No Retroactive Application: Probation Revocation and the 2019 Amendments

Author: Parker Bednasek, Staff Editor

State v. Dominguez, No. 121,618, (Kan. Ct. App. Aug. 28, 2020)

Issue: Prior to 2019, Kan. Stat. Ann. § 22-3716 (c)(1)(A)–(D)[1] required a court to impose both a jail sanction and a prison sanction before revoking a violator’s probation.  In 2019, the Legislature amended the statute, removing the prison sanction requirement.  Does the 2019 amendment apply retroactively to a defendant who committed her crimes and violated her probation before the amendment went into effect?

Answer: No.  The 2019 amendments do not apply retroactively because, generally, a statutory amendment does not apply retroactively except when the legislature intends for retroactive application or the amendment is procedural; neither exception applies to Kan. Stat. Ann. § 22-3716. 

Facts: In 2017, the district court sentenced Dominguez to 24 months of imprisonment.  However, she was granted 24 months of probation instead.  Shortly after, Dominguez violated her probation terms and served a jail sanction.  Nearly a year later, Dominguez again violated her probation terms.  Applying the 2019 amendments, the court ordered Dominguez to serve her original sentence, though the second violation took place in 2018.  

Discussion: Under Kansas law, a statutory change generally operates prospectively.  There are two exceptions: (1) the Legislature’s language clearly intends retroactive application; and (2) the change is procedural or remedial and does not prejudicially affect a party’s vested rights.  The first exception does not apply to the 2019 amendments because, although the statute uses retroactive language, the retroactive language was written in 2014.  The Legislature cannot intend for retroactive application to apply to something that did not exist at the time.  Additionally, the second exception does not apply to the 2019 amendments.  The 2019 amendments could fairly be characterized as procedural or remedial.  The change, however, affects a vested right because it makes probation revocation easier.  Because neither exception applies, the 2019 amendments only apply prospectively. 

Key Authorities:

Kan. Stat. Ann. § 22-3716 (c)(1)(C) (Supp. 2019) (requiring the district court to impose sanction before revoking probation)

White v. State, 421 P.3d 718 (Kan. 2018) (holding that statutory changes generally apply prospectively unless they fall under two exceptions)

State v. Coleman, 460 P.3d 828 (Kan. 2020) (reasoning that the Legislature’s language could not have intended retroactive application before an amendment existed)

[1] Kan. Stat. Ann. § 22-3716 (c)(1)(A)–(D)[1] (Supp. 2018). 

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