Session Law

Identifying Information:L. 2001 ch. 186
Other Identifying Information:2001 House Bill 2296
Tax Type:Other
Brief Description:An Act concerning written instruments; relating to forgery; worthless checks; amending K.S.A. 21-3710 and K.S.A. 2000 Supp. 21-4704 and 60-2610 and repealing the existing sections.
Keywords:


Body:

CHAPTER 186

HOUSE BILL No. 2296


An Act concerning written instruments; relating to forgery; worthless checks; amending

K.S.A. 21-3710 and K.S.A. 2000 Supp. 21-4704 and 60-2610 and repealing the existing sections.




Be it enacted by the Legislature of the State of Kansas:

Section 1. On and after July 1, 2001, K.S.A. 21-3710 is hereby

amended to read as follows: 21-3710. (a) Forgery is knowingly and with

intent to defraud:

(1) Making, altering or endorsing any written instrument in such

manner that it purports to have been made, altered or endorsed by an-

other person, either real or fictitious, and if a real person without the

authority of such person; or altering any written instrument in such man-

ner that it purports to have been made at another time or with different

provisions without the authority of the maker thereof; or making, altering

or endorsing any written instrument in such manner that it purports to

have been made, altered or endorsed with the authority of one who did

not give such authority;

(2) issuing or delivering such written instrument knowing it to have

been thus made, altered or endorsed; or

(3) possessing, with intent to issue or deliver, any such written in-

strument knowing it to have been thus made, altered or endorsed.

(b) (1) Forgery is a severity level 8, nonperson felony.

(2) On a first conviction of a violation of this section, in addition to

any other sentence imposed, a person shall be fined the lesser of the

amount of the forged instrument or $500.

(3) On a second conviction of a violation of this section, a person shall

be required to serve at least 30 days' imprisonment as a condition of

probation, and fined the lesser of the amount of the forged instrument or

$1,000.

(4) On a third or subsequent conviction of a violation of this section,

a person shall be required to serve at least 45 days' imprisonment as a

condition of probation, and fined the lesser of the amount of the forged

instrument or $2,500.

(5) The person convicted shall not be eligible for release on probation,

suspension or reduction of sentence or parole until the person has served

the mandatory sentence as provided herein.

(c) In any prosecution under this section, it may be alleged in the

complaint or information that it is not known whether a purported person

is real or fictitious, and in such case there shall be a rebuttable presump-

tion that such purported person is fictitious.

Sec. 2. On and after July 1, 2001, K.S.A. 2000 Supp. 21-4704 is

hereby amended to read as follows: 21-4704. (a) For purposes of sen-

tencing, the following sentencing guidelines grid for nondrug crimes shall

be applied in felony cases for crimes committed on or after July 1, 1993:

(b) The provisions of this section shall be applicable to the sentencing

guidelines grid for nondrug crimes. Sentences expressed in such grid

represent months of imprisonment.

(c) The sentencing guidelines grid is a two-dimensional crime severity

and criminal history classification tool. The grid's vertical axis is the crime

severity scale which classifies current crimes of conviction. The grid's

horizontal axis is the criminal history scale which classifies criminal his-

tories.

(d) The sentencing guidelines grid for nondrug crimes as provided in

this section defines presumptive punishments for felony convictions, sub-

ject to judicial discretion to deviate for substantial and compelling reasons

and impose a different sentence in recognition of aggravating and miti-

gating factors as provided in this act. The appropriate punishment for a

felony conviction should depend on the severity of the crime of conviction

when compared to all other crimes and the offender's criminal history.

(e) (1) The sentencing court has discretion to sentence at any place

within the sentencing range. The sentencing judge shall select the center

of the range in the usual case and reserve the upper and lower limits for

aggravating and mitigating factors insufficient to warrant a departure.

(2) In presumptive imprisonment cases, the sentencing court shall

pronounce the complete sentence which shall include the prison sen-

tence, the maximum potential reduction to such sentence as a result of

good time and the period of postrelease supervision at the sentencing

hearing. Failure to pronounce the period of postrelease supervision shall

not negate the existence of such period of postrelease supervision.

(3) In presumptive nonprison cases, the sentencing court shall pro-

nounce the prison sentence as well as the duration of the nonprison sanc-

tion at the sentencing hearing.

(f) Each grid block states the presumptive sentencing range for an

offender whose crime of conviction and criminal history place such of-

fender in that grid block. If an offense is classified in a grid block below

the dispositional line, the presumptive disposition shall be nonimprison-

ment. If an offense is classified in a grid block above the dispositional

line, the presumptive disposition shall be imprisonment. If an offense is

classified in grid blocks 5-H, 5-I or 6-G, the court may impose an optional

nonprison sentence upon making the following findings on the record:

(1) An appropriate treatment program exists which is likely to be

more effective than the presumptive prison term in reducing the risk of

offender recidivism; and

(2) the recommended treatment program is available and the of-

fender can be admitted to such program within a reasonable period of

time; or

(3) the nonprison sanction will serve community safety interests by

promoting offender reformation.

Any decision made by the court regarding the imposition of an optional

nonprison sentence if the offense is classified in grid blocks 5-H, 5-I or

6-G shall not be considered a departure and shall not be subject to appeal.

(g) The sentence for the violation of K.S.A. 21-3411, aggravated as-

sault against a law enforcement officer or K.S.A. 21-3415, aggravated

battery against a law enforcement officer and amendments thereto which

places the defendant's sentence in grid block 6-H or 6-I shall be pre-

sumed imprisonment. The court may impose an optional nonprison sen-

tence upon making a finding on the record that the nonprison sanction

will serve community safety interests by promoting offender reformation.

Any decision made by the court regarding the imposition of the optional

nonprison sentence, if the offense is classified in grid block 6-H or 6-I,

shall not be considered departure and shall not be subject to appeal.

(h) When a firearm is used to commit any person felony, the of-

fender's sentence shall be presumed imprisonment. The court may im-

pose an optional nonprison sentence upon making a finding on the record

that the nonprison sanction will serve community safety interests by pro-

moting offender reformation. Any decision made by the court regarding

the imposition of the optional nonprison sentence shall not be considered

a departure and shall not be subject to appeal.

(i) The sentence for the violation of the felony provision of K.S.A. 8-

1567 and, subsection (c)(3) of K.S.A. 21-3412, and amendments thereto

shall be as provided by the specific mandatory sentencing requirements

of that section and shall not be subject to the provisions of this section or

K.S.A. 21-4707 and amendments thereto. If because of the offender's

criminal history classification the offender is subject to presumptive im-

prisonment or if the judge departs from a presumptive probation sentence

and the offender is subject to imprisonment, the provisions of this section

and K.S.A. 21-4707, and amendments thereto, shall apply and the of-

fender shall not be subject to the mandatory sentence as provided in K.S.A.

21-3710, and amendments thereto. Notwithstanding the provisions of any

other section, the term of imprisonment imposed for the violation of the

felony provision of K.S.A. 8-1567 and, subsection (c)(3) of K.S.A. 21-3412

and subsections (b)(2) and (b)(3) of K.S.A. 21-3710, and amendments

thereto shall not be served in a state facility in the custody of the secretary

of corrections.

(j) The sentence for any persistent sex offender whose current con-

victed crime carries a presumptive term of imprisonment shall be double

the maximum duration of the presumptive imprisonment term. The sen-

tence for any persistent sex offender whose current conviction carries a

presumptive nonprison term shall be presumed imprisonment and shall

be double the maximum duration of the presumptive imprisonment term.

Except as otherwise provided in this subsection, as used in this subsection,

``persistent sex offender'' means a person who: (1) Has been convicted in

this state of a sexually violent crime, as defined in K.S.A. 22-3717 and

amendments thereto; and (2) at the time of the conviction under subsec-

tion (1) has at least one conviction for a sexually violent crime, as defined

in K.S.A. 22-3717 and amendments thereto in this state or comparable

felony under the laws of another state, the federal government or a for-

eign government. The provisions of this subsection shall not apply to any

person whose current convicted crime is a severity level 1 or 2 felony.

(k) If it is shown at sentencing that the offender committed any felony

violation for the benefit of, at the direction of, or in association with any

criminal street gang, with the specific intent to promote, further or assist

in any criminal conduct by gang members, the offender's sentence shall

be presumed imprisonment. Any decision made by the court regarding

the imposition of the optional nonprison sentence shall not be considered

a departure and shall not be subject to appeal. As used in this subsection,

``criminal street gang'' means any organization, association or group of

three or more persons, whether formal or informal, having as one of its

primary activities the commission of one or more person felonies or felony

violations of the uniform controlled substances act, K.S.A. 65-4101 et seq.,

and amendments thereto, which has a common name or common iden-

tifying sign or symbol, whose members, individually or collectively engage

in or have engaged in the commission, attempted commission, conspiracy

to commit or solicitation of two or more person felonies or felony viola-

tions of the uniform controlled substances act, K.S.A. 65-4101 et seq., and

amendments thereto, or any substantially similar offense from another

jurisdiction.

(l) The sentence for a violation of subsection (a) of K.S.A. 21-3715

and amendments thereto when such person being sentenced has a prior

conviction for a violation of subsection (a) or (b) of K.S.A. 21-3715 or 21-

3716 and amendments thereto shall be presumed imprisonment.

Sec. 3. K.S.A. 2000 Supp. 60-2610 is hereby amended to read as

follows: 60-2610. (a) If a person gives a worthless check, as defined by

subsection (g), the person shall be liable to the holder of the check for

the amount of the check, the incurred court costs, the costs of restricted

mail and the incurred service charge, interest at the statutory rate and

the costs of collection including but not limited to reasonable attorney

fees, plus an amount equal to the greater of the following:

(1) Damages equal to three times the amount of the check but not

exceeding the amount of the check by more than $500; or

(2) $100.

The court may waive all or part of the attorney fees provided for by

this subsection, if the court finds that the damages and other amounts

awarded are sufficient to adequately compensate the holder of the check.

In the event the court waives all or part of the attorney fees, the court

shall make written findings of fact as to the specific reasons that the

amounts awarded are sufficient to adequately compensate the holder of

the check.

(b) The amounts specified by subsection (a) shall be recoverable in a

civil action brought by or on behalf of the holder of the check only if: (1)

Not less than 14 days before filing the civil action, the holder of the check

made written demand on the maker or drawer for payment of the amount

of the check and, the incurred service charge and the costs of restricted

mail accrued interest; and (2) the maker or drawer failed to tender to the

holder, prior to the filing of the action, an amount not less than the

amount demanded.

The written demand shall be sent by restricted mail, as defined by

subsection (g) first class mail, to the person to be given notice at such

person's address as it appears on such check, draft or order or to the last

known address of the maker or drawer and. The written demand shall

include notice that, if the money is not paid within 14 days, triple damages

in addition to an amount of money equal to the sum of the amount of

the check, the incurred court costs, service charge, costs of restricted mail

and court costs, accrued interest, the costs of collection, including but not

limited to, reasonable attorney fees unless the court otherwise orders,

may be incurred by the maker or drawer of the check.

Notice required by subsection (b)(1) shall state the exact amount and

date due, as well as an estimate of the amount that may be incurred if

the amount demanded is not paid by the specified date.

(c) Subsequent to the filing of an action under this section but prior

to the commencement of a dispositional hearing by the court, the de-

fendant may tender to the plaintiff as satisfaction of the claim, an amount

of money equal to the sum of the amount of the check, the incurred court

costs, service charge, costs of restricted mail and accrued interest, the

costs of collection, including, but not limited to, reasonable attorney fees

and court costs. The plaintiff shall include in the petition a statement

alleging that the defendant may tender such amount as satisfaction of the

claim as provided in this subsection. If the amount alleged in the petition

is tendered to the plaintiff in full satisfaction of the debt prior to the

commencement of the dispositional hearing by the court, the case shall

be dismissed by the plaintiff. For purposes of this subsection only, the

amount tendered as satisfaction of the claim shall not include triple dam-

ages or damages of $100 as provided in subsections (a)(1) and (2). For

purposes of this subsection, a dispositional hearing means a trial or other

hearing by the court in which the plaintiff is seeking the entry of judgment

against the defendant. The court may waive all or part of the attorney

fees provided for by this subsection, if the court finds that the damages

and other amounts awarded are sufficient to adequately compensate the

holder of the check. In the event the court waives all or part of the

attorney fees, the court shall make written findings of fact as to the spe-

cific reasons that the amounts awarded are sufficient to adequately com-

pensate the holder of the check.

(d) If the trier of fact determines that the failure of the defendant to

satisfy the dishonored check was due to economic hardship, the court

may waive all or part of the damages provided for by this section, but the

court shall render judgment against defendant for not less than the

amount of the dishonored check, the incurred court costs, service charge,

costs of restricted mail and the costs of collection, including but not lim-

ited to reasonable attorney fees, unless otherwise provided in this sub-

section. The court may waive all or part of the attorney fees provided for

by this subsection, if the court finds that the damages and other amounts

awarded are sufficient to adequately compensate the holder of the check.

In the event the court waives all or part of the attorney fees, the court

shall make written findings of fact as to the specific reasons that the

amounts awarded are sufficient to adequately compensate the holder of

the check.

(e) Any amount previously paid as restitution or reparations to the

holder of the check by or on behalf of its maker or drawer shall be credited

against the amount for which the maker or drawer is liable under sub-

section (a).

(f) Conviction of giving a worthless check or habitually giving a worth-

less check, as defined by K.S.A. 21-3707 and 21-3708, and amendments

thereto, shall not be a prerequisite or bar to recovery pursuant to this

section.

(g) The service charge on a check which is dishonored by the drawee

because the maker or drawer had no deposits in or credits with the drawee

or has not sufficient funds in, or credits with, the drawee for the payment

of each check, order or draft in full upon its presentation, shall not exceed

$30.

(g) (h) As used in this section:

(1) ,``giving a worthless check'' means the making, drawing, issuing

or delivering or causing or directing the making, drawing, issuing or de-

livering of any check, order or draft on any bank, credit union, savings

and loan association or depository for the payment of money or its equiv-

alent:

(A) (1) With intent to defraud or in payment for a preexisting debt;

and or

(B) (2) Which is dishonored by the drawee because the maker or

drawer had no deposits in or credits with the drawee or has not sufficient

funds in, or credits with, the drawee for the payment of such check, order

or draft in full upon its presentation.; and

(3) for which the maker or drawer has not tendered to the holder's

agent the amount of money demanded and within the time allowed by the

demand required in subsection (b).

(2) ``Restricted mail'' means mail which carries on its face the en-

dorsements ``restricted mail'' and ``deliver to addressee only.''

(3) ``Service charge'' means $10, or subject to limitations contained

in this subsection, if a larger amount is posted conspicuously, the larger

amount. In no event shall the amount of such insufficient check service

charge exceed $30.

Sec. 4. K.S.A. 2000 Supp. 60-2610 is hereby repealed.

Sec. 5. On and after July 1, 2001, K.S.A. 21-3710 and K.S.A. 2000

Supp. 21-4704 are hereby repealed.

Sec. 6. This act shall take effect and be in force from and after its

publication in the Kansas register.

Approved May 21, 2000.

Published in the Kansas Register May 24, 2000.


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Date Composed: 09/25/2001 Date Modified: 09/25/2001