K.S.A. Chapter 21 - Article 46
SENTENCING
Current through End
of 2008 Legislative Session
21-4601 Construction.
21-4602 Definitions.
21-4603 Authorized
dispositions; crimes committed prior to
21-4603b House
arrest program; eligibility; methods; notice to law enforcement officers;
administration.
21-4603d 21-4603d.
Authorized dispositions, crimes committed on or after
21-4604 Presentence
investigation and report.
21-4605 Availability
of reports to counsel; exception.
21-4606 Criteria
for fixing minimum terms; crimes committed prior to
21-4606a Presumptive
sentence of probation for certain class D or E felons; crimes committed prior
to
21-4606b Presumptive
sentence of assignment to community correctional services program for certain
class D or E felons; aggravating circumstances to be considered; crimes
committed prior to
21-4607 Criteria
for imposing fines.
21-4608 Multiple
sentences; defendant subject to or under sentence in federal court or court of
another state.
21-4609 Custody
of persons sentenced to confinement; notice of modification of sentence.
21-4610 Conditions
of probation or suspended sentence.
21-4610a Probation
or community correctional services fee.
21-4611 Period
of suspension of sentence, probation or assignment to community corrections;
parole of misdemeanant; duration of probation in felony cases, modification or
extension.
21-4612 Parole
from sentence imposed by district magistrate judge.
21-4613 Transfer
of supervision of person paroled, on probation, assigned to community
corrections or under suspended sentence.
21-4614 Deduction
of time spent in confinement.
21-4614a Deduction
of time spent in residential facility, conservation camp or community correctional
residential services program.
21-4615 Rights
of imprisoned persons; restoration.
21-4618 Mandatory
imprisonment for crimes involving firearms; crimes committed prior to
21-4619 Expungement
of certain convictions, arrest records and diversion agreements.
21-4620 Defendants
sentenced to custody of secretary of corrections; judgment form and contents;
diagnostic reports to accompany defendant; crimes committed prior to
21-4621 Same;
order transferring custody to corrections.
21-4622 Persons
convicted of capital murder, sentencing.
21-4623 Same;
persons determined to be mentally retarded.
21-4624 Same;
proceeding to determine if person shall be sentenced to death; notice; trial
judge; jury.
21-4625 Same;
aggravating circumstances.
21-4626 Persons
convicted of capital murder; mitigating circumstances.
21-4627 Same;
automatic review by and appeal to supreme court.
21-4629 Same;
provisions of act held unconstitutional; modification of sentence previously
determined under this act.
21-4630 Same;
severability.
21-4631 Same;
provisions of K.S.A. 21-4622 through 21-4630 supplemental to
21-4632 Defendants
sentenced to custody of secretary of corrections; judgment form, content;
presentence investigation and other diagnostic reports to accompany defendant;
crimes committed on or after July 1, 1993.
21-4633 Sentencing
of certain persons to mandatory term of imprisonment of 40 years; juveniles
prosecuted as adults.
21-4634 Same;
persons determined to be mentally retarded.
21-4635 Sentencing
of certain persons to mandatory term of imprisonment of 40 or 50 years;
determination; evidence presented; balance of aggravating and mitigating
circumstances.
21-4636 Same;
aggravating circumstances.
21-4637 Same;
mitigating circumstances.
21-4638 Same;
imposition of sentence of mandatory imprisonment of 40 years or 50 years.
21-4639 Same;
provisions of act held unconstitutional; modification of sentence previously determined
under this act.
21-4640 Same;
severability.
21-4641 Same;
provisions of K.S.A. 21-4633 through 21-4640 supplemental to
21-4642 Aggravated
habitual sex offender; sentence to imprisonment for life without parole.
21-4643 Mandatory
term of imprisonment of 25 or 40 years for certain sex offenders; exceptions.
21-4644 Modification
of sentence previously determined under act; when.
21-4645 Severability.
This
article shall be liberally construed to the end that persons convicted of crime
shall be dealt with in accordance with their individual characteristics,
circumstances, needs, and potentialities as revealed by case studies; that
dangerous offenders shall be correctively treated in custody for long terms as
needed; and that other offenders shall be dealt with by probation, suspended
sentence, fine or assignment to a community correctional services program
whenever such disposition appears practicable and not detrimental to the needs
of public safety and the welfare of the offender, or shall be committed for at
least a minimum term within the limits provided by law.
History: L. 1969, ch.
180, § 21-4601; L. 1986, ch. 123, § 4; July 1.
As used in
K.S.A. 21-4601 through 21-4621, and amendments thereto:
(a)
"Court" means any court having jurisdiction and power to sentence
offenders for violations of the laws of this state.
(b)
"Suspension of sentence" means a procedure under which a defendant,
found guilty of a crime, upon verdict or plea, is released by the court without
imposition of sentence. The release may
be with or without supervision in the discretion of the court. In felony cases, the court may include
confinement in a county jail not to exceed 60 days, which need not be served
consecutively, as a condition of suspension of sentence pursuant to subsection
(b)(4) of K.S.A. 21-4603 and amendments thereto.
(c)
"Probation" means a procedure under which a defendant, found guilty
of a crime upon verdict or plea, is released by the court after imposition of
sentence, without imprisonment except as provided in felony cases, subject to
conditions imposed by the court and subject to the supervision of the probation
service of the court or community corrections.
In felony cases, the court may include confinement in a county jail not
to exceed 60 days, which need not be served consecutively, as a condition of an
original probation sentence and up to 60 days in a county jail upon each
revocation of the probation sentence pursuant to subsection (b)(3) of K.S.A.
21-4603 and amendments thereto.
(d)
"Parole" means the release of a prisoner to the community by the
Kansas parole board prior to the
expiration of such prisoner's term, subject to conditions imposed by the board
and to the secretary of correction's supervision. Parole also means the release by a court of competent
jurisdiction of a person confined in the county jail or other local place of
detention after conviction and prior to expiration of such person's term,
subject to conditions imposed by the court and its supervision. Where a court or other authority has filed a
warrant against the prisoner, the Kansas parole board or paroling court may
release the prisoner on parole to answer the warrant of such court or
authority.
(e)
"Correctional institution" means the Lansing correctional facility,
Hutchinson correctional facility, Topeka correctional facility, Norton
correctional facility, Ellsworth correctional facility, Winfield correctional
facility, Osawatomie correctional facility, Larned correctional mental health
facility, Toronto correctional work facility, Stockton correctional facility,
Wichita work release facility, El Dorado correctional facility, and any other
correctional institution established by the state for the confinement of
offenders, and under control of the secretary of corrections.
(f) "Community
correctional services program" means a program which operates under the
community corrections act and to which a defendant is assigned for supervision,
confinement, detention, care or treatment, subject to conditions imposed by the
court. A defendant assigned to a
community correctional services program shall be subject to the continuing
jurisdiction of the court and in no event shall be considered to be in the
custody of or under the supervision of the secretary of corrections.
(g)
Postrelease supervision, for crimes committed on or after July 1, 1993, means
the same as provided in K.S.A. 21-4703 and amendments thereto.
History: L. 1969, ch.
180, § 21-4602; L. 1973, ch. 339, § 74; L. 1983, ch. 284, § 2; L. 1986, ch.
123, § 5; L. 1987, ch. 335, § 4; L. 1990, ch. 309, § 12; L. 1991, ch. 88, § 1;
L. 1991, ch. 89, § 3; L. 1992, ch. 245, § 2; L. 1993, ch. 291, § 181; L. 2000,
Ch. 182, § 1; July 1.
21-4603. Authorized dispositions; crimes committed
prior to July 1, 1993.
(a)
Whenever any person has been found guilty of a crime and the court finds that
an adequate presentence investigation cannot be conducted by resources
available within the judicial district, including mental health centers and
mental health clinics, the court may require that a presentence investigation
be conducted by the Topeka correctional facility or by the state security
hospital. If the offender is sent to the Topeka correctional facility or the
state security hospital for a presentence investigation under this section, the
correctional facility or hospital may keep the offender confined for a maximum
of 60 days, except that an inmate may be held for a longer period of time on
order of the secretary, or until the court calls for the return of the
offender. While held at the Topeka correctional facility or the state security
hospital the defendant may be treated the same as any person committed to the
secretary of corrections or secretary of social and rehabilitation services for
purposes of maintaining security and control, discipline, and emergency medical
or psychiatric treatment, and general population management except that no such
person shall be transferred out of the state or to a federal institution or to
any other location unless the transfer is between the correctional facility and
the state security hospital. The correctional facility or the state security
hospital shall compile a complete mental and physical evaluation of such
offender and shall make its findings and recommendations known to the court in
the presentence report.
(b) Except
as provided in subsection (c), whenever any person has been found guilty of a
crime, the court may adjudge any of the following:
(1) Commit
the defendant to the custody of the secretary of corrections or, if confinement
is for a term less than one year, to jail for the term provided by law;
(2) impose
the fine applicable to the offense;
(3) release
the defendant on probation subject to such conditions as the court may deem
appropriate, including orders requiring full or partial restitution. In felony
cases, the court may include confinement in a county jail not to exceed 60
days, which need not be served consecutively, as a condition of an original
probation sentence and up to 60 days in a county jail upon each revocation of the
probation sentence;
(4) suspend
the imposition of the sentence subject to such conditions as the court may deem
appropriate, including orders requiring full or partial restitution. In felony
cases, the court may include confinement in a county jail not to exceed 60
days, which need not be served consecutively, as a condition of suspension of
sentence;
(5) assign
the defendant to a community correctional services program subject to the
provisions of K.S.A. 75-5291, and amendments thereto, and such conditions as
the court may deem appropriate, including orders requiring full or partial
restitution;
(6) assign
the defendant to a conservation camp for a period not to exceed six months;
(7) assign
the defendant to a house arrest program pursuant to K.S.A. 21-4603b and
amendments thereto;
(8) order
the defendant to attend and satisfactorily complete an alcohol or drug
education or training program as provided by subsection (3) of K.S.A. 21-4502
and amendments thereto;
(9) order
the defendant to pay the administrative fee authorized by K.S.A. 1999 Supp.
22-4529 and amendments thereto, unless waived by the court; or
(10) impose any appropriate combination of subsections
(b)(1) through (b)(9).
In addition
to or in lieu of any of the above, the court shall order the defendant to
submit to and complete an alcohol and drug evaluation, and pay a fee therefor,
when required by subsection (4) of K.S.A. 21-4502 and amendments thereto.
In addition
to any of the above, the court shall order the defendant to reimburse the state
general fund for all or a part of the expenditures by the state board of
indigents' defense services to provide counsel and other defense services to
the defendant. In determining the amount and method of payment of such sum, the
court shall take account of the financial resources of the defendant and the
nature of the burden that payment of such sum will impose. A defendant who has
been required to pay such sum and who is not willfully in default in the
payment thereof may at any time petition the court which sentenced the
defendant to waive payment of such sum or any unpaid portion thereof. If it
appears to the satisfaction of the court that payment of the amount due will
impose manifest hardship on the defendant or the defendant's immediate family,
the court may waive payment of all or part of the amount due or modify the
method of payment. The amount of attorney fees to be included in the court
order for reimbursement shall be the amount claimed by appointed counsel on the
payment voucher for indigents' defense services or the amount prescribed by the
board of indigents' defense services reimbursement tables as provided in K.S.A.
22-4522, and amendments thereto, whichever is less.
In imposing
a fine the court may authorize the payment thereof in installments. In
releasing a defendant on probation, the court shall direct that the defendant
be under the supervision of a court services officer. If the court commits the
defendant to the custody of the secretary of corrections or to jail, the court
may specify in its order the amount of restitution to be paid and the person to
whom it shall be paid if restitution is later ordered as a condition of parole
or conditional release.
The court
in committing a defendant to the custody of the secretary of corrections shall
fix a maximum term of confinement within the limits provided by law. In those
cases where the law does not fix a maximum term of confinement for the crime
for which the defendant was convicted, the court shall fix the maximum term of
such confinement. In all cases where the defendant is committed to the custody
of the secretary of corrections, the court shall fix the minimum term within
the limits provided by law.
(c)
Whenever any juvenile felon, as defined in K.S.A. 38-16,112, prior to its
repeal, has been found guilty of a class A or B felony, the court shall commit
the defendant to the custody of the secretary of corrections and may impose the
fine applicable to the offense.
(d)(1)
Except when an appeal is taken and determined adversely to the defendant as
provided in subsection (d)(2), at any time within 120 days after a sentence is
imposed, after probation or assignment to a community correctional services
program has been revoked, the court may modify such sentence, revocation of
probation or assignment to a community correctional services program by
directing that a less severe penalty be imposed in lieu of that originally
adjudged within statutory limits and shall modify such sentence if recommended
by the Topeka correctional facility unless the court finds and sets forth with
particularity the reasons for finding that the safety of members of the public
will be jeopardized or that the welfare of the inmate will not be served by
such modification.
(2) If an
appeal is taken and determined adversely to the defendant, such sentence may be
modified within 120 days after the receipt by the clerk of the district court
of the mandate from the supreme court or court of appeals.
(e) The
court shall modify the sentence at any time before the expiration thereof when
such modification is recommended by the secretary of corrections unless the
court finds and sets forth with particularity the reasons for finding that the
safety of members of the public will be jeopardized or that the welfare of the
inmate will not be served by such modification. The court shall have the power
to impose a less severe penalty upon the inmate, including the power to reduce
the minimum below the statutory limit on the minimum term prescribed for the
crime of which the inmate has been convicted. The recommendation of the
secretary of corrections, the hearing on the recommendation and the order of
modification shall be made in open court. Notice of the recommendation of
modification of sentence and the time and place of the hearing thereon shall be
given by the inmate, or by the inmate's legal counsel, at least 21 days prior
to the hearing to the county or district attorney of the county where the
inmate was convicted. After receipt of such notice and at least 14 days prior
to the hearing, the county or district attorney shall give notice of the
recommendation of modification of sentence and the time and place of the
hearing thereon to any victim of the inmate's crime who is alive and whose
address is known to the county or district attorney or, if the victim is
deceased, to the victim's next of kin if the next of kin's address is known to
the county or district attorney. Proof of service of each notice required to be
given by this subsection shall be filed with the court.
(f) After
such defendant has been assigned to a conservation camp but prior to the end of
180 days, the chief administrator of such camp shall file a performance report
and recommendations with the court. The court shall enter an order based on
such report and recommendations modifying the sentence, if appropriate, by
sentencing the defendant to any of the authorized dispositions provided in
subsection (b), except to reassign such person to a conservation camp as
provided in subsection (b)(6).
(g) This section shall not deprive the court of
any authority conferred by any other Kansas statute to decree a forfeiture of
property, suspend or cancel a license, remove a person from office, or impose
any other civil penalty as a result of conviction of crime.
(h) An application for or acceptance of
probation, suspended sentence or assignment to a community correctional
services program shall not constitute an acquiescence in the judgment for
purpose of appeal, and any convicted person may appeal from such conviction, as
provided by law, without regard to whether such person has applied for
probation, suspended sentence or assignment to a community correctional
services program.
(i) When it
is provided by law that a person shall be sentenced pursuant to K.S.A. 21-4628,
and amendments thereto, the provisions of this section shall not apply.
(j) The
provisions of this section shall apply to crimes committed before July 1, 1993.
History: L. 1969, ch.
180, § 21-4603; L. 1970, ch. 124, § 11; L. 1971, ch. 113, § 1; L. 1972, ch.
317, § 97; L. 1973, ch. 339, § 69; L. 1974, ch. 147, § 1; L. 1976, ch. 156, §
3; L. 1978, ch. 120, § 5; L. 1980, ch. 104, § 1; L. 1981, ch. 146, § 1; L.
1984, ch. 112, § 4; L. 1984, ch. 124, § 1; L. 1986, ch. 128, § 1; L. 1986, ch.
123, § 6; L. 1986, ch. 136, § 1; L. 1988, ch. 115, § 8; L. 1989, ch. 92, § 2;
L. 1990, ch. 99, § 12; L. 1990, ch. 309, § 13; L. 1990, ch. 149, § 1; L. 1991,
ch. 88, § 2; L. 1991, ch. 89, § 4; L. 1992, ch. 298, § 92; L. 1993, ch. 291, §
182; L. 1997, ch. 181, § 17; L. 1998, ch. 186, § 1; L. 2000, ch. 182, § 2; L.
2002, ch. 19, § 1; July 1.
21-4603b. House arrest program; eligibility; methods;
notice to law enforcement officers; administration.
(a) The
court or the secretary of corrections may implement a house arrest program for
defendants or inmates being sentenced by
the court or in the custody of the secretary of corrections, except:
(1) No
defendant shall be placed by the court under house arrest if found guilty of:
(A) Any
crime in article 34 or 35 of chapter 21 in the K.S.A. and amendments thereto,
for which the penalty is a class A or B felony;
(B) K.S.A.
21-3603, and amendments thereto; or
(C) K.S.A.
21-3609, and amendments thereto;
(2) no
inmate shall be placed under house arrest if such inmate's security status is
greater than minimum security; or
(3) no
inmate shall be placed under house arrest who has been denied parole by the
parole board within the last 6 months. Any inmate who, while participating in
the house arrest program, is denied parole by the parole board shall be allowed
to remain under house arrest until the completion of the sentence or until the
inmate is otherwise removed from the program.
(b) House
arrest is an individualized program in which the freedom of an inmate is restricted
within the community, home or noninstitutional residential placement and
specific sanctions are imposed and enforced. House arrest may include:
(1)
Electronic monitoring which requires a transmitter to be strapped to the
defendant or inmate which broadcasts an encoded signal to the receiver located
in the defendant's or inmate's home. The receiver is connected to a central
office computer and is notified of any absence of the defendant or inmate; or
(2) voice
identification-encoder which consists of an encoder worn by the defendant or
inmate. A computer is programmed to randomly call the defendant or inmate and
such defendant or inmate is required to provide voice identification and then
insert the encoder into the verifier box, confirming identity.
(c) Prior
to the placement of an inmate under house arrest, the court or secretary shall
provide written notification to the sheriff and district or county attorney of
the county in which any person under house arrest is to be placed and to the
chief law enforcement officer of any incorporated city or town in which such
person is to be placed of the placement of the person under house arrest within
the county or incorporated city or town.
(d) House
arrest sanctions shall be administered by the court and the secretary of
corrections, respectively, through rules and regulations, and may include, but
are not limited to, rehabilitative restitution in money or in kind, curfew,
revocation or suspension of the driver's license, community service,
deprivation of nonessential activities or privileges, or other appropriate
restraints on the inmate's liberty.
History: L. 1988, ch.
115, § 7; May 19.
21-4603d. Authorized dispositions, crimes committed on
or after July 1, 1993.
(a)
Whenever any person has been found guilty of a crime, the court may adjudge any
of the following:
(1) Commit
the defendant to the custody of the secretary of corrections if the current
crime of conviction is a felony and the sentence presumes imprisonment, or the
sentence imposed is a dispositional departure to imprisonment; or, if confinement is for a misdemeanor, to
jail for the term provided by law;
(2) impose
the fine applicable to the offense;
(3) release
the defendant on probation if the current crime of conviction and criminal
history fall within a presumptive nonprison category or through a departure for
substantial and compelling reasons subject to such conditions as the court may
deem appropriate. In felony cases except
for violations of K.S.A. 8-1567 and amendments thereto, the court may include
confinement in a county jail not to exceed 60 days, which need not be served
consecutively, as a condition of an original probation sentence and up to 60
days in a county jail upon each revocation of the probation sentence, or community
corrections placement;
(4) assign
the defendant to a community correctional services program as provided in
K.S.A. 75-5291, and amendments thereto, or through a departure for substantial
and compelling reasons subject to such conditions as the court may deem
appropriate, including orders requiring full or partial restitution;
(5) assign
the defendant to a conservation camp for a period not to exceed six months as a
condition of probation followed by a six-month period of follow-up through
adult intensive supervision by a community correctional services program, if
the offender successfully completes the conservation camp program;
(6) assign
the defendant to a house arrest program pursuant to K.S.A. 21-4603b and
amendments thereto;
(7) order
the defendant to attend and satisfactorily complete an alcohol or drug
education or training program as provided by subsection (3) of K.S.A. 21-4502
and amendments thereto;
(8) order
the defendant to repay the amount of any reward paid by any crime stoppers
chapter, individual, corporation or public entity which materially aided in the
apprehension or conviction of the defendant;
repay the amount of any costs and expenses incurred by any law
enforcement agency in the apprehension of the defendant, if one of the current
crimes of conviction of the defendant includes escape, as defined in K.S.A.
21-3809 and amendments thereto or aggravated escape, as defined in K.S.A.
21-3810 and amendments thereto; repay expenses incurred by a fire district,
fire department or fire company responding to a fire which has been determined
to be arson under K.S.A. 21-3718 or 21-3719, and amendments thereto, if the
defendant is convicted of such crime; repay the amount of any public funds
utilized by a law enforcement agency to purchase controlled substances from the
defendant during the investigation which leads to the defendant's conviction ;
or repay the amount of any medical costs and expenses incurred by any law
enforcement agency or county.. Such
repayment of the amount of any such costs and expenses incurred by a county,
law enforcement agency, fire district, fire department or fire company or any
public funds utilized by a law enforcement agency shall be deposited and
credited to the same fund from which the public funds were credited to prior to
use by the county, law enforcement agency; fire district, fire department or
fire company.
(9) order
the defendant to pay the administrative fee authorized by K.S.A. 2004 Supp.
22-4529 and amendments thereto, unless waived by the court;
(10) order
the defendant to pay a domestic violence special program fee authorized by
K.S.A. 2004 Supp. 20-369, and amendments thereto;
(11) impose
any appropriate combination of (1), (2), (3), (4), (5), (6), (7), (8) and, (9)
and (10); or
(12) suspend
imposition of sentence in misdemeanor cases.
(b) (1) In
addition to or in lieu of any of the above, the court shall order the defendant
to pay restitution, which shall include, but not be limited to, damage or loss
caused by the defendant's crime, unless the court finds compelling
circumstances which would render a plan of restitution unworkable. In regard to a violation of K.S.A. 21-4018,
and amendments thereto, such damage or loss shall include, but not be limited
to, attorney fees and costs incurred to repair the credit history or rating of
the person whose personal identification documents were obtained and used in
violation of such section, and to satisfy a debt, lien or other obligation
incurred by the person whose personal identification documents were obtained
and used in violation of such section.
If the court finds a plan of restitution unworkable, the court shall
state on the record in detail the reasons therefor.
(2) If the
court orders restitution, the restitution shall be a judgment against the
defendant which may be collected by the court by garnishment or other execution
as on judgments in civil cases. If,
after 60 days from the date restitution is ordered by the court, a defendant is
found to be in noncompliance with the plan established by the court for payment
of restitution, and the victim to whom restitution is ordered paid has not
initiated proceedings in accordance with K.S.A. 60-4301 et seq. and amendments
thereto, the court shall assign an agent procured by the attorney general
pursuant to K.S.A. 75-719 and amendments thereto to collect the restitution on
behalf of the victim. The administrative
judge of each judicial district may assign such cases to an appropriate
division of the court for the conduct of civil collection proceedings.
(c) In
addition to or in lieu of any of the above, the court shall order the defendant
to submit to and complete an alcohol and drug evaluation, and pay a fee
therefor, when required by subsection (4) of K.S.A. 21-4502 and amendments
thereto.
(d) In
addition to any of the above, the court shall order the defendant to reimburse
the county general fund for all or a part of the expenditures by the county to
provide counsel and other defense services to the defendant. Any such reimbursement to the county shall be
paid only after any order for restitution has been paid in full. In determining the amount and method of
payment of such sum, the court shall take account of the financial resources of
the defendant and the nature of the burden that payment of such sum will
impose. A defendant who has been
required to pay such sum and who is not willfully in default in the payment
thereof may at any time petition the court which sentenced the defendant to
waive payment of such sum or any unpaid portion thereof. If it appears to the satisfaction of the
court that payment of the amount due will impose manifest hardship on the
defendant or the defendant's immediate family, the court may waive payment of
all or part of the amount due or modify the method of payment.
(e) In
imposing a fine the court may authorize the payment thereof in
installments. In releasing a defendant
on probation, the court shall direct that the defendant be under the
supervision of a court services officer.
If the court commits the defendant to the custody of the secretary of
corrections or to jail, the court may specify in its order the amount of
restitution to be paid and the person to whom it shall be paid if restitution
is later ordered as a condition of parole, conditional release or postrelease
supervision.
(f) (1)
When a new felony is committed while the offender is incarcerated and serving a
sentence for a felony or while the offender is on probation, assignment to a
community correctional services program, parole, conditional release, or
postrelease supervision for a felony, a new sentence shall be imposed pursuant
to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments
thereto, and the court may sentence the offender to imprisonment for the new conviction,
even when the new crime of conviction otherwise presumes a nonprison
sentence. In this event, imposition of a
prison sentence for the new crime does not constitute a departure.
(2) When a
new felony is committed while the offender is incarcerated in a juvenile
correctional facility pursuant to K.S.A. 38-1671 prior to its repeal or K.S.A.
2006 Supp. 38-2373, and amendments thereto, for an offense, which if committed
by an adult would constitute the commission of a felony, upon conviction, the
court shall sentence the offender to imprisonment for the new conviction, even
when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison
sentence for the new crime does not constitute a departure. The conviction shall operate as a full and
complete discharge from any obligations, except for an order of restitution,
imposed on the offender arising from the offense for which the offender was
committed to a juvenile correctional facility.
(3) When a new felony is committed while the
offender is on release for a felony pursuant to the provisions of article 28 of
chapter 22 of the Kansas Statutes Annotated, or similar provisions of the laws
of another jurisdiction, a new sentence may be imposed pursuant to the consecutive
sentencing requirements of K.S.A. 21-4608 and amendments thereto, and the court
may sentence the offender to imprisonment for the new conviction, even when the
new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison
sentence for the new crime does not constitute a departure.
(g) Prior
to imposing a dispositional departure for a defendant whose offense is
classified in the presumptive nonprison grid block of either sentencing
guideline grid, prior to sentencing a defendant to incarceration whose offense
is classified in grid blocks 5-H, 5-I or 6-G of the sentencing guidelines grid
for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, or 3-I of the
sentencing guidelines grid for drug crimes, prior to sentencing a defendant to
incarceration whose offense is classified in grid blocks 4-E or 4-F of the
sentencing guideline grid for drug crimes and whose offense does not meet the
requirements of section 1 [of 2003 SB 123], and amendments thereto, prior to
revocation of a nonprison sanction of a defendant whose offense is classified
in grid blocks 4-E or 4-F of the sentencing guideline grid for drug crimes and
whose offense does not meet the requirements of section 1 [of 2003 SB 123], and
amendments thereto, or prior to revocation of a nonprison sanction of a
defendant whose offense is classified in the presumptive nonprison grid block
of either sentencing guideline grid or grid blocks 5-H, 5-I or 6-G of the
sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G,
3-H, or 3-I, of the sentencing guidelines grid for drug crimes, the court shall
consider placement of the defendant in the Labette correctional conservation
camp, conservation camps established by the secretary of corrections pursuant
to K.S.A. 75-52,127, and amendment thereto or a community intermediate sanction
center. Pursuant to this paragraph the
defendant shall not be sentenced to imprisonment if space is available in a
conservation camp or a community intermediate sanction center and the defendant
meets all of the conservation camp's or a community intermediate sanction
center's placement criteria unless the court states on the record the reasons
for not placing the defendant in a conservation camp or a community intermediate
sanction center.
(h) The
court in committing a defendant to the custody of the secretary of corrections
shall fix a term of confinement within the limits provided by law. In those cases where the law does not fix a
term of confinement for the crime for which the defendant was convicted, the
court shall fix the term of such confinement.
(i) In
addition to any of the above, the court shall order the defendant to reimburse
the state general fund for all or a part of the expenditures by the state board
of indigents' defense services to provide counsel and other defense services to
the defendant. In determining the amount
and method of payment of such sum, the court shall take account of the
financial resources of the defendant and the nature of the burden that payment
of such sum will impose. A defendant who
has been required to pay such sum and who is not willfully in default in the
payment thereof may at any time petition the court which sentenced the defendant
to waive payment of such sum or any unpaid portion thereof. If it appears to the satisfaction of the
court that payment of the amount due will impose manifest hardship on the
defendant or the defendant's immediate family, the court may waive payment of
all or part of the amount due or modify the method of payment. The amount of attorney fees to be included in
the court order for reimbursement shall be the amount claimed by appointed
counsel on the payment voucher for indigents' defense services or the amount
prescribed by the board of indigents' defense services reimbursement tables as
provided in K.S.A. 22-4522, and amendments thereto, whichever is less.
(j) This section shall not deprive the court of
any authority conferred by any other Kansas statute to decree a forfeiture of
property, suspend or cancel a license, remove a person from office, or impose
any other civil penalty as a result of conviction of crime.
(k) An
application for or acceptance of probation or assignment to a community
correctional services program shall not constitute an acquiescence in the
judgment for purpose of appeal, and any convicted person may appeal from such
conviction, as provided by law, without regard to whether such person has
applied for probation, suspended sentence or assignment to a community correctional
services program.
(l) The
secretary of corrections is authorized to make direct placement to the Labette
correctional conservation camp or a conservation camp established by the
secretary pursuant to K.S.A. 75-52,127, and amendments thereto, of an inmate
sentenced to the secretary’s custody if the inmate: (1) Has been sentenced to
the secretary for a probation revocation, as a departure from the presumptive
nonimprisonment grid block of either sentencing grid, for an offense which is
classified in grid blocks 5-H, 5-I, or 6-G of the sentencing guidelines grid
for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, or 3-I of the
sentencing guidelines grid for drug crimes, or for an offense which is
classified in gridblocks 4-E or 4-F of the sentencing guidelines grid for drug
crimes and such offense does not meet the requirements of section 1 [of 2003 SB
123] , and amendments thereto, and (2) otherwise meets admission criteria of
the camp. If the inmate successfully completes a conservation camp program, the
secretary of corrections shall report such completion to the sentencing court
and the county or district attorney. The inmate shall then be assigned by the
court to six months of follow-up supervision conducted by the appropriate
community corrections services program.
The court may also order that supervision continue thereafter for the
length of time authorized by K.S.A. 21-4611 and amendments thereto.
(m) When it
is provided by law that a person shall be sentenced pursuant to K.S.A. 1993 Supp.
21-4628, prior to its repeal, the provisions of this section shall not apply.
(n) Except
as provided by subsection (f) of K.S.A. 21-4705, and amendments thereto, in
addition to any of the above, for felony violations of K.S.A. 65-4160 or
65-4162, and amendments thereto, the court shall require the defendant who
meets the requirements established in section 1, and amendments thereto, to
participate in a certified drug abuse treatment program, as provided in section
2 [of 2003 SB 123], and amendments thereto, including but not limited to, an
approved after-care plan. If the
defendant fails to participate in or has a pattern of intentional conduct that
demonstrates the offender’s refusal to comply with or participate in the
treatment program, as established by judicial finding, the defendant shall be
subject to revocation of probation and the defendant shall serve the underlying
prison sentence as established in K.S.A. 21-4705, and amendments thereto. For those offenders who are convicted on or
after the effective date of this act, upon completion of the underlying prison
sentence, the defendant shall not be subject to a period of postrelease
supervision. The amount of time spent
participating in such program shall not be credited as service on the underlying
prison sentence.
History: L. 1992, ch.
239, § 238; L. 1993, ch. 165, § 1; L. 1994, ch. 21, § 2; L. 1994, ch. 348, §
10; L. 1995, ch. 121, § 1; L. 1995, ch. 257, § 1; L. 1996, ch. 195, § 2; L.
1997, ch. 34, § 1; L. 1997, ch. 181, § 18; L. 1998, ch. 186, § 2; L. 1999, ch.
164, § 13; L. 2000, ch. 182, § 3; L. 2001, ch. 177, § 8; L. 2002, ch. 19, § 2;
L. 2003, ch. 135, § 3; L. 2005, ch. 150, § 5; L. 2006, ch. 149, § 7; L. 2007,
ch. 198, § 4; July 1.
21-4604. Presentence investigation and report.
(a) Whenever
a defendant is convicted of a misdemeanor, the court before which the
conviction is had may request a presentence investigation by a court services
officer. Whenever a defendant is convicted of a felony, the court shall require
that a presentence investigation be conducted by a court services officer or in
accordance with K.S.A. 21-4603, and amendments thereto, unless the court finds
that adequate and current information is available in a previous presentence
investigation report or from other sources.
(b)
Whenever a presentence report is requested, the court services officer, with
the assistance of the county or district attorney, shall secure, except for
good cause shown, information concerning: (1) The circumstances of the offense
and any mitigating or aggravating factors involved in the defendant's behavior;
(2) the attitude of the complainant or victim and, if possible in homicide
cases, the victim's immediate family; (3) the criminal record, social history
and present condition of the defendant; and (4) any other facts or
circumstances that may aid the court in sentencing, which may include, but is
not limited to, the financial, social, psychological, physical or other harm or
loss suffered by victims of the offense and the restitution needs of such
victims. Except where specifically prohibited by law, all local governmental
and state agencies shall furnish to the officer conducting the presentence
investigation any records requested by the officer. If ordered by the court,
the presentence investigation shall include a physical and mental examination
of the defendant.
(c)
Presentence investigation reports shall be in the form and contain the
information prescribed by rule of the supreme court, and shall contain any
other information prescribed by the district court.
(d) The
judicial administrator of the courts shall confer and consult with the
secretary of corrections when considering changes or revisions in the form and
content of presentence investigation reports so that the reports will be in such
form and contain such information as will be of assistance to the secretary in
exercising or performing the secretary's functions, powers and duties.
(e) The
provisions of this section shall not apply to felony crimes committed on or
after July 1, 1993.
History: L. 1969, ch.
180, § 21-4604; L. 1970, ch. 124, § 12; L. 1978, ch. 120, § 6; L. 1980, ch.
101, § 1; L. 1984, ch. 112, § 5; L. 1985, ch. 110, § 1; L. 1991, ch. 90, § 1;
L. 1992, ch. 239, § 239; L. 1993, ch. 291, § 184; L. 1994, ch. 291, § 45; July 1.
21-4605. Availability of reports to counsel;
exception.
(a) (1) The
judge shall make available to the attorney for the state or counsel for the
defendant the presentence report, any report that may be received from the
Topeka correctional facility or the state security hospital and other
diagnostic reports and shall allow the attorney or counsel a reasonable time to
review the report before sentencing the defendant.
(2) The
court shall permit the attorney for the state or the counsel for the defendant
to copy and retain any of the reports under subsection (a)(1). Any reports
copied and retained shall be kept in the records of the attorney for the state
or the counsel for the defendant. All costs of copying such reports shall be
paid by the office of the attorney for the state or the counsel for the
defendant making the request.
(b) The
presentence report shall become part of the court record and shall be
accessible to the public, except that the official version, the defendant's
version, the victim's statement, any psychological reports and any drug and
alcohol reports shall be accessible only to the attorney for the state and the
counsel for the defendant, the sentencing judge, the department of corrections
and if requested, the Kansas sentencing commission. If the offender is
committed to the custody of the secretary of corrections, the report shall be
sent to the secretary and, in accordance with K.S.A. 75-5220 and amendments
thereto, to the warden of the state correctional institution to which the defendant
is conveyed.
(c) For
felony crimes committed on or after July 1, 1993, the provisions of this
section are not applicable to the presentence investigation report.
History: L. 1969, ch.
180, § 21-4605; L. 1972, ch. 317, § 98; L. 1973, ch. 339, § 70; L. 1978, ch.
120, § 7; L. 1982, ch. 138, § 1; L. 1990, ch. 115, § 1; L. 1990, ch. 309, § 14;
L. 1991, ch. 260, § 4; L. 1991, ch. 89, § 5; L. 1994, ch. 291, § 46; L. 1999,
ch. 164, § 14; July 1.
21-4606. Criteria for fixing minimum terms; crimes
committed prior to July 1, 1993.
(a) In
sentencing a person to prison, the court, having regard to the nature and
circumstances of the crime and the history, character and condition of the
defendant, shall fix the lowest minimum term which, in the opinion of such
court, is consistent with the public safety, the needs of the defendant, and
the seriousness of the defendant's crime.
(b) The
following factors, while not controlling, shall be considered by the court in
fixing the minimum term of imprisonment:
(1) The
defendant's history of prior criminal activity;
(2) The
extent of the harm caused by the defendant's criminal conduct;
(3) Whether
the defendant intended that the defendant's criminal conduct would cause or
threaten serious harm;
(4) The
degree of the defendant's provocation;
(5) Whether
there were substantial grounds tending to excuse or justify the defendant's
criminal conduct, though failing to establish a defense;
(6) Whether
the victim of the defendant's criminal conduct induced or facilitated its
commission;
(7) Whether
the defendant has compensated or will compensate the victim of the defendant's
criminal conduct for the damage or injury that the victim sustained.
(c) The
provisions of this section shall not apply to crimes committed on or after July
1, 1993.
History: L. 1969, ch.
180, § 21-4606; L. 1992, ch. 239, § 240; July 1, 1993.
21-4606a. Presumptive sentence of probation for certain
class D or E felons; crimes committed prior to July 1, 1993.
The
presumptive sentence for a person who has never before been convicted of a
felony, but has now been convicted of a class D or E felony or convicted of an
attempt to commit a class D felony shall be probation, unless the conviction is
of a crime or of an attempt to commit a crime specified in article 34, 35 or 36
of chapter 21 of Kansas Statutes Annotated or in the uniform controlled
substances act or the person convicted is a juvenile offender in the custody of
the department of social and rehabilitation services. In determining whether to
impose the presumptive sentence, the court shall consider any prior record of
the person's having been convicted or having been adjudicated to have
committed, while a juvenile, an offense which would constitute a felony if
committed by an adult. If the presumptive sentence provided by this section is
not imposed, the provisions of K.S.A. 21-4606b and amendments thereto shall
apply. The provisions of this section shall not apply to crimes committed on or
after July 1, 1993.
History: L. 1984, ch.
119, § 1; L. 1986, ch. 123, § 7; L. 1989, ch. 92, § 3; L. 1990, ch. 100, § 5;
L. 1992, ch. 239, § 241; July 1, 1993.
21-4606b. Presumptive sentence of assignment to
community correctional services program for certain class D or E felons;
aggravating circumstances to be considered; crimes committed prior to July 1,
1993.
(a) If
probation is not granted pursuant to K.S.A. 21-4606a, and amendments thereto,
subject to the provisions of K.S.A. 75-5291, and amendments thereto, the
presumptive sentence for a person convicted of a class D or E felony shall be
assignment to a community correctional services program on terms the court
determines.
(b) In
determining whether to impose the presumptive sentence provided by this
section, the court shall consider whether any of the following aggravating
circumstances existed:
(1) Whether
the crime is a felony violation of the uniform controlled substances act or an
attempt to commit such an offense;
(2) whether
the crime is a crime specified in article 34, 35 or 36 of chapter 21 of the
Kansas Statutes Annotated or an attempt to commit such an offense; or
(3) any
prior record of the person's having been convicted of a felony or having been
adjudicated to have committed, while a juvenile, an offense which would
constitute a felony if committed by an adult.
(c) The
provisions of this section shall not apply to crimes committed on or after July
1, 1993.
History: L. 1989, ch.
92, § 13; L. 1990, ch. 100, § 6; L. 1992, ch. 239, § 242; July 1, 1993; L.
2000, ch. 182, § 4; July 1.
21-4607.
Criteria for imposing fines.
(1) When
the law authorizes any other disposition, a fine shall not be imposed as the
sole and exclusive punishment unless having regard to the nature and
circumstances of the crime and to the history and character of the defendant,
the court is of the opinion that the fine alone suffices for the protection of
the public.
(2) The
court shall not sentence a defendant to pay a fine in addition to a sentence of
imprisonment, probation or assignment to a community correctional services
program unless:
(a) The
defendant has derived a pecuniary gain from the crime; or
(b) the
court is of the opinion that a fine is adapted to deterrence of the crime
involved or to the correction of the offender.
(3) In
determining the amount and method of payment of a fine, the court shall take
into account the financial resources of the defendant and the nature of the
burden that its payment will impose.
History: L. 1969, ch.
180, § 21-4607; L. 1986, ch. 123, § 8; July 1.
21-4608. Multiple sentences; defendant subject to or
under sentence in federal court or court of another state.
(a) When
separate sentences of imprisonment for different crimes are imposed on a
defendant on the same date, including sentences for crimes for which suspended
sentences, probation or assignment to a community correctional services program
have been revoked, such sentences shall run concurrently or consecutively as
the court directs. Whenever the record is silent as to the manner in which two
or more sentences imposed at the same time shall be served, they shall be
served concurrently, except as provided in subsections (c), (d) and (e).
(b) Any
person who is convicted and sentenced for a crime committed while on probation,
assignment to a community correctional services program, parole or conditional
release for a misdemeanor shall serve the sentence concurrently with or
consecutively to the term or terms under which the person was on probation,
assigned to a community correctional services program or on parole or conditional
release, as the court directs.
(c) Any
person who is convicted and sentenced for a crime committed while on probation,
assigned to a community correctional services program, on parole, on
conditional release or on postrelease supervision for a felony shall serve the
sentence consecutively to the term or terms under which the person was on
probation, assigned to a community correctional services program or on parole
or conditional release.
(d) Any
person who is convicted and sentenced for a crime committed while on release
for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes
Annotated shall serve the sentence consecutively to the term or terms under
which the person was released.
(e) (1) Any
person who is convicted and sentenced for a crime committed while such person
is incarcerated and serving a sentence for a felony in any place of
incarceration shall serve the sentence consecutively to the term or terms under
which the person was incarcerated.
(2) If a
person is sentenced to prison for a crime committed on or after July 1, 1993,
while the person was imprisoned for an offense committed prior to July 1, 1993,
and the person is not eligible for the retroactive application of the
sentencing guidelines act, the new sentence shall not be aggregated with the
old sentence but shall begin when the person is paroled or reaches the
conditional release date on the old sentence, whichever is earlier. If the offender was past the offender’s
conditional release date at the time the new offense was committed, the new
sentence shall not be aggregated with the old sentence but shall begin when the
person is ordered released by the Kansas parole board or reaches the maximum
sentence date on the old sentence, whichever is earlier. The new sentence shall then be served as
otherwise provided by law. The period of
post incarceration supervision shall be based on the longest term of post
incarceration supervision imposed for all crimes upon which sentence was imposed
or until discharged from supervision by the Kansas parole board. The term of post incarceration supervision
imposed by this paragraph shall apply retroactively to crimes committed prior
to the effective date of this act.
(3) As used
in this subsection, "post incarceration supervision" includes parole
and postrelease supervision.
(f) The
provisions of this subsection relating to parole eligibility shall be
applicable to persons convicted of crimes committed prior to January 1, 1979,
but shall be applicable to persons convicted of crimes committed on or after
that date only to the extent that the terms of this subsection are not in
conflict with the provisions of K.S.A. 22-3717 and amendments thereto. In
calculating the time to be served on concurrent and consecutive sentences, the
following rules shall apply:
(1) When
indeterminate terms run concurrently, the shorter minimum terms merge in and
are satisfied by serving the longest minimum term and the shorter maximum terms
merge in and are satisfied by conditional release or discharge on the longest
maximum term if the terms are imposed on the same date.
(2) When
concurrent terms are imposed on different dates, computation will be made to
determine which term or terms require the longest period of imprisonment to
reach parole eligibility, conditional release and maximum dates, and that
sentence will be considered the controlling sentence. The parole eligibility
date may be computed and projected on one sentence and the conditional release
date and maximum may be computed and projected from another to determine the
controlling sentence.
(3) When
indeterminate terms imposed on the same date are to be served consecutively,
the minimum terms are added to arrive at an aggregate minimum to be served
equal to the sum of all minimum terms and the maximum terms are added to arrive
at an aggregate maximum equal to the sum of all maximum terms.
(4) When
indeterminate sentences are imposed to be served consecutively to sentences
previously imposed in any other court or the sentencing court, the aggregated
minimums and maximums shall be computed from the effective date of the
subsequent sentences which have been imposed as consecutive. For the purpose of
determining the sentence begins date and the parole eligibility and conditional
release dates, the inmate shall be given credit on the aggregate sentence for
time spent imprisoned on the previous sentences, but not exceeding an amount
equal to the previous minimum sentence less the maximum amount of good time
credit that could have been earned on the minimum sentence. For the purpose of computing the maximum
date, the inmate shall be given credit for all time spent imprisoned on the
previous sentence. This method for computation of the maximum sentence shall be
utilized for all sentences computed pursuant to this subsection after July 1,
1983.
Nothing in
this subsection (f)(4) shall affect the authority of the Kansas parole board to
determine the parole eligibility of inmates pursuant to subsection (d) of
K.S.A. 22-3717 and amendments thereto.
(5) When consecutive
sentences are imposed which are to be served consecutive to sentences for which
a prisoner has been on probation, assigned to a community correctional services
program, on parole or on conditional release, the amount of time served on
probation, on assignment to a community correctional services program, on
parole or on conditional release shall not be credited as service on the
aggregate sentence in determining the parole eligibility, conditional release
and maximum dates, except that credit shall be given for any amount of time
spent in a residential facility while on probation or assignment to a community
correctional residential services program.
(g) When a
definite and an indefinite term run consecutively, the period of the definite
term is added to both the minimum and maximum of the indeterminate term and
both sentences are satisfied by serving the indeterminate term. The provisions
of this subsection shall not apply to crimes committed on or after July 1,
1993.
(h) When a
defendant is sentenced in a state court and is also under sentence from a
federal court or other state court or is subject to sentence in a federal court
or other state court for an offense committed prior to the defendant's sentence
in a Kansas state court, the court may direct that custody of the defendant may
be relinquished to federal or other state authorities and that such state
sentences as are imposed may run concurrently with any federal or other state
sentence imposed.
History: L. 1969, ch.
180, § 21-4608; L. 1978, ch. 120, § 8; L. 1982, ch. 150, § 1; L. 1983, ch. 111,
§ 1; L. 1985, ch. 111, § 1; L. 1986, ch. 123, § 9; L. 1987, ch. 113, § 1; L.
1989, ch. 92, § 24; L. 1992, ch. 239, § 243; L. 1993, ch. 291, § 272; L. 1994,
ch. 291, § 47; L. 2008, ch. 183, § 3; July 1.
21-4609. Custody of persons sentenced to confinement;
notice of modification of sentence.
When a
person is sentenced to imprisonment upon conviction of a felony, the judgment
of the court shall order that such person be committed, for such term or terms
as the court may direct, to the custody of the secretary of corrections. When such person is sentenced to the custody
of the secretary of corrections and such sentence is subsequently modified in
any respect, including discharge of such defendant from custody, by a court of
this state having jurisdiction of such matter, such court shall thereupon
notify the secretary of corrections of the nature of such modification.
The
secretary of corrections may designate as the place of confinement any available
and suitable correctional institution or facility maintained by the state of
Kansas or a political subdivision thereof.
Any person
serving a sentence of imprisonment may be transferred from one institution to
another by order of the secretary of corrections.
History: L. 1969, ch.
180, § 21-4609; L. 1972, ch. 317, § 99; L. 1973, ch. 339, § 71; L. 1976, ch.
160, § 1; July 1.
21-4610. Conditions of probation or suspended
sentence.
(a) Except
as required by this subsection and subsection (d), nothing in this section
shall be construed to limit the authority of the court to impose or modify any
general or specific conditions of probation, suspension of sentence or
assignment to a community correctional services program, except that the court
shall condition any order granting probation, suspension of sentence or
assignment to a community correctional services program on the defendant's
obedience of the laws of the United States, the state of Kansas and any other
jurisdiction to the laws of which the defendant may be subject. The provisions of K.S.A. 75-5291, and
amendments thereto, shall be applicable to any assignment to a community
correctional services program pursuant to this section.
(b) The
court services officer or community correctional services officer may
recommend, and the court may order, the imposition of any conditions of
probation, suspension of sentence or assignment to a community correctional
services program. For crimes committed
on or after July 1, 1993, in presumptive nonprison cases, the court services
officer or community correctional services officer may recommend, and the court
may order, the imposition of any conditions of probation or assignment to a
community correctional services program.
The court may at any time order the modification of such conditions,
after notice to the court services officer or community correctional services
officer and an opportunity for such officer to be heard thereon. The court shall cause a copy of any such order
to be delivered to the court services officer and the probationer or to the
community correctional services officer and the community corrections
participant, as the case may be. The
provisions of K.S.A. 75-5291, and amendments thereto, shall be applicable to
any assignment to a community correctional services program pursuant to this
section.
(c) The
court may impose any conditions of probation, suspension of sentence or
assignment to a community correctional services program that the court deems
proper, including but not limited to requiring that the defendant:
(1) Avoid
such injurious or vicious habits, as directed by the court, court services
officer or community correctional services officer;
(2) avoid
such persons or places of disreputable or harmful character, as directed by the
court, court services officer or community correctional services officer;
(3) report
to the court services officer or community correctional services officer as
directed;
(4) permit
the court services officer or community correctional services officer to visit
the defendant at home or elsewhere;
(5) work
faithfully at suitable employment insofar as possible;
(6) remain
within the state unless the court grants permission to leave;
(7) pay a
fine or costs, applicable to the offense, in one or several sums and in the
manner as directed by the court;
(8) support
the defendant's dependents;
(9) reside
in a residential facility located in the community and participate in
educational, counseling, work and other correctional or rehabilitative
programs;
(10) perform
community or public service work for local governmental agencies, private
corporations organized not for profit, or charitable or social service
organizations performing services for the community;
(11)
perform services under a system of day fines whereby the defendant is required
to satisfy fines, costs or reparation or restitution obligations by performing
services for a period of days determined by the court on the basis of ability
to pay, standard of living, support obligations and other factors;
(12)
participate in a house arrest program pursuant to K.S.A. 21-4603b, and
amendments thereto;
(13) order
the defendant to pay the administrative fee authorized by K.S.A. 1999 Supp.
22-4529 and amendments thereto, unless waived by the court; or
(14) in
felony cases, except for violations of K.S.A. 8-1567 and amendments thereto, be
confined in a county jail not to exceed 60 days, which need not be served
consecutively.
(d) In
addition to any other conditions of probation, suspension of sentence or assignment
to a community correctional services program, the court shall order the
defendant to comply with each of the following conditions:
(1) Make
reparation or restitution to the aggrieved party for the damage or loss caused
by the defendant's crime, in an amount and manner determined by the court and
to the person specified by the court, unless the court finds compelling
circumstances which would render a plan of restitution unworkable. If the court finds a plan of restitution
unworkable, the court shall state on the record in detail the reasons therefor;
(2) pay the
probation or community correctional services fee pursuant to K.S.A. 21-4610a,
and amendments thereto; and
(3)
reimburse the state general fund for all or a part of the expenditures by the
state board of indigents' defense services to provide counsel and other defense
services to the defendant. In
determining the amount and method of payment of such sum, the court shall take
account of the financial resources of the defendant and the nature of the
burden that payment of such sum will impose.
A defendant who has been required to pay such sum and who is not
willfully in default in the payment thereof may at any time petition the court
which sentenced the defendant to waive payment of such sum or of any unpaid
portion thereof. If it appears to the
satisfaction of the court that payment of the amount due will impose manifest
hardship on the defendant or the defendant's immediate family, the court may
waive payment of all or part of the amount due or modify the method of
payment. The amount of attorney fees to
be included in the court order for reimbursement shall be the amount claimed by
appointed counsel on the payment voucher for indigents' defense services or the
amount prescribed by the board of indigents' defense services reimbursement
tables as provided in K.S.A. 22-4522, and amendments thereto, whichever is
less.
History: L. 1969, ch.
180, § 21-4610; L. 1972, ch. 317, § 100; L. 1976, ch. 169, § 1; L. 1978, ch.
120, § 9; L. 1981, ch. 147, § 1; L. 1983, ch. 112, § 1; L. 1984, ch. 126, § 2;
L. 1986, ch. 128, § 2; L. 1986, ch. 123, § 10; L. 1986, ch. 136; § 2; L. 1988,
ch. 115, § 9; L. 1991, ch. 88, § 3; L. 1992, ch. 239, § 244; L. 1993, ch. 259,
§ 14; L. 1995, ch. 257, § 2; L. 1997, ch. 181, § 19; L. 2000, ch. 182, § 5;
July 1.
21-4610a. Probation or community correctional services
fee.
(a) Each
person placed under the probation supervision of a court services officer or
other officer or employee of the judicial branch by a judge of the district
court under K.S.A. 21-4610 and amendments thereto and each person assigned to a
community correctional services program shall pay a probation or community
correctional services fee. If the person was convicted of a misdemeanor, the
amount of the probation services fee is $25 and if the person was convicted of
a felony, the amount of the probation or community correctional services fee is
$50, except that in any case the amount of the probation or community
correctional services fee specified by this section may be reduced or waived by
the judge if the person is unable to pay that amount.
(b) The
probation or community correctional services fee imposed by this section shall
be charged and collected by the district court. The clerk of the district court
shall remit revenues received under this section from probation or community
correctional services fees to the state treasurer in accordance with the
provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the
state treasurer shall deposit the entire amount in the state treasury to the
credit of the state general fund.
(c) This
section shall not apply to persons placed on probation or released on parole to
reside in Kansas under the uniform act for out-of-state parolee supervision.
History: L. 1984, ch.
126, § 1; L. 1986, ch. 123, § 11; L. 2001, ch. 5, § 81 (SB 15); July 1.
21-4611. Period of suspension of sentence, probation
or assignment to community corrections; parole of misdemeanant; duration of
probation in felony cases, modification or extension.
(a) The
period of suspension of sentence, probation or assignment to community
corrections fixed by the court shall not exceed five years in felony cases
involving crimes committed prior to July 1, 1993, or two years in misdemeanor
cases, subject to renewal and extension for additional fixed periods not
exceeding five years in such felony cases, nor two years in misdemeanor
cases. In no event shall the total
period of probation, suspension of sentence or assignment to community
corrections for a felony committed prior to July 1, 1993, exceed the greatest
maximum term provided by law for the crime, except that where the defendant is
convicted of nonsupport of a child, the period may be continued as long as the
responsibility for support continues.
Probation, suspension of sentence or assignment to community corrections
may be terminated by the court at any time and upon such termination or upon
termination by expiration of the term of probation, suspension of sentence or
assignment to community corrections, an order to this effect shall be entered
by the court. The provisions of K.S.A.
75-5291, and amendments thereto, shall be applicable to any assignment to a
community correctional services program pursuant to this section.
(b) The
district court having jurisdiction of the offender may parole any misdemeanant
sentenced to confinement in the county jail.
The period of such parole shall be fixed by the court and shall not
exceed two years and shall be terminated in the manner provided for termination
of suspended sentence and probation.
(c) For all
crimes committed on or after July 1, 1993, the duration of probation in felony
cases sentenced for the following severity levels on the sentencing guidelines
grid for nondrug crimes and the sentencing guidelines grid for drug crimes is
as follows:
(1) For
nondrug crimes the recommended duration of probations is:
(A)
Thirty-six months for crimes in crime severity levels 1 through 5; and
(B) 24
months for crimes in crime severity levels 6 and 7.
(2) For
drug crimes the recommended duration of probation is 36 months for crimes in
crime severity levels 1 and 2.
(3) In
felony cases sentenced at severity levels 9 and 10 on the sentencing guidelines
grid for nondrug crimes and severity level 4 on the sentencing guidelines grid
for drug crimes, if a nonprison sanction is imposed, the court shall order the
defendant to serve a period of probation, or assignment to a community
correctional services program as provided under K.S.A. 75-5291 et seq., and
amendments thereto, of up to 12 months in length.
(4) In
felony cases sentenced at severity level 8 on the sentencing guidelines grid
for nondrug crimes and severity level 3 on the sentencing guidelines grid for
drug crimes, if a nonprison sanction is imposed, the court shall order the
defendant to serve a period of probation, or assignment to a community
correctional services program, as provided under K.S.A. 75-5291 et seq., and
amendments thereto, of up to 18 months in length.
(5) If the
court finds and sets forth with particularity the reasons for finding that the
safety of the members of the public will be jeopardized or that the welfare of
the inmate will not be served by the length of the probation terms provided in
subsections (c)(3) and (c)(4), the court may impose a longer period of
probation. Such an increase shall not be
considered a departure and shall not be subject to appeal.
(6) Except
as provided in subsections (c)(7) and (c)(8), the total period in all cases
shall not exceed 60 months, or the maximum period of the prison sentence that
could be imposed whichever is longer.
Nonprison sentences may be terminated by the court at any time.
(7) If the
defendant is convicted of nonsupport of a child, the period may be continued as
long as the responsibility for support continues. If the defendant is ordered to pay full or
partial restitution, the period may be continued as long as the amount of
restitution ordered has not been paid.
(8) The
court may modify or extend the offender's period of supervision, pursuant to a
modification hearing and a judicial finding of necessity. Such extensions may be made for a maximum
period of five years or the maximum period of the prison sentence that could be
imposed, whichever is longer, inclusive of the original supervision term.
(d) The
provisions of subsection (c), as amended by this act, shall be applied
retroactively. The sentencing court
shall direct that a review of all persons serving a nonprison sanction for a
crime in severity levels 8, 9 or 10 of the sentencing guidelines grid for
nondrug crimes or a crime in severity levels 3 or 4 of the sentencing
guidelines grid for drug crimes be conducted.
On or before September 1, 2000, the duration of such person's probation
shall be modified in conformity with the provisions of subsection (c).
History: L. 1969, ch.
180, § 21-4611; L. 1977, ch. 118, § 1; L. 1978, ch. 120, § 10; L. 1986, ch.
123, § 12; L. 1992, ch. 239, § 245; L. 1993, ch. 291, § 185; L. 1996, ch. 258,
§ 4; L. 2000, ch. 182, § 6; July 1.
21-4612. Parole from sentence imposed by district
magistrate judge.
Any person
confined in jail under judgment of conviction before a district magistrate
judge may be paroled, such person's parole terminated and absolute discharge
granted by a district judge having jurisdiction of appeals from such district
magistrate judge in criminal cases, in the same manner and subject to the same
restrictions as if such person had been convicted in and placed on probation by
such district judge.
History: L. 1969, ch.
180, § 21-4612; L. 1976, ch. 156, § 4; L. 1977, ch. 118, § 2; L. 1983, ch. 284,
§ 3; L. 1986, ch. 115, § 53; Jan. 12, 1987.
21-4613. Transfer of supervision of person paroled, on
probation, assigned to community corrections or under suspended sentence.
(1) When a
defendant is placed on parole by the district court, on probation, assigned to
a community correctional services program by a district court or under
suspended sentence and such defendant is permitted to go from the judicial
district of that court, supervision over the defendant may be transferred from
that judicial district to another with the concurrence of the receiving chief
court services officer, or if in a community corrections services program, by
the concurrence of the director of the receiving program.
(2) The
district court from which the defendant is on parole, probation, community
correctional services program or suspended sentence may retain all power with
respect to this defendant.
History: L. 1969, ch.
180, § 21-4613; L. 1981, ch. 148, § 1; L. 1986, ch. 123, § 13; L. 1990, ch.
104, § 1; July 1.
21-4614. Deduction of time spent in confinement.
In any
criminal action in which the defendant is convicted upon a plea of guilty or no
contest or trial by court or jury or upon completion of an appeal, the judge,
if the judge sentences the defendant to confinement, shall direct that for the
purpose of computing defendant's sentence and parole eligibility and
conditional release dates thereunder, that such sentence is to be computed from
a date, to be specifically designated by the court in the sentencing order of
the journal entry of judgment or the judgment form, whichever is delivered with
the defendant to the correctional institution, such date shall be established to
reflect and shall be computed as an allowance for the time which the defendant
has spent incarcerated pending the disposition of the defendant's case. In
recording the commencing date of such sentence the date as specifically set
forth by the court shall be used as the date of sentence and all good time
allowances as are authorized by the Kansas parole board are to be allowed on
such sentence from such date as though the defendant were actually incarcerated
in any of the institutions of the state correctional system. Such jail time
credit is not to be considered to reduce the minimum or maximum terms of
confinement as are authorized by law for the offense of which the defendant has
been convicted.
History: L. 1969, ch.
180, § 21-4614; L. 1970, ch. 124, § 13; L. 1972, ch. 317, § 101; L. 1973, ch.
339, § 72; L. 1980, ch. 104, § 2; L. 2001, ch. 208, § 7 (HB 2176); July 1.
21-4614a. Deduction of time spent in residential
facility, conservation camp or community correctional residential services
program.
(a) In any
criminal action in which probation, assignment to a conservation camp or
assignment to community corrections is revoked and the defendant is sentenced
to confinement, for the purpose of computing the defendant's sentence and
parole eligibility and conditional release dates, the defendant's sentence is
to be computed from a date, hereafter to be specifically designated in the
sentencing order of the journal entry of judgment or the judgment form
delivered with the defendant to the correctional institution. Such date shall
be established to reflect and shall be computed as an allowance for the time
which the defendant has spent in a residential facility while on probation,
assignment to a conservation camp or assignment to community correctional residential
services program. The commencing date of such sentence shall be used as the
date of sentence and all good time allowances as are authorized by law are to
be allowed on such sentence from such date as though the defendant were
actually incarcerated in a correctional institution. Such credit is not to be
considered to reduce the minimum or maximum terms of confinement authorized by
law for the offense of which the defendant has been convicted.
History: L. 1988, ch.
115, § 4; L. 1989, ch. 92, § 25; July 1.
21-4615. Rights of imprisoned persons; restoration.
(1) A
person who has been convicted in any state or federal court of a felony shall,
by reason of such conviction, be ineligible to hold any public office under the
laws of the state of Kansas, or to register as a voter or to vote in any
election held under the laws of the state of Kansas or to serve as a juror in
any civil or criminal case.
(2) The
ineligibilities imposed by this section shall attach upon conviction and shall
continue until such person has completed the terms of the authorized sentence.
(3) The
ineligibilities imposed upon a convicted person by this section shall be in
addition to such other penalties as may be provided by law.
History: L. 1969, ch.
180, § 21-4615; L. 1972, ch. 317, § 102; L. 1986, ch. 123, § 14; L. 1996, ch.
187, § 21; L. 2002, ch. 19, § 3 (HB 2761); July 1.
21-4618. Mandatory imprisonment for crimes involving
firearms; crimes committed prior to July 1, 1993.
(a) Except
as provided in subsection (c), probation, assignment to a community
correctional services program or suspension of sentence shall not be granted to
any defendant who is convicted of the commission of the crime of rape, the
crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of
the Kansas Statutes Annotated in which the defendant used any firearm in the
commission thereof and such defendant shall be sentenced to not less than the
minimum sentence of imprisonment authorized by law for that crime. This section shall not apply to any crime
committed by a person under 18 years of age.
(b) When a
court has sentenced a defendant as provided above, the court shall state in the
sentencing order of the judgment form or journal entry, whichever is delivered
with the defendant to the correctional institution, that the defendant has been
sentenced pursuant to this K.S.A. 21-4618 and amendments thereto based on a
finding by the court that a firearm was so used.
(c) The
provisions of this section shall not apply to any crime committed by a person
where such application would result in a manifest injustice.
(d) The
provisions of this section shall not apply to any crime committed on or after
July 1, 1993.
History: L. 1976, ch.
168, § 1; L. 1979, ch. 94, § 1; L. 1979, ch. 90, § 6; L. 1980, ch. 104, § 3; L.
1986, ch. 123, § 15; L. 1989, ch. 92, § 26; L. 1992, ch. 239, § 246; July 1,
1993.
21-4619. Expungement of certain convictions, arrest
records and diversion agreements.
(a) (1)
Except as provided in subsections (b) and (c), any person convicted in this
state of a traffic infraction, cigarette or tobacco infraction, misdemeanor or
a class D or E felony, or for crimes committed on or after July 1, 1993,
nondrug crimes ranked in severity levels 6 through 10 or any felony ranked in
severity level 4 of the drug grid, may petition the convicting court for the
expungement of such conviction or related arrest records if three or more years
have elapsed since the person: (A) Satisfied the sentence imposed; or (B) was
discharged from probation, a community correctional services program, parole,
postrelease supervision, conditional release or a suspended sentence.
(2) Except
as provided in subsections (b) and (c), any person who has fulfilled the terms
of a diversion agreement may petition the district court for the expungement of
such diversion agreement and related arrest records if three or more years have
elapsed since the terms of the diversion agreement were fulfilled.
(b) Except
as provided in subsection (c), no person may petition for expungement until
five or more years have elapsed since the person satisfied the sentence
imposed, the terms of a diversion agreement or was discharged from probation, a
community correctional services program, parole, postrelease supervision,
conditional release or a suspended sentence, if such person was convicted of a
class A, B or C felony, or for crimes committed on or after July 1, 1993, if
convicted of an off-grid felony or any nondrug crime ranked in severity levels
1 through 5 or any felony ranked in severity levels 1 through 3 of the drug
grid, or:
(1)
Vehicular homicide, as defined by K.S.A. 21-3405 and amendments thereto or as
prohibited by any law of another state which is in substantial conformity with
that statute;
(2) driving
while the privilege to operate a motor vehicle on the public highways of this
state has been canceled, suspended or revoked, as prohibited by K.S.A. 8-262
and amendments thereto or as prohibited by any law of another state which is in
substantial conformity with that statute;
(3) perjury
resulting from a violation of K.S.A. 8-261a and amendments thereto or resulting
from the violation of a law of another state which is in substantial conformity
with that statute;
(4)
violating the provisions of the fifth clause of K.S.A. 8-142 and amendments
thereto, relating to fraudulent applications or violating the provisions of a
law of another state which is in substantial conformity with that statute;
(5) any
crime punishable as a felony wherein a motor vehicle was used in the perpetration
of such crime;
(6) failing
to stop at the scene of an accident and perform the duties required by K.S.A.
8-1602, 8-1603 or 8-1604, and amendments thereto, or required by a law of
another state which is in substantial conformity with those statutes;
(7)
violating the provisions of K.S.A. 40-3104 and amendments thereto, relating to
motor vehicle liability insurance coverage; or
(8) a
violation of K.S.A. 21-3405b, prior to its repeal.
(c) There
shall be no expungement of convictions for the following offenses or of
convictions for an attempt to commit any of the following offenses: (1) Rape as
defined in K.S.A. 21-3502 and amendments thereto; (2) indecent liberties with a
child as defined in K.S.A. 21-3503 and amendments thereto; (3) aggravated
indecent liberties with a child as defined in K.S.A. 21-3504 and amendments
thereto; (4) criminal sodomy as defined in subsection (a)(2) or (a)(3) of
K.S.A. 21-3505 and amendments thereto; (5) aggravated criminal sodomy as
defined in K.S.A. 21-3506 and amendments thereto; (6) indecent solicitation of
a child as defined in K.S.A. 21-3510 and amendments thereto; (7) aggravated
indecent solicitation of a child as defined in K.S.A. 21-3511 and amendments
thereto; (8) sexual exploitation of a child as defined in K.S.A. 21-3516 and
amendments thereto; (9) aggravated incest as defined in K.S.A. 21-3603 and
amendments thereto; (10) endangering a child as defined in K.S.A. 21-3608 and
amendments thereto; (11) aggravated endangering a child, as defined in K.S.A. 21-3608a,
and amendments thereto; (12) abuse of a child as defined in K.S.A. 21-3609 and
amendments thereto; (13) capital murder as defined in K.S.A. 21-3439 and
amendments thereto; (14) murder in the first degree as defined in K.S.A.
21-3401 and amendments thereto; (15) murder in the second degree as defined in
K.S.A. 21-3402 and amendments thereto; (16) voluntary manslaughter as defined
in K.S.A. 21-3403 and amendments thereto; (17) involuntary manslaughter as
defined in K.S.A. 21-3404 and amendments thereto; (18) involuntary manslaughter
while driving under the influence of alcohol or drugs as defined in K.S.A. 2000
Supp. 21-3442 and amendments thereto; (19) sexual battery as defined in K.S.A.
21-3517 and amendments thereto, when the victim was less than 18 years of age
at the time the crime was committed; (20) aggravated sexual battery as defined
in K.S.A. 21-3518 and amendments thereto; (21) a violation of K.S.A. 8-1567,
and amendments thereto, including any diversion for such violation; (22) a
violation of K.S.A. 8-2,144, and amendments thereto, including any diversion
for such violation; or (23) any conviction for any offense in effect at any
time prior to the effective date of this act, that is comparable to any offense
as provided in this subsection.
(d) When a
petition for expungement is filed, the court shall set a date for a hearing of
such petition and shall cause notice of such hearing to be given to the
prosecuting attorney and the arresting law enforcement agency. Except as otherwise provided by law, a
petition for expungement shall be accompanied by a payment of a docket fee in
the amount of $100. The petition shall
state:
(1) The
defendant's full name;
(2) the
full name of the defendant at the time of arrest, conviction or diversion, if different
than the defendant's current name;
(3) the
defendant's sex, race and date of birth;
(4) the
crime for which the defendant was arrested, convicted or diverted;
(5) the
date of the defendant's arrest, conviction or diversion; and
(6) the identity
of the convicting court, arresting law enforcement authority or diverting
authority. All petitions for expungement
shall be docketed in the original criminal action. Any person who may have relevant information
about the petitioner may testify at the hearing. The court may inquire into the background of
the petitioner and shall have access to any reports or records relating to the
petitioner that are on file with the secretary of corrections or the Kansas parole
board.
(e) At the
hearing on the petition, the court shall order the petitioner's arrest record,
conviction or diversion expunged if the court finds that:
(1) The
petitioner has not been convicted of a felony in the past two years and no
proceeding involving any such crime is presently pending or being instituted
against the petitioner;
(2) the
circumstances and behavior of the petitioner warrant the expungement; and
(3) the
expungement is consistent with the public welfare.
(f) When
the court has ordered an arrest record, conviction or diversion expunged, the
order of expungement shall state the information required to be contained in
the petition. The clerk of the court
shall send a certified copy of the order of expungement to the Kansas bureau of
investigation which shall notify the federal bureau of investigation, the
secretary of corrections and any other criminal justice agency which may have a
record of the arrest, conviction or diversion. After the order of expungement
is entered, the petitioner shall be treated as not having been arrested,
convicted or diverted of the crime, except that:
(1) Upon
conviction for any subsequent crime, the conviction that was expunged may be
considered as a prior conviction in determining the sentence to be imposed;
(2) the
petitioner shall disclose that the arrest, conviction or diversion occurred if
asked about previous arrests, convictions or diversions: (A) In any application
for licensure as a private detective, private detective agency, certification
as a firearms trainer pursuant to K.S.A. 2001 Supp. 75-7b21, and amendments
thereto, or employment as a detective with a private detective agency, as
defined by K.S.A. 75-7b01 and amendments thereto; as security personnel with a
private patrol operator, as defined by K.S.A. 75-7b01 and amendments thereto;
or with an institution, as defined in K.S.A. 76-12a01 and amendments thereto,
of the department of social and rehabilitation services;
(B) in any
application for admission, or for an order of reinstatement, to the practice of
law in this state;
(C) to aid
in determining the petitioner's qualifications for employment with the Kansas
lottery or for work in sensitive areas within the Kansas lottery as deemed
appropriate by the executive director of the Kansas lottery;
(D) to aid
in determining the petitioner’s qualifications for executive director of the
Kansas racing and gaming commission, for employment with the commission or for
work in sensitive areas in parimutuel racing as deemed appropriate by the
executive director of the commission, or to aid in determining qualifications
for licensure or renewal of licensure by the commission;
(E) to aid
in determining the petitioner’s qualifications for the following under the
Kansas expanded lottery act: (i) Lottery gaming facility manager or prospective
manager, racetrack gaming facility manager or prospective manager, licensee or
certificate holder; or (ii) an officer, director, employee, owner, agent or
contractor thereof;
(F) upon
application for a commercial driver's license under K.S.A. 8-2,125 through
8-2,142, and amendments thereto;
(G) to aid
in determining the petitioner's qualifications to be an employee of the state
gaming agency;
(H) to aid
in determining the petitioner's qualifications to be an employee of a tribal
gaming commission or to hold a license issued pursuant to a tribal-state gaming
compact; or
(I) in any
application for registration as a broker-dealer, agent, investment adviser or
investment adviser representative all as defined in section 2 of chapter 154 of
the 2004 Session Laws of Kansas, and amendments thereto; or
(J) in any
application for employment as a law enforcement officer as defined in K.S.A.
22-2202 or 74-5602, and amendments thereto;
(K) for
applications received on and after July 1, 2006, to aid in determining the
petitioner’s qualifications for a license to carry a concealed weapon pursuant
to the personal and family protection act, K.S.A. 75-7c01 et seq., and
amendments thereto;
(3) the
court, in the order of expungement, may specify other circumstances under which
the conviction is to be disclosed;
(4) the
conviction may be disclosed in a subsequent prosecution for an offense which
requires as an element of such offense a prior conviction of the type expunged;
and