State v. Gordon
| Decision Date | 18 April 2003 |
| Docket Number | No. 625, No. 86, No. 624 |
| Parties | STATE OF KANSAS, Appellee, v. MICHAEL LEON GORDON and JAMES R. SCRIBNER, Appellants. |
| Court | Kansas Supreme Court |
Nathan B. Webb, assistant appellate defender, argued the cause, and Kristen Chowning, assistant appellate defender, and Randall L. Hodgkinson, deputy appellate defender, were with him on the brief for appellants.
Richard G. Guinn, assistant district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
These consolidated cases come before us on petition for review. The Court of Appeals, interpreting provisions of K.S.A. 2002 Supp. 21-4611 and K.S.A. 2002 Supp. 22-3716, concluded that the district court lacked jurisdiction to extend the defendants' probations and further concluded that the extension of Scribner's probation without a hearing was contrary to law. State v. Gordon, 30 Kan. App. 2d 852, 50 P.3d 100 (2002). We conclude that the district court retained jurisdiction under K.S.A. 2002 Supp. 21-4611 and K.S.A. 2002 Supp. 22-3716 to extend without hearings the defendants' probations. Therefore we reverse the Court of Appeals and affirm the district court.
On July 21, 1995, Michael Gordon pled guilty to one count of attempted felony theft, a level 10 nonperson felony. On October 20, 1995, Gordon was sentenced to 24 months of probation with an underlying sentence of 10 months. Gordon was also ordered to pay restitution in the amount of $13,286.69 at a rate of $100 monthly beginning November 1, 1995. Thus, Gordon's probation was scheduled to end October 20, 1997.
On February 5, 1996, the State moved to revoke probation with an amended motion filed March 21, 1996. The district court conducted a hearing on March 29, 1996, and revoked Gordon's probation. Gordon immediately moved to reinstate the probation. The court took the matter under advisement and set another hearing to reexamine the issue on May 2, 1996, when Gordon's probation was extended for 24 months. Thus, Gordon's probation was scheduled to end May 2, 1998.
On May 28, 1998, 26 days after Gordon's probation was to end, the State moved to revoke his probation. A hearing was conducted on July 10, 1998, and the district court revoked and then reinstated probation for 4 more months. At the hearing, Gordon's attorney said that "technically" the probation would have expired May 2, 1998, but did not argue that the court was without the power to extend probation. The court, ruling from the bench, ordered Gordon's probation be "reinstated for four more months." However, the written order of reinstatement of probation/parole filed July 17, 1998, indicated that Gordon's probation was extended for 24 months. Thus, Gordon's probation was set to end July 17, 2000.
Before his probation ended and without the hearing on July 10, 2000, the court ordered the extension of Gordon's probation until the restitution and other fees were paid. Gordon appealed the denial of his motion for his discharge from probation.
On November 17, 1994, James Scribner pled guilty to an amended complaint of attempted theft, a level 10 nonperson felony. On February 2, 1995, the district court sentenced Scribner to 36 months of probation with an underlying prison sentence of 6 months. The court ordered Scribner to pay restitution of $8,801.10 at a rate of $100 monthly beginning March 3, 1995.
On May 17, 1996, the court extended Scribner's probation for another 36 months. On October 24, 1997, the court extended Scribner's probation again for another 36 months. Thus, Scribner's probation was scheduled to end October 24, 2000.
On August 28, 2000, the court extended Scribner's probation until October 24, 2002, or until the balance of his restitution was paid.
Scribner moved the court to discharge his probation. The court denied Scribner's motion to discharge from probation, and Scribner appealed.
The Court of Appeals in a published opinion consolidated and dismissed the two cases, concluding in both cases that the final orders extending the probations were void ab initio because they were entered after both probations had expired. The Court of Appeals also concluded that assuming jurisdiction to extend in Scribner's case, the probation was extended in violation of the hearing requirement of K.S.A. 2002 Supp. 21-4611(c)(8). We granted the State's petition for review of the Court of Appeals' decision.
This case involves two issues of first impression in this state: (1) an interpretation of the provisions of K.S.A. 2002 Supp. 22-3716(d), which grants the district court a 30-day window in which to act upon a defendant's probation, and (2) an interpretation of K.S.A. 2002 Supp. 21-4611(c)(7), which permits extension of probation until restitution is paid.
The State argues that there existed a 30-day window under the provisions of K.S.A. 2002 Supp. 22-3716(d) after Gordon's probation was to end May 2, 1998, "to issue a warrant for the arrest or notice to appear for the defendant to answer a charge of a violation of the conditions of probation." K.S.A. 2002 Supp. 22-3716(d). Revocation proceedings against Gordon were initiated May 28, 1998, within the 30-day window based upon violations that occurred before his probationary period ended. Gordon's hearing on the motion for revocation was set for July 10, 1998. Upon hearing, the district court revoked Gordon's probation and reinstated his probation, extending it for 2 additional years to end July 17, 2000. Thus, according to the State's argument, the July 10, 2000, extension of Gordon's probation until restitution and other fees were paid was entered by the district court within Gordon's probationary term.
The Court of Appeals concluded that for the district court to retain jurisdiction over Gordon's probation, the revocation proceedings had to be initiated within the probation period. Since revocation proceedings were initiated May 28, 1998, and Gordon's probation ended May 2, 1998, the subsequent order revoking and extending his probation was void ab initio. Gordon, 30 Kan. App. 2d at 855. The Court of Appeals addressed the extended 30-day provisions of K.S.A. 22-3716(d), but concluded based upon our recent decision in State v. Ferguson, 271 Kan. 613, 617, 23 P.3d 891 (2001), that
If the State's interpretation of K.S.A. 2002 Supp. 22-3716(d) is correct, the district court retained jurisdiction over Gordon and its order extending probation until restitution was paid, is valid. If the Court of Appeals' interpretation of K.S.A. 2002 Supp. 22-3716(d) is correct, its conclusion that the district court had no jurisdiction over Gordon must be affirmed.
The interpretation of a statute is a question of law, and the appellate court's review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in it. State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001).
K.S.A. 2002 Supp. 22-3716 provides in part as follows:
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