[As Amended by House Committee of the Whole]
         

          Session of 1998
                   
SENATE BILL No. 435
         
By Senators Goodwin and Oleen
         
1-14
          10             AN ACT concerning crimes, criminal procedure and penalties; relating
11             to authorized dispositions; sentencing upon commission of new felony
12             while on release; [relating to a child's misconduct;] [relating to
13             bail bondspersons and their agents;] [relating to criminal dis-
14             charge of a firearm; relating to aggravated battery;] amending
15             K.S.A. [21-3427 and 21-4635 and K.S.A.] 1997 Supp. [21-3612
16             and] [21-4219 and] 21-4603d and repealing the existing section
17             [sections].
18            
19       Be it enacted by the Legislature of the State of Kansas:
20        [Section 1. K.S.A. 1997 Supp. 21-3612 is hereby amended to
21       read as follows: 21-3612. (a) Contributing to a child's misconduct
22       or deprivation is:
23           [(1) Causing or encouraging a child under 18 years of age to
24       become or remain a child in need of care as defined by the Kansas
25       code for care of children;
26           [(2) causing or encouraging a child under 18 years of age to
27       commit a traffic infraction or an act which, if committed by an
28       adult, would be a misdemeanor or to violate the provisions of
29       K.S.A. 41-727 or subsection (j) of K.S.A. 74-8810 and amendments
30       thereto;
31           [(3) failure to reveal, upon inquiry by a uniformed or properly
32       identified law enforcement officer engaged in the performance of
33       such officer's duty or by such runaway's parent or other custodian, any
34       information one has regarding a runaway, with intent to aid the
35       runaway in avoiding detection or apprehension;
36           [(4) sheltering or concealing a runaway with intent to aid the
37       runaway in avoiding detection or apprehension by law enforce-
38       ment officers;
39           [(5) causing or encouraging a child under 18 years of age to
40       commit an act which, if committed by an adult, would be a felony;
41       or
42           [(6) causing or encouraging a child to violate the terms or con-
43       ditions of the child's probation or conditional release pursuant to

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  1       subsection (a)(1) of K.S.A. 38-1663, and amendments thereto.
  2           [Contributing to a child's misconduct or deprivation as de-
  3       scribed in subsection (a)(1), (2), (3) or (6) is a class A nonperson
  4       misdemeanor. Contributing to a child's misconduct or deprivation
  5       as described in subsection (a)(4) is a severity level 8, person felony.
  6       Contributing to a child's misconduct or deprivation as described
  7       in subsection (a)(5) is a severity level 7, person felony.
  8           [(b) A person may be found guilty of contributing to a child's
  9       misconduct or deprivation even though no prosecution of the child
10       whose misconduct or deprivation the defendant caused or encour-
11       aged has been commenced pursuant to the Kansas code for care
12       of children, Kansas juvenile justice code or Kansas criminal code.
13           [(c) As used in this section, ``runaway'' means a child under 18
14       years of age who is willfully and voluntarily absent from:
15           [(1) The child's home without the consent of the child's parent
16       or other custodian; or
17           [(2) a court ordered or designated placement, or a placement
18       pursuant to court order, if the absence is without the consent of
19       the person with whom the child is placed or, if the child is placed
20       in a facility, without the consent of the person in charge of such
21       facility or such person's designee.
22           [(d) This section shall be part of and supplemental to the Kan-
23       sas criminal code.]
24        [New Section 2. (a) No surety or bonding company shall em-
25       ploy or contract with any person for the purpose of arresting, re-
26       capturing, returning to custody or surrendering any defendant or
27       fugitive, except as provided in this section and subject to the re-
28       strictions of this section.
29           [(b) No surety or bonding company, or any of its employees or
30       agents, shall be immune or exempt from any law or cause of action
31       by virtue of their surety relationship to any defendant or fugitive
32       except that such surety or bonding company, and its employees
33       and agents, may use reasonable force to retake a defendant or
34       fugitive for whom a warrant has been issued for the purposes of
35       surrender on such warrant.
36           [(c) For the purpose of retaking a defendant or fugitive who is
37       not charged with a felony violation, no employee or agent of a
38       surety or bonding company shall forcibly enter or remain within
39       any occupied structure without valid consent of the defendant or
40       the owner or occupant of such structure, or use deadly force or
41       the threat of deadly force.
42           [(d) Any surety or bonding company charging a fee for services
43       shall maintain general liability insurance insuring for such dam-

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  1       ages of $350,000 per occurrence, and otherwise shall not enter
  2       into any agreement with any person to insure, compensate or hold
  3       harmless such surety or bonding company for such liability.
  4           [(e) No attempt shall be made to retake any defendant or fu-
  5       gitive until notice shall be given to the police department of the
  6       city where the defendant or fugitive is located or, if not within a
  7       city, the sheriff of the county.
  8           [(f) As used in this section, the term ``agent'' shall include a
  9       bounty hunter.]
10           Section 1 [Sec. 3]. K.S.A. 1997 Supp. 21-4603d is hereby amended
11       to read as follows: 21-4603d. (a) Whenever any person has been found
12       guilty of a crime, the court may adjudge any of the following:
13           (1) Commit the defendant to the custody of the secretary of correc-
14       tions if the current crime of conviction is a felony and the sentence pre-
15       sumes imprisonment, or the sentence imposed is a dispositional departure
16       to imprisonment; or, if confinement is for a misdemeanor, to jail for the
17       term provided by law;
18           (2) impose the fine applicable to the offense;
19           (3) release the defendant on probation if the current crime of con-
20       viction and criminal history fall within a presumptive nonprison category
21       or through a departure for substantial and compelling reasons subject to
22       such conditions as the court may deem appropriate. In felony cases except
23       for violations of K.S.A. 8-1567 and amendments thereto, the court may
24       include confinement in a county jail not to exceed 30 days, which need
25       not be served consecutively, as a condition of probation or community
26       corrections placement;
27           (4) assign the defendant to a community correctional services pro-
28       gram in presumptive nonprison cases or through a departure for substan-
29       tial and compelling reasons subject to such conditions as the court may
30       deem appropriate, including orders requiring full or partial restitution;
31           (5) assign the defendant to a conservation camp for a period not to
32       exceed 180 days as a condition of probation followed by a 180-day period
33       of follow-up through adult intensive supervision by a community correc-
34       tional services program, if the offender successfully completes the con-
35       servation camp program. If the defendant was classified in grid blocks
36       3-G, 3-H or 3-I of the sentencing guidelines grid for drug crimes, the
37       court may impose a nonprison sanction on the condition that the offender
38       complete the program at the Labette correctional conservation camp.
39       Such a placement decision shall not be considered a departure and shall
40       not be subject to appeal;
41           (6) assign the defendant to a house arrest program pursuant to K.S.A.
42       21-4603b and amendments thereto;
43           (7) order the defendant to attend and satisfactorily complete an al-

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  1       cohol or drug education or training program as provided by subsection
  2       (3) of K.S.A. 21-4502 and amendments thereto;
  3           (8) order the defendant to repay the amount of any reward paid by
  4       any crime stoppers chapter, individual, corporation or public entity which
  5       materially aided in the apprehension or conviction of the defendant; or
  6       repay the amount of any public funds utilized by a law enforcement
  7       agency to purchase controlled substances from the defendant during the
  8       investigation which leads to the defendant's conviction. Such repayment
  9       of the amount of any public funds utilized by a law enforcement agency
10       shall be deposited and credited to the same fund from which the public
11       funds were credited to prior to use by the law enforcement agency;
12           (9) order the defendant to pay the administrative fee authorized by
13       K.S.A. 1997 Supp. 22-4529 and amendments thereto, unless waived by
14       the court;
15           (10) impose any appropriate combination of (1), (2), (3), (4), (5), (6),
16       (7), (8) and (9); or
17           (11) suspend imposition of sentence in misdemeanor cases.
18           In addition to or in lieu of any of the above, the court shall order the
19       defendant to pay restitution, which shall include, but not be limited to,
20       damage or loss caused by the defendant's crime, unless the court finds
21       compelling circumstances which would render a plan of restitution un-
22       workable. If the court finds a plan of restitution unworkable, the court
23       shall state on the record in detail the reasons therefor.
24           If the court orders restitution, the restitution shall be a judgment
25       against the defendant which may be collected by the court by garnishment
26       or other execution as on judgments in civil cases. If, after 60 days from
27       the date restitution is ordered by the court, a defendant is found to be in
28       noncompliance with the plan established by the court for payment of
29       restitution, and the victim to whom restitution is ordered paid has not
30       initiated proceedings in accordance with K.S.A. 60-4301 et seq. and
31       amendments thereto, the court shall assign an agent procured by the
32       attorney general pursuant to K.S.A. 75-719 and amendments thereto to
33       collect the restitution on behalf of the victim. The administrative judge
34       of each judicial district may assign such cases to an appropriate division
35       of the court for the conduct of civil collection proceedings.
36           In addition to or in lieu of any of the above, the court shall order the
37       defendant to submit to and complete an alcohol and drug evaluation, and
38       pay a fee therefor, when required by subsection (4) of K.S.A. 21-4502
39       and amendments thereto.
40           In addition to any of the above, the court shall order the defendant to
41       reimburse the county general fund for all or a part of the expenditures
42       by the county to provide counsel and other defense services to the de-
43       fendant. Any such reimbursement to the county shall be paid only after

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  1       any order for restitution has been paid in full. In determining the amount
  2       and method of payment of such sum, the court shall take account of the
  3       financial resources of the defendant and the nature of the burden that
  4       payment of such sum will impose. A defendant who has been required
  5       to pay such sum and who is not willfully in default in the payment thereof
  6       may at any time petition the court which sentenced the defendant to
  7       waive payment of such sum or any unpaid portion thereof. If it appears
  8       to the satisfaction of the court that payment of the amount due will im-
  9       pose manifest hardship on the defendant or the defendant's immediate
10       family, the court may waive payment of all or part of the amount due or
11       modify the method of payment.
12           In imposing a fine the court may authorize the payment thereof in
13       installments. In releasing a defendant on probation, the court shall direct
14       that the defendant be under the supervision of a court services officer. If
15       the court commits the defendant to the custody of the secretary of cor-
16       rections or to jail, the court may specify in its order the amount of res-
17       titution to be paid and the person to whom it shall be paid if restitution
18       is later ordered as a condition of parole or conditional release.
19           When a new felony is committed while the offender is incarcerated
20       and serving a sentence for a felony, while the offender is on release for a
21       felony pursuant to the provisions of article 28 of chapter 22 of the Kansas
22       Statutes Annotated or while the offender is on probation, assignment to
23       a community correctional services program, parole, conditional release,
24       or postrelease supervision for a felony, a new sentence shall be imposed
25       pursuant to the consecutive sentencing requirements of K.S.A. 21-4608,
26       and amendments thereto, and the court may sentence the offender to
27       imprisonment for the new conviction, even when the new crime of con-
28       viction otherwise presumes a nonprison sentence. In this event, imposi-
29       tion of a prison sentence for the new crime does not constitute a depar-
30       ture.
31           Prior to imposing a dispositional departure for a defendant whose of-
32       fense is classified in the presumptive nonprison grid block of either sen-
33       tencing guideline grid, prior to sentencing a defendant to incarceration
34       whose offense is classified in grid blocks 5-H, 5-I or 6-G of the sentencing
35       guidelines grid for nondrug crimes, or prior to revocation of a nonprison
36       sanction of a defendant whose offense is classified in the presumptive
37       nonprison grid block of either sentencing guideline grid or grid blocks
38       5-H, 5-I or 6-G of the sentencing guidelines grid for nondrug crimes, the
39       court shall consider placement of the defendant in the Labette correc-
40       tional conservation camp. Pursuant to this paragraph the defendant shall
41       not be sentenced to imprisonment if space is available in the conservation
42       camp and the defendant meets all of the conservation camp's placement
43       criteria unless the court states on the record the reasons for not placing

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  1       the defendant in the conservation camp.
  2           The court in committing a defendant to the custody of the secretary of
  3       corrections shall fix a term of confinement within the limits provided by
  4       law. In those cases where the law does not fix a term of confinement for
  5       the crime for which the defendant was convicted, the court shall fix the
  6       term of such confinement.
  7           In addition to any of the above, the court shall order the defendant to
  8       reimburse the state general fund for all or a part of the expenditures by
  9       the state board of indigents' defense services to provide counsel and other
10       defense services to the defendant. In determining the amount and
11       method of payment of such sum, the court shall take account of the
12       financial resources of the defendant and the nature of the burden that
13       payment of such sum will impose. A defendant who has been required
14       to pay such sum and who is not willfully in default in the payment thereof
15       may at any time petition the court which sentenced the defendant to
16       waive payment of such sum or any unpaid portion thereof. If it appears
17       to the satisfaction of the court that payment of the amount due will im-
18       pose manifest hardship on the defendant or the defendant's immediate
19       family, the court may waive payment of all or part of the amount due or
20       modify the method of payment. The amount of attorney fees to be in-
21       cluded in the court order for reimbursement shall be the amount claimed
22       by appointed counsel on the payment voucher for indigents' defense serv-
23       ices or the amount prescribed by the board of indigents' defense services
24       reimbursement tables as provided in K.S.A. 22-4522, and amendments
25       thereto, whichever is less.
26           (b) Dispositions which do not involve commitment to the custody of
27       the secretary of corrections shall not entail the loss by the defendant of
28       any civil rights.
29           (c) This section shall not deprive the court of any authority conferred
30       by any other Kansas statute to decree a forfeiture of property, suspend
31       or cancel a license, remove a person from office, or impose any other civil
32       penalty as a result of conviction of crime.
33           (d) An application for or acceptance of probation or assignment to a
34       community correctional services program shall not constitute an acqui-
35       escence in the judgment for purpose of appeal, and any convicted person
36       may appeal from such conviction, as provided by law, without regard to
37       whether such person has applied for probation, suspended sentence or
38       assignment to a community correctional services program.
39           (e) The secretary of corrections is authorized to make direct place-
40       ment to the Labette correctional conservation camp of an inmate sen-
41       tenced to the secretary's custody if the inmate: (1) Has been sentenced
42       to the secretary for a probation revocation or as a departure from the
43       presumptive nonimprisonment grid block of either sentencing grid; and

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  1       (2) otherwise meets admission criteria of the camp. If the inmate suc-
  2       cessfully completes the 180-day conservation camp program, the secre-
  3       tary of corrections shall report such completion to the sentencing court
  4       and the county or district attorney. The inmate shall then be assigned by
  5       the court to 180 days of follow-up supervision conducted by the appro-
  6       priate community corrections services program. The court may also order
  7       that supervision continue thereafter for the length of time authorized by
  8       K.S.A. 21-4611 and amendments thereto.
  9           (f) When it is provided by law that a person shall be sentenced pur-
10       suant to K.S.A. 1993 Supp. 21-4628, prior to its repeal, the provisions of
11       this section shall not apply.
12        [Sec. 4. K.S.A. 21-3427 is hereby amended to read as follows:
13       21-3427. (a) Aggravated robbery is a robbery, as defined in K.S.A
14       21-3426 and amendments thereto, committed by a person:
15           [(1) Who is armed with a dangerous weapon or;
16           [(2) who inflicts bodily harm upon any person in the course of
17       such robbery; or
18           [(3) who is armed with a firearm, inflicts great bodily harm upon any
19       person in the course of such robbery and the property taken was a vehicle.
20           [(b) Aggravated robbery as defined in subsection (a)(1) or (a)(2) is
21       a severity level 3, person felony. Aggravated robbery as defined in
22       subsection (a)(3) is a severity level 1, person felony.
23           [Sec. 5. K.S.A. 1997 Supp. 21-4219 is hereby amended to read
24       as follows: 21-4219. (a) Criminal discharge of a firearm at an un-
25       occupied dwelling is the malicious, intentional and unauthorized
26       discharge of any firearm at an unoccupied dwelling.
27           [Criminal discharge of a firearm at an unoccupied dwelling is a
28       severity level 8, person felony.
29           [(b) (1) Except as provided in K.S.A. 21-3411, and amendments
30       thereto, criminal discharge of a firearm at an occupied building or
31       occupied vehicle is the malicious, intentional and unauthorized
32       discharge of a firearm at a dwelling, building, structure, motor
33       vehicle, aircraft, watercraft, train, locomotive, railroad car, ca-
34       boose, rail-mounted work equipment or rolling stock or other
35       means of conveyance of persons or property in which there is a
36       human being.
37           [(2) Criminal discharge of a firearm at an occupied building or
38       occupied vehicle is a severity level 7, person felony.
39           [(3) Criminal discharge of a firearm at an occupied building or
40       occupied vehicle which results in bodily harm to a person during
41       the commission thereof is a severity level 5 3, person felony.
42           [(4) Criminal discharge of a firearm at an occupied building or
43       occupied vehicle which results in great bodily harm to a person

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  1       during the commission thereof is a severity level 3 1, person felony.
  2           [(c) This section shall be part of and supplemental to the Kan-
  3       sas criminal code.
  4           [Sec. 6. K.S.A. 21-4635 is hereby amended to read as follows:
  5       21-4635. (a) Except as provided in K.S.A. 21-4634, (1) if a defend-
  6       ant is convicted of the crime of capital murder and a sentence of
  7       death is not imposed, or ; (2) if a defendant is convicted of murder
  8       in the first degree based upon the finding of premeditated mur-
  9       der,; (3) if a defendant is convicted of murder in the first degree or murder
10       in the second degree based on the commission of, attempt to commit or
11       flight from: (A) The criminal discharge of a firearm at an occupied build-
12       ing or vehicle, pursuant to subsection (b) of K.S.A. 21-4219 and amend-
13       ments thereto; or (B) aggravated robbery, pursuant to subsection (a)(3)
14       of K.S.A. 21-3427, and amendments thereto, which results in death to a
15       person, the court shall determine whether the defendant shall be
16       required to serve a mandatory term of imprisonment of 40 years
17       or sentenced as otherwise provided by law.
18           [(b) In order to make such determination, the court may be
19       presented evidence concerning any matter that the court deems
20       relevant to the question of sentence and shall include matters re-
21       lating to any of the aggravating circumstances enumerated in
22       K.S.A. 21-4636 and any mitigating circumstances. Any such evi-
23       dence which the court deems to have probative value may be re-
24       ceived regardless of its admissibility under the rules of evidence,
25       provided that the defendant is accorded a fair opportunity to rebut
26       any hearsay statements. Only such evidence of aggravating circum-
27       stances as the state has made known to the defendant prior to the
28       sentencing shall be admissible and no evidence secured in viola-
29       tion of the constitution of the United States or of the state of Kansas
30       shall be admissible. No testimony by the defendant at the time of
31       sentencing shall be admissible against the defendant at any sub-
32       sequent criminal proceeding. At the conclusion of the evidentiary
33       presentation, the court shall allow the parties a reasonable period
34       of time in which to present oral argument.
35           [(c) If the court finds that one or more of the aggravating cir-
36       cumstances enumerated in K.S.A. 21-4636 and amendments
37       thereto exist and, further, that the existence of such aggravating
38       circumstances is not outweighed by any mitigating circumstances
39       which are found to exist, the defendant shall be sentenced pursu-
40       ant to K.S.A. 21-4638 and amendments thereto; otherwise, the de-
41       fendant shall be sentenced as provided by law. The court shall
42       designate, in writing, the statutory aggravating circumstances
43       which it found. The court may make the findings required by this

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  1       subsection for the purpose of determining whether to sentence a
  2       defendant pursuant to K.S.A. 21-4638 notwithstanding contrary
  3       findings made by the jury or court pursuant to subsection (e) of
  4       K.S.A. 21-4624 and amendments thereto for the purpose of deter-
  5       mining whether to sentence such defendant to death.]
  6           Sec. 2 [7]. K.S.A. [21-3427 and 21-4635 and K.S.A.] 1997 Supp.
  7       [21-3612 and] [21-4219 and] 21-4603d is [are] hereby repealed.
  8           Sec. 3 [8]. This act shall take effect and be in force from and after
  9       its publication in the statute book.
10