Session Law

Identifying Information:L. 2002 ch. 019
Other Identifying Information:2002 House Bill 2761
Tax Type:Other
Brief Description:An Act concerning crimes, criminal procedure and punishment; relating to civil and voting rights of convicted felons; relating to conditions under which felons may vote; amending K.S.A. 2001 Supp. 21-4603, 21-4603d and 21-4615 and repealing the existing sections.
Keywords:


Body:

CHAPTER 19

HOUSE BILL No. 2761


An Act concerning crimes, criminal procedure and punishment; relating to civil and voting

rights of convicted felons; relating to conditions under which felons may vote; amending


K.S.A. 2001 Supp. 21-4603, 21-4603d and 21-4615 and repealing the existing sections.


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

Section 1. K.S.A. 2001 Supp. 21-4603 is hereby amended to read as

follows: 21-4603. (a) Whenever any person has been found guilty of a

crime and the court finds that an adequate presentence investigation can-

not be conducted by resources available within the judicial district, in-

cluding 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 pre-

sentence investigation under this section, the correctional facility or hos-

pital 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 sec-

retary 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 rec-

ommendations 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 correc-

tions 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 consecu-

tively, as a condition of suspension of sentence;

(5) assign the defendant to a community correctional services pro-

gram subject to the provisions of K.S.A. 75-5291, and amendments

thereto, and such conditions as the court may deem appropriate, includ-

ing 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 al-

cohol 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. 2001 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 im-

pose 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 in-

cluded in the court order for reimbursement shall be the amount claimed

by appointed counsel on the payment voucher for indigents' defense serv-

ices 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 cor-

rections or to jail, the court may specify in its order the amount of res-

titution 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 pro-

vided 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 com-

munity correctional services program has been revoked, the court may

modify such sentence, revocation of probation or assignment to a com-

munity correctional services program by directing that a less severe pen-

alty be imposed in lieu of that originally adjudged within statutory limits

and shall modify such sentence if recommended by the Topeka correc-

tional facility unless the court finds and sets forth with particularity the

reasons for finding that the safety of members of the public will be jeop-

ardized 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 expi-

ration 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 jeop-

ardized 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 rec-

ommendation 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 sen-

tence 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) Dispositions which do not involve commitment to the custody of

the secretary of corrections and commitments which are revoked within

120 days shall not entail the loss by the defendant of any civil rights.

Placement of offenders pursuant to subsection (b)(6) in a conservation

camp established by the secretary of corrections shall not entail the loss

by the defendant of any civil rights.

(h) 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.

(i) (h) An application for or acceptance of probation, suspended sen-

tence 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.

(j) (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.

(k) (j) The provisions of this section shall apply to crimes committed

before July 1, 1993.

Sec. 2. K.S.A. 2001 Supp. 21-4603d is hereby amended to read as

follows: 21-4603d. (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 correc-

tions if the current crime of conviction is a felony and the sentence pre-

sumes 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 con-

viction 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 sen-

tence 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 pro-

gram as provided in K.S.A. 75-5291, and amendments thereto, or through

a departure for substantial and compelling reasons subject to such con-

ditions 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 al-

cohol 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; or repay the amount of any public

funds utilized by a law enforcement agency to purchase controlled sub-

stances from the defendant during the investigation which leads to the

defendant's conviction. Such repayment of the amount of any such costs

and expenses incurred by a law enforcement agency 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 law enforcement agency;

(9) order the defendant to pay the administrative fee authorized by

K.S.A. 2001 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. 2001 Supp. 20-369, and amendments thereto;

(11) impose any appropriate combination of (1), (2), (3), (4), (5), (6),

(7), (8), (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 res-

titution unworkable. 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. 2000 Supp. 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 administra-

tive 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 defend-

ant to reimburse the county general fund for all or a part of the expend-

itures 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 im-

pose 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 or conditional release.

(f) When a new felony is committed while the offender is incarcer-

ated and serving a sentence for a felony or while the offender is on pro-

bation, 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 con-

stitute a departure. 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, 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 con-

viction otherwise presumes a nonprison sentence. In this event, imposi-

tion of a prison sentence for the new crime does not constitute a depar-

ture.

(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,

3-I, 4-E or 4-F of the sentencing guidelines grid for drug crimes, 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, 3-I, 4-E or

4-F of the sentencing guidelines grid for drug crimes, the court shall

consider placement of the defendant in the Labette correctional conser-

vation camp, conservation camps established by the secretary of correc-

tions pursuant to K.S.A. 75-52,127, and amendment thereto or a com-

munity 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 in-

termediate 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 sec-

retary 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 im-

pose 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 in-

cluded in the court order for reimbursement shall be the amount claimed

by appointed counsel on the payment voucher for indigents' defense serv-

ices 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) Dispositions which do not involve commitment to the custody of

the secretary of corrections shall not entail the loss by the defendant of

any civil rights. Placement of offenders in a conservation camp established

by the secretary of corrections pursuant to K.S.A. 75-52,127, and amend-

ments thereto, as a nonimprisonment disposition shall not entail the loss

by the defendant of any civil rights.

(k) 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.

(l) (k) An application for or acceptance of probation or assignment to

a community correctional services program shall not constitute an acqui-

escence 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.

(m) (l) The secretary of corrections is authorized to make direct

placement to the Labette correctional conservation camp or a conserva-

tion 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, or 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, 3-I, 4-E, or 4-F of the sen-

tencing guidelines grid for drug crimes; and (2) otherwise meets admis-

sion criteria of the camp. If the inmate successfully completes a conser-

vation 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 serv-

ices program. The court may also order that supervision continue there-

after for the length of time authorized by K.S.A. 21-4611 and

amendments thereto.

(n) (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.

Sec. 3. K.S.A. 2001 Supp. 21-4615 is hereby amended to read as

follows: 21-4615. (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 con-

viction and shall continue until such person is finally discharged from

parole or conditional release or is discharged from custody by reason of

the expiration of the term of imprisonment to which the person was sen-

tenced 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.

Sec. 4. K.S.A. 2001 Supp. 21-4603, 21-4603d and 21-4615 are hereby

repealed.

Sec. 5. This act shall take effect and be in force from and after its

publication in the statute book.

Approved April 1, 2002.


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Date Composed: 10/10/2002 Date Modified: 10/10/2002