Roth Davies, LLC

7500 College Blvd.
Suite 700
Overland Park, KS 66210

Call For A Free Consultation

(913) 451-9500

Roth Davies, LLC

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Hosie, Nos. 111,623 111,624 111,625 111,626, 2015 WL 5312025
(Kan. Ct. App. Sept. 11, 2015).

The case answers the following issues:

  1. What is the appellate standard of review for reviewing abuse of discretion by a trial court?
  2. Is the sentencing rule for fleeing the police for a third time reviewable?

In this case, the issue included whether or not the district court erred by revoking the appellant’s probation in four cases and imposing the controlling sentence. Id. at *1. Specifically, the defendant argues that, under K.S.A. 2013 Supp. 22-3716, the court should have exercised discretion to continue his probation because “his behavior was improving”. Id. at *4. Here, the appellate court noted that “[p]robation from service of a sentence is an act of grace by the sentencing judge, and unless otherwise required by law, is granted as a privilege, not as a matter of right.” Id. at *5. Further, after evidence of a single probation violation, the decision to revoke the probation rests with the sound discretion of the district court. Id. The standard for reviewing if judicial discretion was abused includes; whether the action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Id.

Here, the defendant pled guilty to charges in three separate cases, which included charges of: residential burglary, felony theft, two counts of misdemeanor assault, driving under the influence, misdemeanor batter on a law enforcement officer, misdemeanor assault on a law enforcement officer, fleeing or attempting to elude a law enforcement officer, and misdemeanor theft. Id. at *1-*2. At sentencing, the district court granted 32 month’s imprisonment with a dispositional departure placing him on probation for 24 months, 16 months’ imprisonment for the felony conviction and 30 months in jail for the various misdemeanor offenses; in addition, the district court granted a dispositional departure to 24 months’ probation and ordered the 16-month felony sentence to run consecutive with the 32 month sentence, as well as a 1 year jail sentence to run concurrent. Id. at *2. The district court then revoked his probation and reinstated it twice for failing to obtain a mental health evaluation and to remain drug free as directed. Id. at *2-*3. The defendant then pled guilty to misdemeanor possession of marijuana, where the district court imposed a 12 month jail sentence and granted 12 month probation to run concurrent with the existing felony probation. Id. at *3. The district court then revoked probation again after the defendant failed to pay court ordered costs, submit to urinalysis tested report as directed follow the recommendations of his mental health and drug/alcohol evaluations and remain crime free and ordered the defendant to serve his underlying sentence. Id. The appellate court ultimately upheld the decision by the trial court to impose the underlying sentence providing the following reasoning. Id. at *6. The appellate court stated that the defendant failed to note an errors of fact or law by the district court in imposing the underlying sentence. Id. In addition, the court notes that due to the numerous violations of probation and without any indicator as to why the district court’s decision was arbitrary, fanciful, or unreasonable, the district court was well in their discretion to revoke his probation and order him to serve the underlying sentence. Id.

Roth Davies, LLC.

Get your questions answered - call for a free,
20-minute phone consultation (913) 451-9500.