                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                MAURICIO MARTINEZ,                                      No. 67709
                Appellant,
                vs.
                THE STATE OF NEVADA,
                                                                               FILED
                Respondent.                                                     FEB 1 0 2016
                                                                              TRACE K. UNDEMAN
                                                                           CLERK OF SUPREME COURT
                                                                          BY
                                                                                 DEPUTY CLERK

                                 ORDER OF REVERSAL AND REMAND
                            This is an appeal from an order for revocation of probation and
                amended judgment of conviction. Eighth Judicial District Court, Clark
                County; Douglas W. Herndon, Judge.
                            Appellant Mauricio Martinez contends that the district court
                erred by revoking his probation. Martinez argues that it was
                fundamentally unfair for the district court to revoke his probation based
                solely on his inability to meet the physical fitness goals of the boot camp
                program to which he was assigned as a term of his probation, where the
                inability was through no fault of his own. Cf. Bearden v. Georgia, 461 U.S.
                660, 664, 668 (1983) (holding that it is "fundamentally unfair," and thus a
                due process violation, to revoke probation where a "probationer has made
                all reasonable efforts to pay the fine or restitution, and yet cannot do so
                through no fault of his own").
                            The district court's decision to revoke probation will not be
                disturbed absent an abuse of discretion. Lewis   V   State, 90 Nev. 436, 438,
                529 P.2d 796, 797 (1974). The decision must be based on "evidence and
                facts [that] reasonably satisfy the judge that the             conduct of the
                probationer has not been as good as required by the conditions of
                probation." Id. (emphasis added); accord Anaya v. State, 96 Nev. 119, 122,
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                   606 P.2d 156, 157 (1980) (holding that due process requires that a
                   revocation of probation must "be based upon 'verified facts' so that 'the
                   exercise of discretion will be informed by an accurate knowledge of the
                   probationer's behavior" (emphasis added) (internal punctuation omitted)
                   (quoting Morrissey v. Brewer, 408 U.S. 471, 484 (1972))).
                               Here, the district court revoked Martinez's probation because
                   he was rejected from boot camp solely because he was unable to meet
                   specific physical fitness goals. Nothing in the record suggests that
                   Martinez's conduct or behavior was not as good as required by the
                   conditions of probation. The evidence and facts before the district court
                   suggest that Martinez's conduct was commendable: in his 156 days in boot
                   camp, he had no disciplinary issues, lost 100 pounds, and reduced his
                   timed 2-mile run from more than 30 minutes to 18 minutes. Martinez's
                   only failure was that, despite 11 attempts, his conduct did not end in the
                   desired result of meeting the program's goals of running 2 miles in 15
                   minutes or less and performing 1 pull-up.
                               The State argues that Martinez's case is analogous to Sobota
                   v. Williard, 427 P.2d 758 (Or. 1967). We disagree. In Sobota, probation
                   was revoked because the probationer violated the condition that he refrain
                   from drinking intoxicants.    Id. at 758-59. The Oregon supreme court
                   rejected the probationer's argument that the condition was unreasonable
                   and unconstitutionally deprived him of liberty because it was predictable
                   that he, an alcoholic, would fail. Id. at 759. Looking to the rehabilitation
                   purpose of probation, the Oregon court noted that probation must "include
                   at least an attempt to cause the person to discontinue the kind of conduct
                   which resulted in his conviction." Id. Martinez's case is distinguishable in
                   two important ways. First, at a practical level, there is a fundamental

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                difference between refraining from an action (drinking) and meeting an
                undefined goal (passing boot camp) which in turn requires accomplishing
                something that cannot necessarily be achieved through mere
                determination or effort (performing specific physical feats). Second,
                looking to the purpose of probation, nothing in the record before this court
                suggests that Martinez's criminal conduct was the result of his not being
                physically fit. See Bearden, 461 U.S. at 668 n.9 ("In contrast to a condition
                like chronic drunken driving, however, the condition at issue here-
                indigency—is itself no threat to the safety or welfare of society.").
                            The State also argues that the district court revoked probation
                not just for Martinez's failure to complete the boot camp program but also
                because of his prior failures to adhere to the conditions of probation.
                While the district court did mention Martinez's past probation failures
                that resulted in the imposition of the boot camp program, the district court
                clearly based the revocation on his inability to perform specific physical
                feats when it commended Martinez's progress but finished with, "I can't
                get past your complete failure to do any of the three [physical]
                requirements."
                            The district court revoked probation without finding that
                Martinez's conduct had not been as good as required. The district court
                thus abused its discretion in revoking Martinez's probation. The district
                court shall conduct a new revocation hearing to consider whether
                Martinez's conduct, rather than the results thereof, were as good as




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                   required by the conditions of probationl and proceed accordingly. We
                   therefore
                                 ORDER the judgment of the district court REVERSED AND
                   REMAND this matter to the district court for proceedings consistent with
                   this order.



                                                                                        , C.J.
                                                            Parraguirre


                                                                                           J.
                                                            Douglas



                                                            Cherry




                   cc: Hon. Douglas W. Herndon, District Judge
                        Clark County Public Defender
                        Attorney General/Carson City
                        Clark County District Attorney
                        Eighth District Court Clerk




                         1-We note that the ability of anyone other than Martinez to perform a
                   specific physical act is immaterial to this inquiry.


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