State v. Elliott ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,413
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TABITHA JO ELLIOTT,
Appellant.
MEMORANDUM OPINION
Appeal from McPherson District Court; JOHN B. KLENDA, judge. Opinion filed August 5, 2022.
Affirmed and remanded with directions.
Submitted by the parties for summary disposition pursuant to K.S.A. 2021 Supp. 21-6820(g)
and (h).
Before WARNER, P.J., HURST, J., and TIMOTHY G. LAHEY, S.J.
PER CURIAM: Tabitha Jo Elliott contends the district court abused its discretion by
imposing a 60-day imprisonment sanction, rather than imposing available quick dip
sanctions, after finding she violated the conditions of her probation. We granted Elliott's
motion for summary disposition under Supreme Court Rule 7.041A (2022 Kan. S. Ct. R.
at 48).
K.S.A. 2018 Supp. 22-3716(c)(11) allows a district court discretion, when faced
with one or more probation violations, to impose either 60 days' imprisonment or some
other graduated sanction. Elliott recognizes the district court's broad discretion, citing
State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011) (district court abuses its discretion
only when no reasonable person would agree with its decision or when it bases its
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decision on an error of law or fact). And she notes that we do not have jurisdiction to
otherwise review a presumptive sentence, as she received. See State v. Huerta, 291 Kan.
831, 247 P.3d 1043 (2011). We agree these decisions are controlling and dispositive of
the case. We thus affirm the district court.
Although not raised by either party, we note the district court used a 2021 journal
entry of revocation form which incorrectly lists the 60-day sanction as being authorized
by K.S.A. 2021 Supp. 22-3716(c)(9), which is the current statutory section authorizing
the imposition of the sanction. Because the crime of conviction was committed in late
2018, the proper statutory authorization for the sanction was K.S.A. 2018 Supp. 22-
3716(c)(11). Consequently, we direct the district court to issue an order nunc pro tunc
correcting the statutory citation in the journal entry.
Affirmed and remanded with directions.
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