1 NOT DESIGNATED FOR PUBLICATION

No s . 1 2 1,346 121,347 121,348

IN THE COURT OF APPEALS OF THE S TATE OF KANSAS

S TATE OF K ANSAS , Appell ee ,

v.

J IMMY D UANE S UTTLE , Appell ant

.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; S TEPHEN J. T ERNES , judge. Opinion filed May 29, 20 20

. Sentence vacated

.

Sam Schirer , of Kansas Appellate Defender Office, for appellant

.

Matt J. Maloney , assistant district attorn ey, Marc Bennett , district attorney, and Derek Schmidt , district attorney, for appellee.

B efore S TANDRIDGE , P .J., H ILL and A TCHESON , J J.

P ER C URIAM : After Jimmy Suttle admitted that he committed voluntary manslaughter while he was on probation in three prior cases

— 13CR3362, 15CR220, and 15CR1216, the court revoked his probation in all three cases. Suttle now appeals the revocation of probation in 15CR 220. The State agrees the court could not revoke that probation because the term had already expired. Accordingly, we vacate that portion of
his sentence.2 Suttle's criminal history.

In 13CR3362, Suttle pled guilty to one count of forgery. He was sentenced to a suspended 10

- month prison sentence with 18 months of probation. This probation term was later extended by the court.

In 2015, Suttle was sentenced in two felony cases at the same hearing. In 15CR220, Suttle pled guilty to possession of met hamphetamine, a severity level 5 drug felony. In 15CR1261, he pled guilty to aggravated battery, aggravated assault, and criminal damage to property. The court granted a downward dispositional departure and sentenced Suttle to a total of 36 months' prob ation. On the journal entry , the probation term was specified as 12 months for 15CR220 and 36 months for 15CR1261. The presumptive probation term for his crime in 15CR220

— a severity level 5 drug felony

— was 12 months. See K.S.A. 2015 Supp. 21

- 6608(c)(3). The prison terms were 36 months
in 15CR220 and 77 months in 15CR1261.

In February 2016, Suttle consented to a 12

- month extension of his probation in 13CR3362 to March 3, 2017. The order did not implicate 15CR220 or 15CR1261.

In April 2016, Suttle stipulated to a probation violation for failing a drug test and the district court imposed a 120

- day prison sanction. The court extended Suttle's term of probation in 13CR3362 until December 9, 2018. But the court did not state that i t was extending probation in either of the 2015 cases. In fact, the journal entry of the probation violation hearing for 15CR220 stated that Suttle's original probation term was 12 months and his probation was not extended at the hearing.

After Suttle a dmitted he committed voluntary manslaughter in 2017, the State sought the revocation of his probation in all three prior cases. At the 2019 revocation3 hearing, Suttle stipulated to violating his probation in the three cases. The district court
revoked Sut tle's probation and ordered him to serve his prison sentence in each

case

— 13CR3362, 15CR220, and 15CR1216. Suttle timely appeals and his cases were consolidated on appeal.

A court cannot revoke a probation term that has already expired.

On appeal, Su ttle makes one argument

— that the district court did not have jurisdiction to revoke his probation in 15CR220. He contends his probation in that case concluded on December 9, 2016

— one year after the sentencing for that case. He
concedes that the district co urt had jurisdiction to revoke his probation in 13CR3362 and 15CR1261. The State agrees.

A court may only revoke a defendant's probation for conduct which occurred during his or her term of probation. There are no conditions of probation to violate when a defendant is not on probation. Because the parties agree that Suttle's probation in 15CR220 ended in December 2016, the district court had no jurisdiction to revoke that probation for conduct that occurred in May 2017. See State v. Skolaut , 286 Kan. 219,
232

- 34, 182 P.3d 1231 (2008).

We vacate Suttle's 36

- month prison sentence in case 15CR220.