State v. Robinson

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Nos. 103,152
103,153

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBBIE ROBINSON,
Appellant.

SYLLABUS BY THE COURT

The State does not waive a probation violation if it simply lodges a detainer but
does not execute a probation violation warrant when the violator is in prison in another
state. The use of a detainer is satisfactory evidence of diligence by the State.

Appeal from Crawford District Court; DONALD R. NOLAND, judge. Opinion filed January 7,
2011. Affirmed.

Theresa L. Barr, of Kansas Appellate Defender Office, for appellant.

Michael Gayoso, Jr., county attorney, and Steve Six, attorney general, for appellee.

Before PIERRON, P.J., MARQUARDT AND ATCHESON, JJ.

PIERRON, J.: Robbie Robinson appeals the summary dismissal of his pro se
motion to correct an illegal sentence based on the revocation of his probation. Robinson
argues there was an unreasonable delay in revoking his probation and the State waived
any probation violations.

2

Although we generally review a probation revocation for an abuse of discretion, a
district court necessarily abuses its discretion when it makes an error of law. When a
question of law is at issue, review is de novo. State v. Gary, 282 Kan. 232, 236, 144 P.3d
634 (2006). Whether the constitutional right to due process has been violated is a
question of law over which this court has unlimited review. State v. Hall, 287 Kan. 139,
143, 195 P.3d 220 (2008). Whether the district court had jurisdiction to revoke probation
is also a jurisdictional issue subject to unlimited review. See State v. Bennett, 36 Kan.
App. 2d 381, 384, 138 P.3d 1284, rev. denied 282 Kan. 792 (2006).

The Due Process Clause of the Fourteenth Amendment of the United States
Constitution imposes procedural and substantive limits on the district court's ability to
revoke a defendant's probation. State v. Walker, 260 Kan. 803, Syl. ¶ 2, 926 P.2d 218
(1996). Although a court has jurisdiction to revoke probation after a probationary period
expires, due process requires that the State act in a timely and reasonable manner. State v.
Haines, 30 Kan. App. 2d 110, 112, 39 P.3d 95 (2002). On several occasions, Kansas
courts have addressed whether a delay between the issuance and execution of a probation
revocation warrant was unreasonable, thus, denying a probationer his or her right to due
process and depriving the court of jurisdiction over the violator. One case in particular
addresses the issues before us.

In Hall, 287 Kan. 139, the Supreme Court held that if an alleged probation violator
is imprisoned on a new felony conviction in another county, the State does not waive a
probation violation if it simply lodges a detainer but does not execute a probation
violation warrant while the violator is in prison. In other words, the use of a detainer is
satisfactory evidence of diligence by the State. State v. Gibson, No. 100,487, unpublished
Court of Appeals opinion filed July 23, 2010, applied Hall to an out-of-state confinement.
We note that after a detainer is filed a prisoner can then request a disposition of the
detainer. See K.S.A. 22-4401 et seq.

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Here, the motion at issue to revoke Robinson's probation with accompanying
warrant was filed by the State on March 14, 2006. Robinson argues his 12-month
probation period began in December 2005 and ended in December 2006, and the State
failed to prosecute the warrant without unreasonable delay. However, on March 1, 2006,
Robinson was incarcerated on charges of first-degree battery in Arkansas. A warrant filed
on December 12, 2007, indicates that on March 16, 2006, Robinson was in custody and a
hold was placed on him by phone and fax. Robinson was in custody in Arkansas on the
battery charges until he was returned to the Crawford County jail by secured
transportation on December 4, 2007. Robinson made his probation revocation first
appearance on December 5, 2007. On December 28, 2007, the district court held an
evidentiary hearing and revoked Robinson's probation.

Robinson attempted to appeal the revocation of this probation, but the appeal was
never perfected. On May 22, 2009, nearly 1 1/2 years after the district court denied his
motion for reconsideration on January 24, 2008, Robinson filed a pro se motion to correct
an illegal sentence claiming the district court was without jurisdiction to revoke his
probation. Robinson claimed the State had waived the probation violations through
unreasonable delay in bringing the violations to court. The district court summarily
denied the motion finding there was nothing illegal regarding Robinson's sentences and
the delay in processing the probation revocation was occasioned on Robinson's
incarceration in Arkansas.

Based on the Supreme Court's ruling in Hall, we hold there was sufficient
evidence that the State acted with reasonable diligence in investigating Robinson's
whereabouts and pursuing the probation violation warrant and putting a hold on Robinson
in Arkansas. A warrant for Robinson's arrest was in place the entire time, and he was
obviously not brought into custody in Kansas because he was incarcerated in Arkansas.
Because the State acted with reasonable diligence, it did not waive its right to prosecute
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the probation violation warrant and the district court did not lose jurisdiction to consider
the matter.

Affirmed.