation. In particular, the warrant stated that Gary was in violation of his probation, based on the fact that he had been charged on June 15 with attempted robbery. The conduct that formed the basis for the new charge had taken place on May 22, 2004—3 days before the sentencing hearing where probation was granted.

The defendant filed a motion to dismiss the probation violation on the grounds that the basis for revocation of his probation occurred 3 days before the date he was granted probation on May 25, 2004, and was therefore outside the probationary period. At the revocation hearing on August 18, 2004, the defendant's counsel stipulated for purposes of the hearing that the defendant committed an attempted robbery on May 22, 2004. He argued that "because the crime alleged to have happened didn't happen during his period of probation, . . . the court lack[ed] jurisdiction to hear a probation violation hearing as to that offense."

The prosecutor acknowledged that "technically, he [Gary] was not on probation at the time of the commission of that offense," but instead argued that "he was on felony bond." The prosecutor further argued notwithstanding the jurisdictional question that "it does seem to . . . defy common sense that this court must ignore what he did 24 hours [sic] prior to appearing before your Honor and being sentenced."

The district court revoked Gary's probation and reimposed his original sentence of 11 months' imprisonment.

The Court of Appeals

The Court of Appeals reversed the district court's revocation of probation in Gary, 34 Kan.App.2d at 601, 121 P.3d 1000, concluding that K.S.A.2005 Supp. 22-3716 does not authorize warrants to be issued for conduct occurring prior to the grant of probation. The court further reasoned that the statute's plain language provides that revocation can only occur when there has been a violation of the terms of probation and "there were simply no terms in place when Gary allegedly committed the attempted robbery." 34 Kan. App.2d at 601, 121 P.3d 1000. We agree.

State's Arguments

The State argues before this court that a revocation of probation for a crime committed by a defendant 3 days before being granted probation is neither arbitrary nor fanciful, but eminently reasonable and therefore constitutes an exercise of sound discretion by the district court. Since our scope of review on appeal from a probation revocation decision is abuse of discretion, State v. Moon, 15 Kan.App.2d 4, 10-11, 801 P.2d 59 (1990), rev. denied 248 Kan. 998 (1991), overruled on other grounds State v. Sutherland, 248 Kan. 96, 804 P.2d 970 (1991), and since, according to the State's argument, no reasonable person would disagree with the district court's decision to revoke, the State contends that there was no abuse of discretion and we should affirm the district court.

In the alternative, the State advances a new argument, one that was briefly mentioned but not argued before the Court of Appeals: Lorenzo Gary's concealment of his new crime at the time he was granted probation amounts to misrepresentation and fraudulent concealment, providing the district court grounds for revocation of his probation.

Standard of Review

We are not dealing in this case with the question of whether a proven violation of a condition of probation supports the revocation of probation. If that were the case, we would apply the abuse of discretion standard advanced by the State. What we have here is a question of whether a violation of the law, not a condition of probation, may nevertheless support the revocation of probation or provide a district court with jurisdiction to consider revocation.

The answer to this case lies in the interpretation of K.S.A.2005 Supp. 22-3716 and K.S.A.2005 Supp. 21-4610, relating to probation. "Interpretation of a statute is a question of law, and the appellate court's review is unlimited." Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003) (citing Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 [2000]). This court recently explained that "even abuse of discretion standards can sometimes more accurately be characterized as questions of law requiring de novo review." State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005). We quoted the United States Supreme Court in Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), which stated:

"`Little turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse-of-discretion standard does not mean a mistake of law is beyond appellate correction. A district court by definition abuses its discretion when it makes an error of law. . . . The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.'" 279 Kan. at 332, 109 P.3d 1199.

The question on appeal is thus a question of law dependent upon the laws of this state. Contrary to the State's position that we must evaluate the action of the district court on the basis of whether revocation was reasonable, we are required to determine whether as a matter of law the act of revocation by the district court was legally permissible under Kansas law. Our standard of review is therefore unlimited.


Probation from serving a sentence under Kansas law is generally considered "an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not as a matter of right." State v. Lumley, 267 Kan. 4, 8, 977 P.2d 914 (1999) (citing State v. Yura, 250 Kan. 198, Syl. ¶ 2, 825 P.2d 523 [1992]). As the Lumley court explained:

"The procedure to be followed when a judge acts upon a defendant's violation of a condition of probation is set out in K.S.A. 22-3716. [Citation omitted.] Implicit in our statutory provisions for probation is the understanding that unless required by law the court need not grant probation, but if it does so, the probationer is entitled to retain his or her liberty as long as he or she abides by the conditions on which probation is granted." 267 Kan. at 8, 977 P.2d 914 (citing Swope v. Musser, 223 Kan. 133, Syl. ¶ 1, 573 P.2d 587 [1977]).

Kansas law on probation revocations, contained in K.S.A.2005 Supp. 22-3716(a), is clear and provides in relevant part that "[a]t any time during probation . . . the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release or assignment, a notice to appear to answer to a charge of violation or a violation of the defendant's nonprison sanction." K.S.A.2005 Supp. 22-3716(b) continues: "Except as otherwise provided, if the violation is established, the court may continue or revoke the probation . . . 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 standard conditions for probation are set forth in K.S.A.2005 Supp. 21-4610. Subsection (a) of the statute states that "the court shall condition any order granting probation . . . on the defendant's obedience of the laws of the United States, the state of Kansas and any other jurisdiction to the laws of which the defendant may be subject." K.S.A.2005 Supp. 21-4610(a). In addition to the conditions imposed as part of every grant of probation (see K.S.A.2005 Supp. 21-4610[a] and [d]), the district court may "impose or modify any general or specific conditions of probation." K.S.A.2005 Supp. 21-4610(a).

The Court of Appeals correctly interpreted the provisions of K.S.A.2005 Supp. 22-3716(a). Revocation can only occur if there is a violation of terms of probation. "Kansas courts have consistently refused to depart from the plain language of that statute when addressing other issues presented under it." Gary, 34 Kan.App.2d at 601, 121 P.3d 1000.

This court articulated the general rule regarding the circumstances under which probation may be revoked in Swope v. Musser, 223 Kan. at 136-37, 573 P.2d...

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