State v. Rasler, 47388

• Decision Date: 01 March 1975
• Docket Number: No. 47388,47388
• Citation: 532 P.2d 1077,216 Kan. 292
• Parties: STATE of Kansas, Appellee, v. Glenn Gene RASLER, Appellant.
• Court: Kansas Supreme Court

Page 1077

532 P.2d 1077

216 Kan. 292

STATE of Kansas, Appellee, v. Glenn Gene RASLER, Appellant.

No. 47388.

Supreme Court of Kansas.

March 1, 1975.

Syllabus by the Court

1. To sustain an order revoking probation on the ground that a probationer has committed a criminal offense, it is not necessary that the commission of the offense be established by proof beyond a reasonable doubt.

2. Evidence that a probationer has been convicted by a jury of a crime committed while he was on probation is sufficient, under the circumstances shown of record, to sustain a finding by the trial court that the probationer has breached that condition of his probation requiring that he not violate the law in any manner, even though an appeal from such conviction be pending.

In an appeal from an order revoking probation under a suspended sentence, the record is examined and it is held: (1) The provisions of K.S.A. 22-3716 meet all constitutional requirements imposed upon a revocation proceeding; (2) the requirements of the statute were met; and (3) there was ample evidence to support the order of revocation.

Curtis Irby, Wichita, argued the cause and was on the brief for appellant.

Clifford L. Bertholf, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty., Gen., and Keith Sanborn, Dist. Atty., were with him on the brief for appellee.

KAUL, Justice:

Appellant-defendant (Glenn Gene Rasler), a probationer under suspension of sentencing, appeals from an order of revocation. On January 2, 1973, defendant entered a plea of guilty to a charge of unlawful possession of a firearm (K.S.A. 21-4204). The trial court suspended imposition of sentence for one year on condition that defendant spend sixty days in the county jail and thereafter comply with the conditions of probation specified by the court which were generally those enumerated in K.S.A. 21-4610.

The first condition specified in the court's order was that defendant not violate the law in any manner. The record indicates that defendant was released following his sixty day term in the county jail on or about March 12, 1973. Shortly thereafter, on March 18, 1973, defendant was charged with two counts of aggravated assault and one count of unlawful possession of a firearm after conviction of a felony. The charges stemmed from shooting incidents which took place during the night of March 18, 1973, on a street and in a night club in Wichita. The filing of these charges against defendant precipitated a hearing for the revocation of his pobation which was heard on March 27, 1973.

Defendant was represented by counsel at the revocation hearing and presented the testimony of several witnesses tending to establish an alibit with respect to the assault charges. At the conclusion of the hearing defendant requested that the trial court defer its ruling until after defendant's trial had been completed on the charges stemming from the incidents which occurred on March 18, 1973. The trial court granted the request. Thereafter, on June 14, 1973, defendant was convicted of aggravated assault and unlawful possession of a firearm. Following this conviction the trial court reconvened the revocation hearing, revoked the probation entered in the first case, and sentenced defendant to a term of not less than three nor more than ten years for the firearm violation that he had pled guilty to on January 2, 1973.

Defendant filed a motion to set aside the order which was overruled. Thereafter defendant filed a notice and perfected this appeal.

The record discloses that defendant had the assistance of counsel at all stages of the revocation proceedings.

Defendant specifies five points on appeal-in the first three of which he contends that K.S.A. 22-3716, dealing with the arrest of a probationer and procedure on revocation, is unconstitutional for several reasons. He first asserts that 22-3716 is unconstitutional because he claims that it establishes no definite grounds upon which probation may be revoked or denied. The statute clearly specifies that a violation of any of the conditions of probation is grounds for revocation. This is set forth in the first sentence of subsection (1) of the statute which reads:

'(1) At any time during probation or suspension of sentence the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release, or a notice to appear to answer to a charge of violation. . . .'

In the instant case a condition (a) of the order in question specifically provided that defendant not violate the law in any manner. Obviously, defendant must have known the charge he had to meet at the revocation hearing. In the recent case of Toman v. State, 213 Kan. 857, 518 P.2d 501, we considered 22-3716 and found:

'This statute appears to comply with the requirements of the due process clause of the United States Constitution as judicially declared in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.' (p. 859, 518 P.2d p. 503.)

We find no ambiguity or uncertainty in the statute in this regard which would make its constitutionality questionable.

Defendant's next constitutional argument is that 22-3716 is in conflict with the reasonable doubt standard of K.S.A. 21-3109. Defendant's position on this point appears to be that the constitution requires that the state meet the reasonable doubt standard in order to revoke a suspended sentence. At this point we should pause to observe that 22-3716 essentially puts revocation of probation and revocation of a sentence on the same level. The one practical difference is that when a suspended sentence is revoked the sentencing must follow. While revocation is not a part of the criminal prosecution, sentencing is. However, the Kansas statute gives a...