As Amended by House Committee
[As Further Amended by Senate Committee of the
Whole]
As Amended by Senate Committee
Session of 1999
SENATE BILL No. 131
By Committee on Judiciary
1-26
12 AN ACT
concerning crimes, criminal procedure and punishment; pre-
13 scribing certain
penalties; amending K.S.A. 21-3435, 21-3503, 21-
14 3504, 21-3505,
21-3510, 21-3520, 21-3705,
and, 21-4605,
21-4635 and
15
21-4638, 21-4635 and 21-4638 and K.S.A.
1998 Supp. 8-262, 8-287,
16 21-3204,
21-3402, 21-3810, 21-4603d, 21-4704, 21-4706, 22-3717, 22-
17 4902 and 75-5217 and
repealing the existing sections.
18
19 Be it enacted by the Legislature of the
State of Kansas:
20 New Section
1. (a) Any offender who was required to be reg-
21 istered pursuant to the Kansas offender
registration act K.S.A. 22-
22 4901 et seq., and
amendments thereto, prior to July 1, 1999, and
23 who would not be required to be
registered pursuant to the pro-
24 visions of this act, shall be entitled
to be relieved of the require-
25 ment to be registered. Such offender may
apply to the sentencing
26 court for an order relieving the
offender of the duty of registration.
27 The court shall hold a hearing on the
application at which the
28 applicant shall present evidence
verifying that such applicant no
29 longer satisfies the definition of
offender pursuant to K.S.A. 22-
30 4902, and amendments thereto. If the
court finds that the person
31 no longer satisfies the definition of
offender pursuant to K.S.A. 22-
32 4902, and amendments thereto, the court
shall grant an order re-
33 lieving the offender's duty to register
if the offender no longer
34 fulfills the definition of offender
pursuant to K.S.A. 22-4902, and
35 amendments thereto. Such court granting
such an order shall for-
36 ward a copy of such order to the sheriff
of the county in which
37 such person has registered and to the
Kansas bureau of investi-
38 gation. Upon receipt of such copy of the
order, such sheriff and
39 the Kansas bureau of investigation shall
remove such person's
40 name from the registry.
41 (b) This
section shall be part of and supplemental to the Kansas
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1 offender registration act.
2 Section
1 2. K.S.A. 1998 Supp. 8-262 is
hereby amended to read as
3 follows: 8-262. (a) (1) Any person
who drives a motor vehicle on any
4 highway of this state at a time when
such person's privilege so to do is
5 canceled, suspended or revoked shall
be guilty of a: (A) Class B nonperson
6 misdemeanor on the first conviction;
and (B) class A nonperson misde-
7 meanor on the second
conviction; and (C) severity level 9,
nonperson
8 felony on a third or
subsequent conviction.
9 (2) No
person shall be convicted under this section if such person
10 was entitled at the time of arrest under
K.S.A. 8-257, and amendments
11 thereto, to the return of such person's
driver's license or was, at the time
12 of arrest, eligible under K.S.A. 8-256, and
amendments thereto, to apply
13 for a new license to operate a motor
vehicle.
14 (3) Except as
otherwise provided by subsection (a)(4), every person
15 convicted under this section shall be
sentenced to at least five days' im-
16 prisonment and fined at least $100 and upon
a second or subsequent
17 conviction shall not be eligible for parole
until completion of five days'
18 imprisonment.
19 (4) If a person
(A) is convicted of a violation of this section, commit-
20 ted while the person's privilege to drive
was suspended or revoked for a
21 violation of K.S.A. 8-1567, and amendments
thereto, or any ordinance of
22 any city or a law of another state, which
ordinance or law prohibits the
23 acts prohibited by that statute, and (B) is
or has been also convicted of a
24 violation of K.S.A. 8-1567, and amendments
thereto, or of a municipal
25 ordinance or law of another state, which
ordinance or law prohibits the
26 acts prohibited by that statute, committed
while the person's privilege to
27 drive was so suspended or revoked, the
person shall not be eligible for
28 suspension of sentence, probation or parole
until the person has served
29 at least 90 days' imprisonment, and any
fine imposed on such person shall
30 be in addition to such a term of
imprisonment.
31 (b) The division,
upon receiving a record of the conviction of any
32 person under this section, or any ordinance
of any city or a law of another
33 state which is in substantial conformity
with this section, upon a charge
34 of driving a vehicle while the license of
such person is revoked or sus-
35 pended, shall extend the period of such
suspension or revocation for an
36 additional period of 90 days.
37 (c) In addition
to extension of the period of suspension or revocation
38 under subsection (b), if the conviction is
for a violation committed after
39 June 30, 1994, and before July 1, 1996, and
committed while the person's
40 driving privileges are suspended pursuant
to K.S.A. 8-1014 and amend-
41 ments thereto, the division, upon
completion of the extended period of
42 suspension, shall restrict the person's
driving privileges for an additional
43 120 days to driving only a motor vehicle
equipped with an ignition inter-
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1 lock device, as defined by K.S.A.
8-1013 and amendments thereto, ap-
2 proved by the division and obtained,
installed and maintained at the per-
3 son's expense.
4 On or before
February 1, 1996, the division shall report to the legis-
5 lature regarding the use of the
provisions of this subsection and making
6 recommendations concerning
continuation or modification of such
7 provisions.
8 (d) For the
purposes of determining whether a conviction is a first,
9 second, third or
subsequent conviction in sentencing under this section,
10 "conviction" includes a conviction of a
violation of any ordinance of any
11 city or a law of another state which is in
substantial conformity with this
12 section.
13 Sec.
2 3. K.S.A. 1998 Supp. 8-287 is
hereby amended to read as
14 follows: 8-287. Operation of a motor
vehicle in this state while one's driv-
15 ing privileges are revoked pursuant to
K.S.A. 8-286 and amendments
16 thereto is a severity level 9,
nonperson felony class A nonperson
17 misdemeanor.
18 Sec.
3 4. K.S.A. 1998 Supp. 21-3402
is hereby amended to read as
19 follows: 21-3402. Murder in the second
degree is the killing of a human
20 being committed:
21
(a) Intentionally; or
22
(b) unintentionally but recklessly under circumstances
manifesting
23 extreme indifference to the value of human
life.
24 Murder in the second
degree as described in subsection (a) is an
off-
25 grid a severity level
1, person felony. Murder in the second degree as
26 described in subsection (b) is a severity
level 2, person felony.
27 Sec. 5. K.S.A. 1998
Supp. 21-3204 is hereby amended to read
28 as follows: 21-3204. A person may be
guilty of an offense without
29 having criminal intent if the crime
is: (1) A misdemeanor, cigarette
30 or tobacco infraction or traffic
infraction and the statute defining
31 the offense clearly indicates a
legislative purpose to impose abso-
32 lute liability for the conduct
described; or (2) a violation of K.S.A. 8-
33 1567 or 8-1567a, and amendments
thereto.
34 Sec.
6. K.S.A. 21-3435 is hereby amended to read as
follows:
35 21-3435. (a) It is unlawful for an
individual who knows oneself to
36 be infected with a life threatening
communicable disease
37 knowingly:
38 (1) To engage
in sexual intercourse or sodomy with another
39 individual with the intent to expose
that individual to that life
40 threatening communicable
disease;
41 (2) to sell or
donate one's own blood, blood products, semen,
42 tissue, organs or other body fluids with
the intent to expose the
43 recipient to a life threatening
communicable disease;
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1 (3) to
share with another individual a hypodermic needle, sy-
2 ringe, or both, for the
introduction of drugs or any other substance
3 into, or for the withdrawal of
blood or body fluids from, the other
4 individual's body with the intent
to expose another person to a life
5 threatening communicable
disease.
6 (b) As
used in this section, the term "sexual intercourse" shall
7 not include penetration by any
object other than the male sex or-
8 gan; the term "sodomy" shall not
include the penetration of the
9 anal opening by any object other
than the male sex organ.
10 (c) Violation
of this section is a class A person
misdemeanor se-
11 verity level 7, person
felony.
12 Sec.
4 7. K.S.A. 21-3503 is hereby
amended to read as follows: 21-
13 3503. (a) Indecent liberties with a child
is engaging in any of the following
14 acts with a child who is 14 or more years
of age but less than 16 years of
15 age and the offender is more than
three four years older
than the child:
16 (1) Any lewd
fondling or touching of the person of either the child
17 or the offender, done or submitted to with
the intent to arouse or to
18 satisfy the sexual desires of either the
child or the offender, or both; or
19 (2) soliciting
the child to engage in any lewd fondling or touching of
20 the person of another with the intent to
arouse or satisfy the sexual desires
21 of the child, the offender or another.
22 (b) It shall be a
defense to a prosecution of indecent liberties with a
23 child as described in subsection (a)(1)
that the child was married to the
24 accused at the time of the offense.
25 (c) Indecent
liberties with a child is a severity level 5, person felony.
26 Sec.
5 8. K.S.A. 21-3504 is hereby
amended to read as follows: 21-
27 3504. (a) Aggravated indecent liberties
with a child is:
28 (1) Sexual
intercourse with a child who is 14 or more years of age but
29 less than 16 years of age and the
offender is more than three
four years
30 older than the child;
31 (2) engaging in
any of the following acts with a child who is 14 or
32 more years of age but less than 16 years of
age and the offender is more
33 than three years older than the
child and who the child does
not consent
34 thereto:
35 (A) Any lewd
fondling or touching of the person of either the child
36 or the offender, done or submitted to with
the intent to arouse or satisfy
37 the sexual desires of either the child or
the offender, or both; or
38 (B) causing the
child to engage in any lewd fondling or touching of
39 the person of another with the intent to
arouse or satisfy the sexual desires
40 of the child, the offender or another;
or
41 (3) engaging in
any of the following acts with a child who is under 14
42 years of age:
43 (A) Any lewd
fondling or touching of the person of either the child
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1 or the offender, done or submitted to
with the intent to arouse or to
2 satisfy the sexual desires of either
the child or the offender, or both; or
3
(B) soliciting the child to engage in any lewd fondling or
touching of
4 the person of another with the intent
to arouse or satisfy the sexual desires
5 of the child, the offender or
another.
6 (b) It
shall be a defense to a prosecution of aggravated indecent lib-
7 erties with a child as provided in
subsection (a)(1), (a)(2)(A) and (a)(3)(A)
8 that the child was married to the
accused at the time of the offense.
9
(c) Aggravated indecent liberties with a child as described in
subsec-
10 tions (a)(1) and (a)(3) is a severity level
3, person felony. Aggravated
11 indecent liberties with a child as
described in subsection (a)(2) is a severity
12 level 4, person felony.
13 Sec.
6 9. K.S.A. 21-3505 is hereby
amended to read as follows: 21-
14 3505. (a) Criminal sodomy is:
15 (1) Sodomy
between persons who are 16 or more years of age and
16 members of the same sex or between a person
and an animal;
17 (2) sodomy with a
child who is 14 or more years of age but less than
18 16 years of age and the offender is more
than three four years
older than
19 the child; or
20 (3) causing a
child 14 or more years of age but less than 16 years of
21 age and the offender is more than
three four years older
than the child
22 to engage in sodomy with any person or
animal.
23 (b) It shall be a
defense to a prosecution of criminal sodomy as pro-
24 vided in subsection (a)(2) that the child
was married to the accused at the
25 time of the offense.
26 (c) Criminal
sodomy as provided in subsection (a)(1) is a class B non-
27 person misdemeanor. Criminal sodomy as
provided in subsections (a)(2)
28 and (a)(3) is a severity level 3, person
felony.
29 Sec.
7 10. K.S.A. 21-3510 is hereby
amended to read as follows: 21-
30 3510. (a) Indecent solicitation of a child
is:
31 (1) Enticing or
soliciting a child 14 or more years of age but less than
32 16 years of age and the offender is more
than three four years
older than
33 the child to commit or to submit to
an unlawful sexual act; or
34 (2) inviting,
persuading or attempting to persuade a child 14 or more
35 years of age but less than 16 years of age
and the offender is more than
36 three
four years older than the child to enter any vehicle,
building, room
37 or secluded place with intent to commit an
unlawful sexual act upon or
38 with the child.
39 (b) Indecent
solicitation of a child is a severity level 7, person felony.
40 Sec.
8 11. K.S.A. 21-3520 is hereby
amended to read as follows: 21-
41 3520. (a) Unlawful sexual relations is
engaging in consensual sexual in-
42 tercourse, lewd fondling or
touching, or sodomy with a person who is not
43 married to the offender if:
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1 (1) The
offender is an employee of the department of corrections or
2 the employee of a contractor who is
under contract to provide services in
3 a correctional institution and the
person with whom the offender is en-
4 gaging in consensual sexual
intercourse, lewd fondling or touching, or
5 sodomy is an inmate;
or
6 (2) the
offender is a parole officer and the person with whom the
7 offender is engaging in consensual
sexual intercourse, lewd fondling or
8 touching, or sodomy is an
inmate who has been released on parole or
9 conditional release or postrelease
supervision under the direct supervision
10 and control of the
offender.; or
11 (3) the person
with whom the offender is engaging in voluntary: (i)
12 Sexual intercourse; (ii) lewd fondling;
(iii) touching; or (iv) sodomy is
13 between the ages of 14 or more years of
age but less than 16 years of age
14 and the offender is not more than
three four years older
than the victim.
15 (b) For purposes
of this act:
16 (1) "Correctional
institution" means the same as prescribed by K.S.A.
17 75-5202, and amendments thereto;
18 (2) "inmate"
means the same as prescribed by K.S.A. 75-5202, and
19 amendments thereto;
20 (3) "parole
officer" means the same as prescribed by K.S.A. 75-5202,
21 and amendments thereto; and
22 (4) "postrelease
supervision" means the same as prescribed in the
23 Kansas sentencing guidelines act in K.S.A.
21-4703.
24 (c) Unlawful
sexual relations as provided in subsection (a)(3) is a
se-
25 verity level 8 person felony. Unlawful
sexual relations as provided in sub-
26 section (a)(1) and (a)(2) is a
severity level 10 person felony.
27 Sec.
9 12. K.S.A. 21-3705 is hereby
amended to read as follows: 21-
28 3705. (a) Criminal deprivation of property
is obtaining or exerting unau-
29 thorized control over property, with intent
to deprive the owner of the
30 temporary use thereof, without the owner's
consent but not with the
31 intent of depriving the owner permanently
of the possession, use or ben-
32 efit of such owner's property.
33 (b) Criminal
deprivation of property that is a motor vehicle, as de-
34 fined in K.S.A. 8-1437, and amendments
thereto, is a class A nonperson
35 felony misdemeanor.
Upon a first conviction of this subsection, a person
36 shall be sentenced to not less than 30 days
nor more than one year's
37 imprisonment and fined not less than $100.
Upon a second or subsequent
38 conviction of this subsection, a person
shall be sentenced to not less than
39 60 days nor more than one year's
imprisonment and fined not less than
40 $200. The person convicted shall not be
eligible for release on probation,
41 suspension or reduction of sentence or
parole until the person has served
42 the minimum mandatory sentence as provided
herein. The mandatory
43 provisions of this subsection shall not
apply to any person where such
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1 application would result in a
manifest injustice.
2
(c) Criminal deprivation of property other than a motor
vehicle, as
3 defined in K.S.A. 8-1437, and
amendments thereto, is a class A nonperson
4 misdemeanor. Upon a second or
subsequent conviction of this subsection,
5 a person shall be sentenced to not
less than 30 days imprisonment and
6 fined not less than $100, except that
the provisions of this subsection
7 relating to a second or subsequent
conviction shall not apply to any person
8 where such application would result
in a manifest injustice.
9 Sec.
10 13. K.S.A. 1998 Supp.
21-3810 is hereby amended to read
10 as follows: 21-3810. (a) Aggravated
escape from custody is:
11 (a)
(1) Escaping: (A) While held in lawful custody
upon a charge or
12 conviction of a felony or
upon; (B) while held on a charge or
adjudication
13 as a juvenile offender as defined in K.S.A.
38-1602, and amendments
14 thereto, where the act, if committed by an
adult, would constitute a fel-
15 ony,; (C) prior to
or upon a finding of probable cause for evaluation as a
16 sexually violent predator as provided in
K.S.A. 59-29a05 and amendments
17 thereto, upon; (D)
while held on commitment to a treatment facility as a
18 sexually violent predator as provided
pursuant to K.S.A. 59-29a01 et seq.
19 and amendments thereto or
upon; (E) while held on a commitment to
20 the state security hospital as provided in
K.S.A. 22-3428 and amendments
21 thereto based on a finding that the person
committed an act constituting
22 a felony; or (F) by a person 18
years of age or over who is being held in
23 lawful custody on an adjudication of a
felony; or
24 (b)
(2) Escaping: (A) While held in custody on a
charge or conviction
25 of any crime or; (B)
while held on a charge or adjudication as a juvenile
26 offender as defined in K.S.A. 38-1602, and
amendments thereto, where
27 the act, if committed by an adult, would
constitute a felony,; (C) prior to
28 or upon a finding of probable cause for
evaluation as a sexually violent
29 predator as provided in K.S.A. 59-29a05 and
amendments thereto, upon;
30 (D) while held on commitment to a
treatment facility as a sexually violent
31 predator as provided in K.S.A. 59-29a01
et seq. and amendments thereto
32 or upon; (E) while held
on a commitment to the state security hospital as
33 provided in K.S.A. 22-3428 and amendments
thereto based on a finding
34 that the person committed an act
constituting any crime; or (F) by a
35 person 18 years of age or over who is being
held in lawful custody or a
36 charge or adjudication of a misdemeanor or
felony; and when, in all cases,
37 such escape is effected or facilitated by
the use of violence or the threat
38 of violence against any person.
39 (c)
(3) Escaping from a state correctional institution
as defined in
40 K.S.A. 75-5202 and amendments thereto
while held in custody of the
41 secretary of corrections.
42 (b)
(1) Aggravated escape from custody as described in
subsection
43 (a)(1) is a severity level 8,
nonperson felony.
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1
(2) Aggravated escape from custody as described in subsection
(b)
2 (a)(2) is a severity level 6,
person felony.
3
(3) Aggravated escape from custody as described in
subsection (a)(3)
4 is a severity level 5, person
felony.
5 Sec.
11 14. K.S.A. 1998 Supp.
21-4603d is hereby amended to read
6 as follows: 21-4603d. (a) Whenever
any person has been found guilty of
7 a crime, the court may adjudge any of
the following:
8 (1) Commit
the defendant to the custody of the secretary of correc-
9 tions if the current crime of
conviction is a felony and the sentence pre-
10 sumes imprisonment, or the sentence imposed
is a dispositional departure
11 to imprisonment; or, if confinement is for
a misdemeanor, to jail for the
12 term provided by law;
13 (2) impose the
fine applicable to the offense;
14 (3) release the
defendant on probation if the current crime of con-
15 viction and criminal history fall within a
presumptive nonprison category
16 or through a departure for substantial and
compelling reasons subject to
17 such conditions as the court may deem
appropriate. In felony cases except
18 for violations of K.S.A. 8-1567 and
amendments thereto, the court may
19 include confinement in a county jail not to
exceed 30 days, which need
20 not be served consecutively, as a condition
of probation or community
21 corrections placement;
22 (4) assign the
defendant to a community correctional services pro-
23 gram in presumptive nonprison cases or
through a departure for substan-
24 tial and compelling reasons subject to such
conditions as the court may
25 deem appropriate, including orders
requiring full or partial restitution;
26 (5) assign the
defendant to a conservation camp for a period not to
27 exceed six months as a condition of
probation followed by a six-month
28 period of follow-up through adult intensive
supervision by a community
29 correctional services program, if the
offender successfully completes the
30 conservation camp program. If the defendant
was classified in grid blocks
31 3-G, 3-H or 3-I of the sentencing
guidelines grid for drug crimes, the
32 court may impose a nonprison sanction on
the condition that the offender
33 complete the program at the Labette
correctional conservation camp or
34 a conservation camp established by the
secretary of corrections pursuant
35 to K.S.A. 75-52,127, and amendments
thereto. Such a placement decision
36 shall not be considered a departure and
shall not be subject to appeal;
37 (6) assign the
defendant to a house arrest program pursuant to K.S.A.
38 21-4603b and amendments thereto;
39 (7) order the
defendant to attend and satisfactorily complete an al-
40 cohol or drug education or training program
as provided by subsection
41 (3) of K.S.A. 21-4502 and amendments
thereto;
42 (8) order the
defendant to repay the amount of any reward paid by
43 any crime stoppers chapter, individual,
corporation or public entity which
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1 materially aided in the apprehension
or conviction of the defendant; repay
2 the amount of any costs and expenses
incurred by any law enforcement
3 agency in the apprehension of the
defendant, if one of the current crimes
4 of conviction of the defendant
includes escape, as defined in K.S.A. 21-
5 3809 and amendments thereto or
aggravated escape, as defined in K.S.A.
6 21-3810 and amendments thereto; or
repay the amount of any public
7 funds utilized by a law enforcement
agency to purchase controlled sub-
8 stances from the defendant during the
investigation which leads to the
9 defendant's conviction. Such
repayment of the amount of any such costs
10 and expenses incurred by a law enforcement
agency or any public funds
11 utilized by a law enforcement agency shall
be deposited and credited to
12 the same fund from which the public funds
were credited to prior to use
13 by the law enforcement agency;
14 (9) order the
defendant to pay the administrative fee authorized by
15 K.S.A. 1998 Supp. 22-4529 and amendments
thereto, unless waived by
16 the court;
17 (10) impose any
appropriate combination of (1), (2), (3), (4), (5), (6),
18 (7), (8) and (9); or
19 (11) suspend
imposition of sentence in misdemeanor cases.
20 In addition to or in
lieu of any of the above, the court shall order the
21 defendant to pay restitution, which shall
include, but not be limited to,
22 damage or loss caused by the defendant's
crime, unless the court finds
23 compelling circumstances which would render
a plan of restitution un-
24 workable. If the court finds a plan of
restitution unworkable, the court
25 shall state on the record in detail the
reasons therefor.
26 If the court orders
restitution, the restitution shall be a judgment
27 against the defendant which may be
collected by the court by garnishment
28 or other execution as on judgments in civil
cases. If, after 60 days from
29 the date restitution is ordered by the
court, a defendant is found to be in
30 noncompliance with the plan established by
the court for payment of
31 restitution, and the victim to whom
restitution is ordered paid has not
32 initiated proceedings in accordance with
K.S.A. 60-4301 et seq. and
33 amendments thereto, the court shall assign
an agent procured by the
34 attorney general pursuant to K.S.A. 75-719
and amendments thereto to
35 collect the restitution on behalf of the
victim. The administrative judge
36 of each judicial district may assign such
cases to an appropriate division
37 of the court for the conduct of civil
collection proceedings.
38 In addition to or in
lieu of any of the above, the court shall order the
39 defendant to submit to and complete an
alcohol and drug evaluation, and
40 pay a fee therefor, when required by
subsection (4) of K.S.A. 21-4502
41 and amendments thereto.
42 In addition to any of
the above, the court shall order the defendant to
43 reimburse the county general fund for all
or a part of the expenditures
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1 by the county to provide counsel and
other defense services to the de-
2 fendant. Any such reimbursement to
the county shall be paid only after
3 any order for restitution has been
paid in full. In determining the amount
4 and method of payment of such sum,
the court shall take account of the
5 financial resources of the defendant
and the nature of the burden that
6 payment of such sum will impose. A
defendant who has been required
7 to pay such sum and who is not
willfully in default in the payment thereof
8 may at any time petition the court
which sentenced the defendant to
9 waive payment of such sum or any
unpaid portion thereof. If it appears
10 to the satisfaction of the court that
payment of the amount due will im-
11 pose manifest hardship on the defendant or
the defendant's immediate
12 family, the court may waive payment of all
or part of the amount due or
13 modify the method of payment.
14 In imposing a fine the
court may authorize the payment thereof in
15 installments. In releasing a defendant on
probation, the court shall direct
16 that the defendant be under the supervision
of a court services officer. If
17 the court commits the defendant to the
custody of the secretary of cor-
18 rections or to jail, the court may specify
in its order the amount of res-
19 titution to be paid and the person to whom
it shall be paid if restitution
20 is later ordered as a condition of parole
or conditional release.
21 When a new felony is
committed while the offender is incarcerated
22 and serving a sentence for a felony or
while the offender is on probation,
23 assignment to a community correctional
services program, parole, con-
24 ditional release, or postrelease
supervision for a felony, a new sentence
25 shall be imposed pursuant to the
consecutive sentencing requirements of
26 K.S.A. 21-4608, and amendments thereto, and
the court may sentence
27 the offender to imprisonment for the new
conviction, even when the new
28 crime of conviction otherwise presumes a
nonprison sentence. When a
29 new felony is committed while
the offender is on release for a felony
30 pursuant to the provisions of
article 28 of chapter 22 of the Kansas Stat-
31 utes Annotated, a new sentence
shall be imposed pursuant to the consec-
32 utive sentencing provisions of
K.S.A. 21-4608 and amendments thereto.
33 In this
either [this] event,
imposition of a prison sentence for the new
34 crime does not constitute a departure.
[When a new felony is commit-
35 ted while the offender is on release
for a felony pursuant to the
36 provisions of article 28 of chapter
22 of the Kansas Statutes Anno-
37 tated, a new sentence may be imposed
pursuant to the consecutive
38 sentencing requirements of K.S.A.
21-4608 and amendments
39 thereto, and the court may sentence
the offender to imprisonment
40 for the new conviction, even when the
new crime of conviction oth-
41 erwise presumes a nonprison sentence.
In this event, imposition of
42 a prison sentence for the new crime
does not constitute a departure.]
43 Prior to imposing a
dispositional departure for a defendant whose of-
SB 131--Am. by H
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1 fense is classified in the
presumptive nonprison grid block of either sen-
2 tencing guideline grid, prior to
sentencing a defendant to incarceration
3 whose offense is classified in grid
blocks 5-H, 5-I or 6-G of the sentencing
4 guidelines grid for nondrug crimes or
in grid blocks 3-E, 3-F, 3-G, 3-H,
5 3-I, 4-E or 4-F of the sentencing
guidelines grid for drug crimes, or prior
6 to revocation of a nonprison sanction
of a defendant whose offense is
7 classified in the presumptive
nonprison grid block of either sentencing
8 guideline grid or grid blocks 5-H,
5-I or 6-G of the sentencing guidelines
9 grid for nondrug crimes or in grid
blocks 3-E, 3-F, 3-G, 3-H, 3-I, 4-E or
10 4-F of the sentencing guidelines grid for
drug crimes, the court shall
11 consider placement of the defendant in the
Labette correctional conser-
12 vation camp, conservation camps established
by the secretary of correc-
13 tions pursuant to K.S.A. 75-52,127, and
amendment thereto or a com-
14 munity intermediate sanction center.
Pursuant to this paragraph the
15 defendant shall not be sentenced to
imprisonment if space is available in
16 a conservation camp or a community
intermediate sanction center and
17 the defendant meets all of the conservation
camp's or a community in-
18 termediate sanction center's placement
criteria unless the court states on
19 the record the reasons for not placing the
defendant in a conservation
20 camp or a community intermediate sanction
center.
21 The court in
committing a defendant to the custody of the secretary of
22 corrections shall fix a term of confinement
within the limits provided by
23 law. In those cases where the law does not
fix a term of confinement for
24 the crime for which the defendant was
convicted, the court shall fix the
25 term of such confinement.
26 In addition to any of
the above, the court shall order the defendant to
27 reimburse the state general fund for all or
a part of the expenditures by
28 the state board of indigents' defense
services to provide counsel and other
29 defense services to the defendant. In
determining the amount and
30 method of payment of such sum, the court
shall take account of the
31 financial resources of the defendant and
the nature of the burden that
32 payment of such sum will impose. A
defendant who has been required
33 to pay such sum and who is not willfully in
default in the payment thereof
34 may at any time petition the court which
sentenced the defendant to
35 waive payment of such sum or any unpaid
portion thereof. If it appears
36 to the satisfaction of the court that
payment of the amount due will im-
37 pose manifest hardship on the defendant or
the defendant's immediate
38 family, the court may waive payment of all
or part of the amount due or
39 modify the method of payment. The amount of
attorney fees to be in-
40 cluded in the court order for reimbursement
shall be the amount claimed
41 by appointed counsel on the payment voucher
for indigents' defense serv-
42 ices or the amount prescribed by the board
of indigents' defense services
43 reimbursement tables as provided in K.S.A.
22-4522, and amendments
SB 131--Am. by H
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1 thereto, whichever is less.
2
(b) Dispositions which do not involve commitment to the
custody of
3 the secretary of corrections shall
not entail the loss by the defendant of
4 any civil rights. Placement of
offenders in a conservation camp established
5 by the secretary of corrections
pursuant to K.S.A. 75-52,127, and amend-
6 ments thereto, as a nonimprisonment
disposition shall not entail the loss
7 by the defendant of any civil
rights.
8 (c) This
section shall not deprive the court of any authority conferred
9 by any other Kansas statute to decree
a forfeiture of property, suspend
10 or cancel a license, remove a person from
office, or impose any other civil
11 penalty as a result of conviction of
crime.
12 (d) An
application for or acceptance of probation or assignment to a
13 community correctional services program
shall not constitute an acqui-
14 escence in the judgment for purpose of
appeal, and any convicted person
15 may appeal from such conviction, as
provided by law, without regard to
16 whether such person has applied for
probation, suspended sentence or
17 assignment to a community correctional
services program.
18 (e) The secretary
of corrections is authorized to make direct place-
19 ment to the Labette correctional
conservation camp or a conservation
20 camp established by the secretary pursuant
to K.S.A. 75-52,127, and
21 amendments thereto, of an inmate sentenced
to the secretary's custody
22 if the inmate: (1) Has been sentenced to
the secretary for a probation
23 revocation or as a departure from the
presumptive nonimprisonment grid
24 block of either sentencing grid; and (2)
otherwise meets admission criteria
25 of the camp. If the inmate successfully
completes the six-month conser-
26 vation camp program, the secretary of
corrections shall report such com-
27 pletion to the sentencing court and the
county or district attorney. The
28 inmate shall then be assigned by the court
to six months of follow-up
29 supervision conducted by the appropriate
community corrections services
30 program. The court may also order that
supervision continue thereafter
31 for the length of time authorized by K.S.A.
21-4611 and amendments
32 thereto.
33 (f) When it is
provided by law that a person shall be sentenced pur-
34 suant to K.S.A. 1993 Supp. 21-4628, prior
to its repeal, the provisions of
35 this section shall not apply.
36 Sec.
12 15. K.S.A. 21-4605 is hereby
amended to read as follows: 21-
37 4605. (a) (1) Upon request of the
attorney for the state or the counsel for
38 the defendant, The judge
shall make available to the attorney [for the
39 state] or counsel [for
the defendant] the presentence report, any report
40 that may be received from the Topeka
correctional facility or the state
41 security hospital and other diagnostic
reports and shall allow the attorney
42 or counsel a reasonable time to review the
report before sentencing the
43 defendant. Except as otherwise
provided in this section, all these reports
SB 131--Am. by H
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1 shall be part of the record
but shall be sealed and opened only on order
2 of the court.
3 (2) The
court shall permit the attorney for the state or the counsel
4 for the defendant, upon
request, to copy and retain any of the reports
5 under subsection (a)(1). Any reports
copied and retained shall be kept in
6 the records of the attorney for the
state or the counsel for the defendant
7 and shall not be disclosed to
any unauthorized person without permission
8 of the court. All
costs of copying such reports shall be paid by the office
9 of the attorney for the state or the
counsel for the defendant making the
10 request.
11 (b) If a
defendant is committed to the custody of the secretary
of
12 corrections, all reports under
subsection (a)(1) shall be sent to the sec-
13 retary of corrections and, in
accordance with K.S.A. 75-5220, and amend-
14 ments thereto, to the warden of the
state correctional institution to which
15 the defendant is
conveyed.
16
(c) Nothing in this section shall be construed as prohibiting
the at-
17 torney for the defendant from
disclosing the report of the presentence
18 investigation, or other diagnostic
reports, to the defendant after receiving
19 court approval to do
so.
20
(d) Notwithstanding subsections (a), (b) and (c), the
presentence re-
21 port, any report that may be
received from the Topeka correctional facility
22 or the state security hospital and
other diagnostic reports, shall be made
23 available upon request to the
Kansas sentencing commission for the pur-
24 pose of data collection and
evaluation. The presentence report shall be-
25 come part of the court record and shall
be accessible to the public, except
26 that the official version, the
defendant's version, the victim's statement,
27 any psychological reports and any drug
and alcohol reports shall be ac-
28 cessible only to the
parties [attorney for the state and
the counsel for
29 the defendant], the
sentencing judge, the department of corrections and
30 if requested, the Kansas sentencing
commission. If the offender is com-
31 mitted to the custody of the secretary
of corrections, the report shall be
32 sent to the secretary and, in accordance
with K.S.A. 75-5220 and amend-
33 ments thereto, to the warden of the
state correctional institution to which
34 the defendant is conveyed.
35 (e)
(c) For felony crimes committed on or after July 1,
1993, the
36 provisions of this section are not
applicable to the presentence investi-
37 gation report.
38 Sec.
13. K.S.A. 21-4635 is hereby amended to read as follows:
21-
39 4635. (a) Except as provided in
K.S.A. 21-4634, if a defendant is convicted
40 of the crime of capital murder and
a sentence of death is not imposed,
41 or if a defendant is convicted of
murder in the first degree based upon
42 the finding of premeditated murder,
the court shall determine whether
43 the defendant shall be required to
serve a mandatory term of imprison-
SB 131--Am. by H
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1 ment of 40 years
or for crimes committed on and after July 1, 1999,
a
2 mandatory term of
imprisonment of 50 years or sentenced as
otherwise
3 provided by law.
4
(b) In order to make such determination, the court may be
presented
5 evidence concerning any
matter that the court deems relevant to the
6 question of sentence and
shall include matters relating to any of the ag-
7 gravating circumstances
enumerated in K.S.A. 21-4636 and any mitigating
8 circumstances. Any such
evidence which the court deems to have pro-
9 bative value may be received
regardless of its admissibility under the rules
10 of evidence, provided that the
defendant is accorded a fair opportunity
11 to rebut any hearsay statements.
Only such evidence of aggravating cir-
12 cumstances as the state has made
known to the defendant prior to the
13 sentencing shall be admissible and
no evidence secured in violation of
14 the constitution of the United
States or of the state of Kansas shall be
15 admissible. No testimony by the
defendant at the time of sentencing shall
16 be admissible against the defendant
at any subsequent criminal proceed-
17 ing. At the conclusion of the
evidentiary presentation, the court shall allow
18 the parties a reasonable period of
time in which to present oral argument.
19 (c) If
the court finds that one or more of the aggravating
circum-
20 stances enumerated in K.S.A.
21-4636 and amendments thereto exist and,
21 further, that the existence of such
aggravating circumstances is not out-
22 weighed by any mitigating
circumstances which are found to exist, the
23 defendant shall be sentenced
pursuant to K.S.A. 21-4638 and amend-
24 ments thereto; otherwise, the
defendant shall be sentenced as provided
25 by law. The court shall designate,
in writing, the statutory aggravating
26 circumstances which it found. The
court may make the findings required
27 by this subsection for the purpose
of determining whether to sentence a
28 defendant pursuant to K.S.A.
21-4638 notwithstanding contrary findings
29 made by the jury or court pursuant
to subsection (e) of K.S.A. 21-4624
30 and amendments thereto for the
purpose of determining whether to sen-
31 tence such defendant to
death.
32 Sec.
14. K.S.A. 21-4638 is hereby amended to read as follows:
21-
33 4638. When it is provided by law
that a person shall be sentenced pur-
34 suant to this section, such person
shall be sentenced to imprisonment for
35 life and shall not be eligible for
probation or suspension, modification or
36 reduction of sentence. In addition,
a person sentenced pursuant to this
37 section shall not be eligible for
parole prior to serving 40 years' impris-
38 onment, and such 40 years'
imprisonment shall not be reduced by the
39 application of good time
credits. For crimes committed on and after
July
40 1, 1999, a person sentenced
pursuant to this section shall not be eligible
41 for parole prior to serving 50
years' imprisonment, and such 50 years'
42 imprisonment shall not be
reduced by the application of good time credits.
43 Upon sentencing a defendant
pursuant to this section, the court shall
SB 131--Am. by H
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1 commit the defendant to the
custody of the secretary of corrections and
2 the court shall state in the
sentencing order of the judgment form or
3 journal entry, whichever is
delivered with the defendant to the correc-
4 tional institution, that the
defendant has been sentenced pursuant to
5 K.S.A. 21-4638.
6
Sec. 16. K.S.A. 21-4635 is hereby amended to read as
follows:
7 21-4635. (a) Except as provided in
K.S.A. 21-4634, and amendments
8 thereto, if a defendant is
convicted of the crime of capital murder
9 and a sentence of death is not
imposed, or if a defendant is con-
10 victed of murder in the first degree
based upon the finding of
11 premeditated murder, the court shall
determine whether the de-
12 fendant shall be required to serve a
mandatory term of imprison-
13 ment of 40 years or for crimes
committed on and after July 1, 1999, a
14 mandatory term of imprisonment of 50
years or sentenced as otherwise
15 provided by law.
16 (b) In order
to make such determination, the court may be
17 presented evidence concerning any matter
that the court deems
18 relevant to the question of sentence and
shall include matters re-
19 lating to any of the aggravating
circumstances enumerated in
20 K.S.A. 21-4636, and amendments
thereto, and any mitigating circum-
21 stances. Any such evidence which the
court deems to have pro-
22 bative value may be received regardless
of its admissibility under
23 the rules of evidence, provided that the
defendant is accorded a
24 fair opportunity to rebut any hearsay
statements. Only such evi-
25 dence of aggravating circumstances as
the state has made known
26 to the defendant prior to the sentencing
shall be admissible and
27 no evidence secured in violation of the
constitution of the United
28 States or of the state of Kansas shall
be admissible. No testimony
29 by the defendant at the time of
sentencing shall be admissible
30 against the defendant at any subsequent
criminal proceeding. At
31 the conclusion of the evidentiary
presentation, the court shall al-
32 low the parties a reasonable period of
time in which to present
33 oral argument.
34 (c) If the
court finds that one or more of the aggravating cir-
35 cumstances enumerated in K.S.A.
21-4636, and amendments
36 thereto, exist and,
further, that the existence of such aggravating
37 circumstances is not outweighed by any
mitigating circumstances
38 which are found to exist, the defendant
shall be sentenced pursu-
39 ant to K.S.A. 21-4638, and
amendments thereto; otherwise, the
40 defendant shall be sentenced as provided
by law. The court shall
41 designate, in writing, the statutory
aggravating circumstances
42 which it found. The court may make the
findings required by this
43 subsection for the purpose of
determining whether to sentence a
SB 131--Am. by H
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1 defendant pursuant to K.S.A.
21-4638, and amendments thereto, not-
2 withstanding contrary findings
made by the jury or court pursuant
3 to subsection (e) of K.S.A.
21-4624, and amendments thereto,
for
4 the purpose of determining whether
to sentence such defendant
5 to death.
6 Sec.
17. K.S.A. 21-4638 is hereby amended to read as
follows:
7 21-4638. When it is provided by
law that a person shall be sen-
8 tenced pursuant to this section,
such person shall be sentenced to
9 imprisonment for life and shall
not be eligible for probation or
10 suspension, modification or reduction of
sentence. In addition, a
11 person sentenced pursuant to this
section shall not be eligible for
12 parole prior to serving 40 years'
imprisonment, and such 40 years'
13 imprisonment shall not be reduced by the
application of good time
14 credits. For crimes committed on
and after July 1, 1999, a person sen-
15 tenced pursuant to this section shall
not be eligible for parole prior to
16 serving 50 years' imprisonment, and such
50 years' imprisonment shall
17 not be reduced by the application of
good time credits. Upon sentencing
18 a defendant pursuant to this section,
the court shall commit the
19 defendant to the custody of the
secretary of corrections and the
20 court shall state in the sentencing
order of the judgment form or
21 journal entry, whichever is delivered
with the defendant to the
22 correctional institution, that the
defendant has been sentenced
23 pursuant to K.S.A. 21-4638.
24 Sec.
15. 13
18. K.S.A. 1998 Supp. 21-4704 is hereby amended to
25 read as follows: 21-4704. (a) For purposes
of sentencing, the following
26 sentencing guidelines grid for nondrug
crimes shall be applied in felony
27 cases for crimes committed on or after July
1, 1993:
SB 131--Am. by H
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1
SB 131--Am. by H
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1 (b) The
provisions of this section shall be applicable to the
sentencing
2 guidelines grid for nondrug crimes.
Sentences expressed in such grid
3 represent months of imprisonment.
4 (c) The
sentencing guidelines grid is a two-dimensional crime severity
5 and criminal history classification
tool. The grid's vertical axis is the crime
6 severity scale which classifies
current crimes of conviction. The grid's
7 horizontal axis is the criminal
history scale which classifies criminal
8 histories.
9 (d) The
sentencing guidelines grid for nondrug crimes as provided in
10 this section defines presumptive
punishments for felony convictions, sub-
11 ject to judicial discretion to deviate for
substantial and compelling reasons
12 and impose a different sentence in
recognition of aggravating and miti-
13 gating factors as provided in this act. The
appropriate punishment for a
14 felony conviction should depend on the
severity of the crime of conviction
15 when compared to all other crimes and the
offender's criminal history.
16 (e) (1) The
sentencing court has discretion to sentence at any place
17 within the sentencing range. The sentencing
judge shall select the center
18 of the range in the usual case and reserve
the upper and lower limits for
19 aggravating and mitigating factors
insufficient to warrant a departure.
20 (2) In
presumptive imprisonment cases, the sentencing court shall
21 pronounce the complete sentence which shall
include the prison sen-
22 tence, the maximum potential reduction to
such sentence as a result of
23 good time and the period of postrelease
supervision at the sentencing
24 hearing. Failure to pronounce the period of
postrelease supervision shall
25 not negate the existence of such period of
postrelease supervision.
26 (3) In
presumptive nonprison cases, the sentencing court shall pro-
27 nounce the prison sentence as well as the
duration of the nonprison sanc-
28 tion at the sentencing hearing.
29 (f) Each grid
block states the presumptive sentencing range for an
30 offender whose crime of conviction and
criminal history place such of-
31 fender in that grid block. If an offense is
classified in a grid block below
32 the dispositional line, the presumptive
disposition shall be nonimprison-
33 ment. If an offense is classified in a grid
block above the dispositional
34 line, the presumptive disposition shall be
imprisonment. If an offense is
35 classified in grid blocks 5-H, 5-I or 6-G,
the court may impose an optional
36 nonprison sentence upon making the
following findings on the record:
37 (1) An
appropriate treatment program exists which is likely to be
38 more effective than the presumptive prison
term in reducing the risk of
39 offender recidivism; and
40 (2) the
recommended treatment program is available and the of-
41 fender can be admitted to such program
within a reasonable period of
42 time; or
43 (3) the nonprison
sanction will serve community safety interests by
SB 131--Am. by H
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1 promoting offender reformation.
2 Any decision
made by the court regarding the imposition of an optional
3 nonprison sentence if the offense is
classified in grid blocks 5-H, 5-I or
4 6-G shall not be considered a
departure and shall not be subject to appeal.
5 (g) The
sentence for the violation of K.S.A. 21-3411, aggravated as-
6 sault against a law enforcement
officer or K.S.A. 21-3415, aggravated
7 battery against a law enforcement
officer and amendments thereto which
8 places the defendant's sentence in
grid block 6-H or 6-I shall be pre-
9 sumed imprisonment. The court may
impose an optional nonprison sen-
10 tence upon making a finding on the record
that the nonprison sanction
11 will serve community safety interests by
promoting offender reformation.
12 Any decision made by the court regarding
the imposition of the optional
13 nonprison sentence, if the offense is
classified in grid block 6-H or 6-I,
14 shall not be considered departure and shall
not be subject to appeal.
15 (h) When a
firearm is used to commit any person felony, the of-
16 fender's sentence shall be presumed
imprisonment. The court may im-
17 pose an optional nonprison sentence upon
making a finding on the record
18 that the nonprison sanction will serve
community safety interests by pro-
19 moting offender reformation. Any decision
made by the court regarding
20 the imposition of the optional nonprison
sentence shall not be considered
21 a departure and shall not be subject to
appeal.
22 (i) The sentence
for the violation of the felony provision of K.S.A. 8-
23 1567
and,
subsection (b) of K.S.A.
21-3705, and subsection
(b)(3) (c)(3)
24 of K.S.A. 21-3412 and amendments
thereto shall be as provided by the
25 specific mandatory sentencing requirements
of that section and shall not
26 be subject to the provisions of this
section or K.S.A. 21-4707 and amend-
27 ments thereto. Notwithstanding the
provisions of any other section, the
28 term of imprisonment imposed for the
violation of the felony provision
29 of K.S.A. 8-1567
and,
subsection (b) of K.S.A.
21-3705, and subsection
30 (b)(3)
(c)(3) of K.S.A. 21-3412 and amendments thereto shall
not be
31 served in a state facility in the custody
of the secretary of corrections.
32 (j) The sentence
for any persistent sex offender whose current con-
33 victed crime carries a presumptive term of
imprisonment shall be double
34 the maximum duration of the presumptive
imprisonment term. The sen-
35 tence for any persistent sex offender whose
current conviction carries a
36 presumptive nonprison term shall be
presumed imprisonment and shall
37 be double the maximum duration of the
presumptive imprisonment term.
38 Except as otherwise provided in this
subsection, as used in this subsection,
39 "persistent sex offender" means a person
who: (1) Has been convicted in
40 this state of a sexually violent crime, as
defined in K.S.A. 22-3717 and
41 amendments thereto; and (2) at the time of
the conviction under subsec-
42 tion (1) has at least one conviction for a
sexually violent crime, as defined
43 in K.S.A. 22-3717 and amendments thereto in
this state or comparable
SB 131--Am. by H
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1 felony under the laws of another
state, the federal government or a for-
2 eign government. The provisions of
this subsection shall not apply to any
3 person whose current convicted crime
is a severity level 1 or 2 felony.
4 (k) If it
is shown at sentencing that the offender committed any felony
5 violation for the benefit of, at the
direction of, or in association with any
6 criminal street gang, with the
specific intent to promote, further or assist
7 in any criminal conduct by gang
members, the offender's sentence shall
8 be presumed imprisonment. Any
decision made by the court regarding
9 the imposition of the optional
nonprison sentence shall not be considered
10 a departure and shall not be subject to
appeal. As used in this subsection,
11 "criminal street gang" means any
organization, association or group of
12 three or more persons, whether formal or
informal, having as one of its
13 primary activities the commission of one or
more person felonies or felony
14 violations of the uniform controlled
substances act, K.S.A. 65-4101 et seq.,
15 and amendments thereto, which has a common
name or common iden-
16 tifying sign or symbol, whose members,
individually or collectively engage
17 in or have engaged in the commission,
attempted commission, conspiracy
18 to commit or solicitation of two or more
person felonies or felony viola-
19 tions of the uniform controlled substances
act, K.S.A. 65-4101 et seq.,
20 and amendments thereto, or any
substantially similar offense from an-
21 other jurisdiction.
22 (l) The
sentence for a violation of subsection (a) of K.S.A.
21-3715
23 and amendments thereto when such person
being sentenced has a prior
24 conviction for a violation of subsection
(a) or (b) of K.S.A. 21-3715 or 21-
25 3716 and amendments thereto shall be
presumed imprisonment.
26 Sec.
16. 14
19. K.S.A. 1998 Supp. 21-4706 is hereby amended to
27 read as follows: 21-4706. (a) For crimes
committed on or after July 1,
28 1993, the sentences of imprisonment shall
represent the time a person
29 shall actually serve, subject to a
reduction of up to 15% of the primary
30 sentence for good time as authorized by
law.
31 (b) The
sentencing court shall pronounce sentence in all felony cases.
32 (c) Violations of
K.S.A. 21-3401, subsection (a) of K.S.A. 21-3402,
21-
33 3439 and 21-3801 and amendments thereto are
off-grid crimes for the
34 purpose of sentencing. Except as otherwise
provided by K.S.A. 21-4622
35 through 21-4627, and 21-4629 through
21-4631, and amendments
36 thereto, the sentence shall be imprisonment
for life.
37 Sec.
17. 15
20. K.S.A. 1998 Supp. 22-3717 is hereby amended to
38 read as follows: 22-3717. (a) Except as
otherwise provided by this section,
39 K.S.A. 1993 Supp. 21-4628 prior to its
repeal and K.S.A. 21-4635 through
40 21-4638 and amendments thereto, an inmate,
including an inmate sen-
41 tenced pursuant to K.S.A. 21-4618 and
amendments thereto, shall be
42 eligible for parole after serving the
entire minimum sentence imposed by
43 the court, less good time credits.
SB 131--Am. by H
21
1 (b)
(1) Except as provided by K.S.A. 21-4635 through 21-4638
and
2 amendments thereto, an inmate
sentenced to imprisonment for the crime
3 of capital murder, or an inmate
sentenced for the crime of murder in the
4 first degree based upon a finding of
premeditated murder, committed on
5 or after July 1, 1994, shall be
eligible for parole after serving 25 years of
6 confinement, without deduction of any
good time credits.
7 (2) Except
as provided by subsection (b)(1) or (b)(4), K.S.A. 1993
8 Supp. 21-4628 prior to its repeal and
K.S.A. 21-4635 through 21-4638,
9 and amendments thereto, an inmate
sentenced to imprisonment for an
10 off-grid offense committed on or after July
1, 1993, but prior to July 1,
11 1999, shall be eligible for parole
after serving 15 years of confinement,
12 without deduction of any good time credits
and an inmate sentenced to
13 imprisonment for an off-grid offense
committed on or after July 1, 1999,
14 shall be eligible for parole after
serving 20 years of confinement without
15 deduction of any good time
credits.
16 (3) Except as
provided by K.S.A. 1993 Supp. 21-4628 prior to its
17 repeal, an inmate sentenced for a class A
felony committed before July
18 1, 1993, including an inmate sentenced
pursuant to K.S.A. 21-4618 and
19 amendments thereto, shall be eligible for
parole after serving 15 years of
20 confinement, without deduction of any good
time credits.
21 (4) An inmate
sentenced to imprisonment for a violation of subsec-
22 tion (a) of K.S.A. 21-3402 and amendments
thereto committed on or after
23 July 1, 1996 but prior to July 1,
1999, shall be eligible for parole after
24 serving 10 years of confinement without
deduction of any good time
25 credits.
26 (c) Except as
provided in subsection (e), if an inmate is sentenced to
27 imprisonment for more than one crime and
the sentences run consecu-
28 tively, the inmate shall be eligible for
parole after serving the total of:
29 (1) The aggregate
minimum sentences, as determined pursuant to
30 K.S.A. 21-4608 and amendments thereto, less
good time credits for those
31 crimes which are not class A felonies;
and
32 (2) an additional
15 years, without deduction of good time credits,
33 for each crime which is a class A
felony.
34 (d)
(1) Persons sentenced for crimes, other than off-grid
crimes,
35 committed on or after July 1, 1993, will
not be eligible for parole, but will
36 be released to a mandatory period of
postrelease supervision upon com-
37 pletion of the prison portion of their
sentence as follows:
38 (A) Except as
provided in subparagraphs (C) and (D), persons sen-
39 tenced for nondrug severity level 1 through
6 crimes and drug severity
40 levels 1 through 3 crimes must serve 36
months, plus the amount of good
41 time earned and retained pursuant to K.S.A.
21-4722 and amendments
42 thereto, on postrelease supervision.
43 (B) Except as
provided in subparagraphs (C) and (D), persons sen-
SB 131--Am. by H
22
1 tenced for nondrug severity level 7
through 10 crimes and drug severity
2 level 4 crimes must serve 24 months,
plus the amount of good time earned
3 and retained pursuant to K.S.A.
21-4722 and amendments thereto, on
4 postrelease supervision.
5 (C)
(i) The sentencing judge shall impose the postrelease
supervision
6 period provided in subparagraph
(d)(1)(A) or (d)(1)(B), unless the judge
7 finds substantial and compelling
reasons to impose a departure based
8 upon a finding that the current crime
of conviction was sexually violent
9 or sexually motivated. In that event,
departure may be imposed to extend
10 the postrelease supervision to a period of
up to 60 months.
11 (ii) If the
sentencing judge departs from the presumptive postrelease
12 supervision period, the judge shall state
on the record at the time of
13 sentencing the substantial and compelling
reasons for the departure. De-
14 partures in this section are subject to
appeal pursuant to K.S.A. 21-4721
15 and amendments thereto.
16 (iii) In
determining whether substantial and compelling reasons exist,
17 the court shall consider:
18 (a) Written
briefs or oral arguments submitted by either the defend-
19 ant or the state;
20 (b) any evidence
received during the proceeding;
21 (c) the
presentence report, the victim's impact statement and any
22 psychological evaluation as ordered by the
court pursuant to subsection
23 (e) of K.S.A. 21-4714 and amendments
thereto; and
24 (d) any other
evidence the court finds trustworthy and reliable.
25 (iv) The
sentencing judge may order that a psychological evaluation
26 be prepared and the recommended programming
be completed by the
27 offender. The department of corrections or
the parole board shall ensure
28 that court ordered sex offender treatment
be carried out.
29 (v) In carrying
out the provisions of subparagraph (d)(1)(C), the court
30 shall refer to K.S.A. 21-4718 and
amendments thereto.
31 (vi) Upon
petition, the parole board may provide for early discharge
32 from the postrelease supervision period
upon completion of court or-
33 dered programs and completion of the
presumptive postrelease super-
34 vision period, as determined by the crime
of conviction, pursuant to sub-
35 paragraph (d)(1)(A) or (B). Early discharge
from postrelease supervision
36 is at the discretion of the parole
board.
37 (vii) Persons
convicted of crimes deemed sexually violent or sexually
38 motivated, shall be registered according to
the habitual sex offender reg-
39 istration act, K.S.A. 22-4901 through
22-4910 and amendments thereto.
40 (D) The period of
postrelease supervision provided in subparagraphs
41 (A) and (B) may be reduced by up to 12
months based on the offender's
42 compliance with conditions of supervision
and overall performance while
43 on postrelease supervision. The reduction
in the supervision period shall
SB 131--Am. by H
23
1 be on an earned basis pursuant to
rules and regulations adopted by the
2 secretary of corrections.
3 (E) In
cases where sentences for crimes from more than one severity
4 level have been imposed, the offender
shall serve the longest period of
5 postrelease supervision as provided
by this section available for any crime
6 upon which sentence was imposed
irrespective of the severity level of the
7 crime. Supervision periods will not
aggregate.
8 (2) As used
in this section, "sexually violent crime" means:
9 (A) Rape,
K.S.A. 21-3502, and amendments thereto;
10 (B) indecent
liberties with a child, K.S.A. 21-3503, and amendments
11 thereto;
12 (C) aggravated
indecent liberties with a child, K.S.A. 21-3504, and
13 amendments thereto;
14 (D) criminal
sodomy, subsection (a)(2) and (a)(3) of K.S.A. 21-3505
15 and amendments thereto;
16 (E) aggravated
criminal sodomy, K.S.A. 21-3506, and amendments
17 thereto;
18 (F) indecent
solicitation of a child, K.S.A. 21-3510, and amendments
19 thereto;
20 (G) aggravated
indecent solicitation of a child, K.S.A. 21-3511, and
21 amendments thereto;
22 (H) sexual
exploitation of a child, K.S.A. 21-3516, and amendments
23 thereto;
24 (I) aggravated
sexual battery, K.S.A. 21-3518, and amendments
25 thereto;
26 (J) any
conviction for a felony offense in effect at any time prior to
27 the effective date of this act, that is
comparable to a sexually violent crime
28 as defined in subparagraphs (A) through
(I), or any federal or other state
29 conviction for a felony offense that under
the laws of this state would be
30 a sexually violent crime as defined in this
section;
31 (K) an attempt,
conspiracy or criminal solicitation, as defined in
32 K.S.A. 21-3301, 21-3302, 21-3303, and
amendments thereto, of a sexually
33 violent crime as defined in this section;
or
34 (L) any act which
at the time of sentencing for the offense has been
35 determined beyond a reasonable doubt to
have been sexually motivated.
36 As used in this subparagraph, "sexually
motivated" means that one of the
37 purposes for which the defendant committed
the crime was for the pur-
38 pose of the defendant's sexual
gratification.
39 (e) If an inmate
is sentenced to imprisonment for a crime committed
40 while on parole or conditional release, the
inmate shall be eligible for
41 parole as provided by subsection (c),
except that the Kansas parole board
42 may postpone the inmate's parole
eligibility date by assessing a penalty
43 not exceeding the period of time which
could have been assessed if the
SB 131--Am. by H
24
1 inmate's parole or conditional
release had been violated for reasons other
2 than conviction of a crime.
3 (f) If a
person is sentenced to prison for a crime committed on or
4 after July 1, 1993, while on
probation, parole, conditional release or in a
5 community corrections program, for a
crime committed prior to July 1,
6 1993, and the person is not eligible
for retroactive application of the
7 sentencing guidelines and amendments
thereto pursuant to K.S.A. 21-
8 4724 and amendments thereto, the new
sentence shall not be aggregated
9 with the old sentence, but shall
begin when the person is paroled or
10 reaches the conditional release date on the
old sentence. If the offender
11 was past the offender's conditional release
date at the time the new of-
12 fense was committed, the new sentence shall
not be aggregated with the
13 old sentence but shall begin when the
person is ordered released by the
14 Kansas parole board or reaches the maximum
sentence expiration date
15 on the old sentence, whichever is earlier.
The new sentence shall then
16 be served as otherwise provided by law. The
period of postrelease su-
17 pervision shall be based on the new
sentence, except that those offenders
18 whose old sentence is a term of
imprisonment for life, imposed pursuant
19 to K.S.A. 1993 Supp. 21-4628 prior to its
repeal, or an indeterminate
20 sentence with a maximum term of life
imprisonment, for which there is
21 no conditional release or maximum sentence
expiration date, shall remain
22 on postrelease supervision for life or
until discharged from supervision
23 by the Kansas parole board.
24 (g) Subject to
the provisions of this section, the Kansas parole board
25 may release on parole those persons
confined in institutions who are el-
26 igible for parole when: (1) The board
believes that the inmate should be
27 released for hospitalization, for
deportation or to answer the warrant or
28 other process of a court and is of the
opinion that there is reasonable
29 probability that the inmate can be released
without detriment to the com-
30 munity or to the inmate; or (2) the
secretary of corrections has reported
31 to the board in writing that the inmate has
satisfactorily completed the
32 programs required by any agreement entered
under K.S.A. 75-5210a and
33 amendments thereto, or any revision of such
agreement, and the board
34 believes that the inmate is able and
willing to fulfill the obligations of a
35 law abiding citizen and is of the opinion
that there is reasonable proba-
36 bility that the inmate can be released
without detriment to the community
37 or to the inmate. Parole shall not be
granted as an award of clemency and
38 shall not be considered a reduction of
sentence or a pardon.
39 (h) The Kansas
parole board shall hold a parole hearing at least the
40 month prior to the month an inmate will be
eligible for parole under
41 subsections (a), (b) and (c). At least the
month preceding the parole hear-
42 ing, the county or district attorney of the
county where the inmate was
43 convicted shall give written notice of the
time and place of the public
SB 131--Am. by H
25
1 comment sessions for the inmate to
any victim of the inmate's crime who
2 is alive and whose address is known
to the county or district attorney or,
3 if the victim is deceased, to the
victim's family if the family's address is
4 known to the county or district
attorney. Except as otherwise provided,
5 failure to notify pursuant to this
section shall not be a reason to postpone
6 a parole hearing. In the case of any
inmate convicted of a class A felony
7 the secretary of corrections shall
give written notice of the time and place
8 of the public comment session for
such inmate at least one month pre-
9 ceding the public comment session to
any victim of such inmate's crime
10 or the victim's family pursuant to K.S.A.
74-7338 and amendments
11 thereto. If notification is not given to
such victim or such victim's family
12 in the case of any inmate convicted of a
class A felony, the board shall
13 postpone a decision on parole of the inmate
to a time at least 30 days
14 after notification is given as provided in
this section. Nothing in this sec-
15 tion shall create a cause of action against
the state or an employee of the
16 state acting within the scope of the
employee's employment as a result
17 of the failure to notify pursuant to this
section. If granted parole, the
18 inmate may be released on parole on the
date specified by the board, but
19 not earlier than the date the inmate is
eligible for parole under subsec-
20 tions (a), (b) and (c). At each parole
hearing and, if parole is not granted,
21 at such intervals thereafter as it
determines appropriate, the Kansas parole
22 board shall consider: (1) Whether the
inmate has satisfactorily completed
23 the programs required by any agreement
entered under K.S.A. 75-5210a
24 and amendments thereto, or any revision of
such agreement; and (2) all
25 pertinent information regarding such
inmate, including, but not limited
26 to, the circumstances of the offense of the
inmate; the presentence report;
27 the previous social history and criminal
record of the inmate; the conduct,
28 employment, and attitude of the inmate in
prison; the reports of such
29 physical and mental examinations as have
been made; comments of the
30 victim and the victim's family; comments of
the public; official comments;
31 and capacity of state correctional
institutions.
32 (i) In those
cases involving inmates sentenced for a crime committed
33 after July 1, 1993, the parole board will
review the inmates proposed
34 release plan. The board may schedule a
hearing if they desire. The board
35 may impose any condition they deem
necessary to insure public safety,
36 aid in the reintegration of the inmate into
the community, or items not
37 completed under the agreement entered into
under K.S.A. 75-5210a and
38 amendments thereto. The board may not
advance or delay an inmate's
39 release date. Every inmate while on
postrelease supervision shall remain
40 in the legal custody of the secretary of
corrections and is subject to the
41 orders of the secretary.
42 (j) Before
ordering the parole of any inmate, the Kansas parole board
43 shall have the inmate appear before either
in person or via a video con-
SB 131--Am. by H
26
1 ferencing format and shall interview
the inmate unless impractical be-
2 cause of the inmate's physical or
mental condition or absence from the
3 institution. Every inmate while on
parole shall remain in the legal custody
4 of the secretary of corrections and
is subject to the orders of the secretary.
5 Whenever the Kansas parole board
formally considers placing an inmate
6 on parole and no agreement has been
entered into with the inmate under
7 K.S.A. 75-5210a and amendments
thereto, the board shall notify the in-
8 mate in writing of the reasons for
not granting parole. If an agreement
9 has been entered under K.S.A.
75-5210a and amendments thereto and
10 the inmate has not satisfactorily completed
the programs specified in the
11 agreement, or any revision of such
agreement, the board shall notify the
12 inmate in writing of the specific programs
the inmate must satisfactorily
13 complete before parole will be granted. If
parole is not granted only
14 because of a failure to satisfactorily
complete such programs, the board
15 shall grant parole upon the secretary's
certification that the inmate has
16 successfully completed such programs. If an
agreement has been entered
17 under K.S.A. 75-5210a and amendments
thereto and the secretary of
18 corrections has reported to the board in
writing that the inmate has sat-
19 isfactorily completed the programs required
by such agreement, or any
20 revision thereof, the board shall not
require further program participa-
21 tion. However, if the board determines that
other pertinent information
22 regarding the inmate warrants the inmate's
not being released on parole,
23 the board shall state in writing the
reasons for not granting the parole. If
24 parole is denied for an inmate sentenced
for a crime other than a class A
25 or class B felony or an off-grid felony,
the board shall hold another parole
26 hearing for the inmate not later than one
year after the denial unless the
27 parole board finds that it is not
reasonable to expect that parole would
28 be granted at a hearing if held in the next
three years or during the interim
29 period of a deferral. In such case, the
parole board may defer subsequent
30 parole hearings for up to three years but
any such deferral by the board
31 shall require the board to state the basis
for its findings. If parole is denied
32 for an inmate sentenced for a class A or
class B felony or an off-grid
33 felony, the board shall hold another parole
hearing for the inmate not
34 later than three years after the denial
unless the parole board finds that
35 it is not reasonable to expect that parole
would be granted at a hearing if
36 held in the next 10 years or during the
interim period of a deferral. In
37 such case, the parole board may defer
subsequent parole hearings for up
38 to 10 years but any such deferral shall
require the board to state the basis
39 for its findings.
40 (k) Parolees and
persons on postrelease supervision shall be assigned,
41 upon release, to the appropriate level of
supervision pursuant to the cri-
42 teria established by the secretary of
corrections.
43 (l) The Kansas
parole board shall adopt rules and regulations in ac-
SB 131--Am. by H
27
1 cordance with K.S.A. 77-415 et
seq., and amendments thereto, not in-
2 consistent with the law and as it may
deem proper or necessary, with
3 respect to the conduct of parole
hearings, postrelease supervision reviews,
4 revocation hearings, orders of
restitution, reimbursement of expenditures
5 by the state board of indigents'
defense services and other conditions to
6 be imposed upon parolees or
releasees. Whenever an order for parole or
7 postrelease supervision is issued it
shall recite the conditions thereof.
8
(m) Whenever the Kansas parole board orders the parole of an
in-
9 mate or establishes conditions for an
inmate placed on postrelease su-
10 pervision, the board:
11 (1) Unless it
finds compelling circumstances which would render a
12 plan of payment unworkable, shall order as
a condition of parole or post-
13 release supervision that the parolee or the
person on postrelease super-
14 vision pay any transportation expenses
resulting from returning the pa-
15 rolee or the person on postrelease
supervision to this state to answer
16 criminal charges or a warrant for a
violation of a condition of probation,
17 assignment to a community correctional
services program, parole, con-
18 ditional release or postrelease
supervision;
19 (2) to the extent
practicable, shall order as a condition of parole or
20 postrelease supervision that the parolee or
the person on postrelease su-
21 pervision make progress towards or
successfully complete the equivalent
22 of a secondary education if the inmate has
not previously completed such
23 educational equivalent and is capable of
doing so;
24 (3) may order
that the parolee or person on postrelease supervision
25 perform community or public service work
for local governmental agen-
26 cies, private corporations organized
not-for-profit or charitable or social
27 service organizations performing services
for the community;
28 (4) may order the
parolee or person on postrelease supervision to pay
29 the administrative fee imposed pursuant to
K.S.A. 1998 Supp. 22-4529
30 unless the board finds compelling
circumstances which would render pay-
31 ment unworkable; and
32 (5) unless it
finds compelling circumstances which would render a
33 plan of payment unworkable, shall order
that the parolee or person on
34 postrelease supervision reimburse the state
for all or part of the expend-
35 itures by the state board of indigents'
defense services to provide counsel
36 and other defense services to the person.
In determining the amount and
37 method of payment of such sum, the parole
board shall take account of
38 the financial resources of the person and
the nature of the burden that
39 the payment of such sum will impose. Such
amount shall not exceed the
40 amount claimed by appointed counsel on the
payment voucher for indi-
41 gents' defense services or the amount
prescribed by the board of indi-
42 gents' defense services reimbursement
tables as provided in K.S.A. 22-
43 4522 and amendments thereto, whichever is
less, minus any previous
SB 131--Am. by H
28
1 payments for such services.
2 (n) If the
court which sentenced an inmate specified at the time of
3 sentencing the amount and the
recipient of any restitution ordered as a
4 condition of parole or postrelease
supervision, the Kansas parole board
5 shall order as a condition of parole
or postrelease supervision that the
6 inmate pay restitution in the amount
and manner provided in the journal
7 entry unless the board finds
compelling circumstances which would ren-
8 der a plan of restitution
unworkable.
9
(o) Whenever the Kansas parole board grants the parole of an
inmate,
10 the board, within 10 days of the date of
the decision to grant parole, shall
11 give written notice of the decision to the
county or district attorney of the
12 county where the inmate was sentenced.
13 (p) When an
inmate is to be released on postrelease supervision, the
14 secretary, within 30 days prior to release,
shall provide the county or
15 district attorney of the county where the
inmate was sentenced written
16 notice of the release date.
17 (q) Inmates shall
be released on postrelease supervision upon the
18 termination of the prison portion of their
sentence. Time served while
19 on postrelease supervision will vest.
20 (r) An inmate who
is allocated regular good time credits as provided
21 in K.S.A. 22-3725 and amendments thereto
may receive meritorious good
22 time credits in increments of not more than
90 days per meritorious act.
23 These credits may be awarded by the
secretary of corrections when an
24 inmate has acted in a heroic or outstanding
manner in coming to the
25 assistance of another person in a life
threatening situation, preventing
26 injury or death to a person, preventing the
destruction of property or
27 taking actions which result in a financial
savings to the state.
28 Sec.
18. 16
21. K.S.A. 1998 Supp. 22-4902 is hereby amended to
29 read as follows: 22-4902. As used in this
act, unless the context otherwise
30 requires:
31 (a) "Offender"
means: (1) A sex offender as defined in subsection (b);
32 (2) a violent offender as defined in
subsection (d); (3) any person who,
33 on and after the effective date of this
act, is convicted of any of the
34 following crimes when the victim is less
than 18 years of age:
35 (A) Kidnapping as
defined in K.S.A. 21-3420 and amendments
36 thereto, except by a parent;
37 (B) aggravated
kidnapping as defined in K.S.A. 21-3421 and amend-
38 ments thereto; or
39 (C) criminal
restraint as defined in K.S.A. 21-3424 and amendments
40 thereto, except by a parent;
41 (4) any person
convicted of any of the following criminal sexual con-
42 duct if one of the parties
involved the victim is less than 18 years of
age
43 and the offender is three or
more years of age older than the child and
SB 131--Am. by H
29
1 the offender is 19 or more years
of age and four or more years of
2 age older than the victim:
3
(A) Adultery as defined by K.S.A. 21-3507, and amendments
thereto;
4
(B) criminal sodomy as defined by subsection (a)(1) of K.S.A.
21-
5 3505, and amendments thereto;
6
(C) promoting prostitution as defined by K.S.A. 21-3513, and
amend-
7 ments thereto;
8
(D) patronizing a prostitute as defined by K.S.A. 21-3515,
and
9 amendments thereto;
10 (E) lewd and
lascivious behavior as defined by K.S.A. 21-3508, and
11 amendment thereto; or
12 (F) unlawful
sexual relations as defined by subsection (a)(1) or (2)
of
13 K.S.A. 21-3520, and amendments thereto;
14 (5) any
conviction for an offense in effect at any time prior to the
15 effective date of this act, that is
comparable to any crime defined in sub-
16 section (3) or (4), or any federal or other
state conviction for an offense
17 that under the laws of this state would be
an offense defined in subsection
18 (3) or (4); or
19 (6) an attempt,
conspiracy or criminal solicitation, as defined in
20 K.S.A. 21-3301, 21-3302 or 21-3303 and
amendments thereto, of an of-
21 fense defined in subsection (3) or (4).
22 Upon such conviction,
the court shall certify that the person is an of-
23 fender subject to the provisions of K.S.A.
22-4901 et seq. and amend-
24 ments thereto and shall include this
certification in the order of commit-
25 ment. Convictions which result from or are
connected with the same act,
26 or result from crimes committed at the same
time, shall be counted for
27 the purpose of this section as one
conviction. Any conviction set aside
28 pursuant to law is not a conviction for
purposes of this section. A convic-
29 tion from another state shall constitute a
conviction for purposes of this
30 section.
31 (b) "Sex
offender" includes any person who, after the effective date
32 of this act, is convicted of any sexually
violent crime set forth in subsection
33 (c). Upon such conviction, the court shall
certify that the person is a sex
34 offender and shall include this
certification in the order of commitment.
35 Convictions which result from or are
connected with the same act, or
36 result from crimes committed at the same
time, shall be counted for the
37 purpose of this section as one conviction.
Any conviction set aside pur-
38 suant to law is not a conviction for
purposes of this section. A conviction
39 from another state shall constitute a
conviction for purposes of this
40 section.
41 (c) "Sexually
violent crime" means:
42 (1) Rape as
defined in K.S.A. 21-3502 and amendments thereto;
43 (2) indecent
liberties with a child as defined in K.S.A. 21-3503 and
SB 131--Am. by H
30
1 amendments thereto;
2
(3) aggravated indecent liberties with a child as defined in
K.S.A. 21-
3 3504 and amendments thereto;
4
(4) criminal sodomy as defined in subsection (a)(2) and (a)(3)
of
5 K.S.A. 21-3505 and amendments
thereto;
6
(5) aggravated criminal sodomy as defined in K.S.A. 21-3506
and
7 amendments thereto;
8
(6) indecent solicitation of a child as defined by K.S.A.
21-3510 and
9 amendments thereto;
10 (7) aggravated
indecent solicitation of a child as defined by K.S.A.
11 21-3511 and amendments thereto;
12 (8) sexual
exploitation of a child as defined by K.S.A. 21-3516 and
13 amendments thereto;
14 (9) sexual
battery as defined by K.S.A. 21-3517 and amendments
15 thereto;
16 (10) aggravated
sexual battery as defined by K.S.A. 21-3518 and
17 amendments thereto;
18 (11) aggravated
incest as defined by K.S.A. 21-3603 and amendments
19 thereto; or
20 (12) any
conviction for a offense in effect at any time prior to the
21 effective date of this act, that is
comparable to a sexually violent crime as
22 defined in subparagraphs (1) through (11),
or any federal or other state
23 conviction for a felony offense that under
the laws of this state would be
24 a sexually violent crime as defined in this
section;
25 (13) an attempt,
conspiracy or criminal solicitation, as defined in
26 K.S.A. 21-3301, 21-3302 or 21-3303 and
amendments thereto, of a sex-
27 ually violent crime, as defined in this
section; or
28 (14) any act
which at the time of sentencing for the offense has been
29 determined beyond a reasonable doubt to
have been sexually motivated.
30 As used in this subparagraph, "sexually
motivated" means that one of the
31 purposes for which the defendant committed
the crime was for the pur-
32 pose of the defendant's sexual
gratification.
33 (d) "Violent
offender" includes any person who, after the effective
34 date of this act, is convicted of any of
the following crimes:
35 (1) Capital
murder as defined by K.S.A. 21-3439 and amendments
36 thereto;
37 (2) murder in the
first degree as defined by K.S.A. 21-3401 and
38 amendments thereto;
39 (3) murder in the
second degree as defined by K.S.A. 21-3402 and
40 amendments thereto;
41 (4) voluntary
manslaughter as defined by K.S.A. 21-3403 and amend-
42 ments thereto;
43 (5) involuntary
manslaughter as defined by K.S.A. 21-3404 and
SB 131--Am. by H
31
1 amendments thereto; or
2 (6) any
conviction for an offense in effect at any time prior to the
3 effective date of this act, that is
comparable to any crime defined in this
4 subsection, or any federal or other
state conviction for an offense that
5 under the laws of this state would be
an offense defined in this subsection;
6 or
7 (7) an
attempt, conspiracy or criminal solicitation, as defined in
8 K.S.A. 21-3301, 21-3302 or 21-3303
and amendments thereto, of an of-
9 fense defined in this subsection.
10 Upon such conviction,
the court shall certify that the person is an of-
11 fender subject to the provisions of K.S.A.
22-4901 et seq. and amend-
12 ments thereto and shall include this
certification in the order of commit-
13 ment. Convictions which result from or are
connected with the same act,
14 or result from crimes committed at the same
time, shall be counted for
15 the purpose of this section as one
conviction. Any conviction set aside
16 pursuant to law is not a conviction for
purposes of this section. A convic-
17 tion from another state shall constitute a
conviction for purposes of this
18 section.
19 (e) "Law
enforcement agency having jurisdiction" means the sheriff
20 of the county in which the offender expects
to reside upon the offender's
21 discharge, parole or release.
22 Sec.
19. 17
22. K.S.A. 1998 Supp. 75-5217 is hereby amended to
23 read as follows: 75-5217. (a) At any time
during release on parole, con-
24 ditional release or postrelease
supervision, the secretary of corrections
25 may issue a warrant for the arrest of a
released inmate for violation of
26 any of the conditions of release, or a
notice to appear to answer to a
27 charge of violation. Such notice shall be
served personally upon the re-
28 leased inmate. The warrant shall authorize
any law enforcement officer
29 to arrest and deliver the released inmate
to a place as provided by sub-
30 section (f). Any parole officer may arrest
such released inmate without a
31 warrant, or may deputize any other officer
with power of arrest to do so
32 by giving such officer a written arrest and
detain order setting forth that
33 the released inmate, in the judgment of the
parole officer, has violated
34 the conditions of the inmate's release. The
written arrest and detain order
35 delivered with the released inmate by the
arresting officer to the official
36 in charge of the institution or place to
which the released inmate is
37 brought for detention shall be sufficient
warrant for detaining the inmate.
38 After making an arrest the parole officer
shall present to the detaining
39 authorities a similar arrest and detain
order and statement of the circum-
40 stances of violation. Pending a hearing, as
provided in this section, upon
41 any charge of violation the released inmate
shall remain incarcerated in
42 the institution or place to which the
inmate is taken for detention.
43 (b) Upon such
arrest and detention, the parole officer shall notify the
SB 131--Am. by H
32
1 secretary of corrections, or the
secretary's designee, within five days and
2 shall submit in writing a report
showing in what manner the released
3 inmate had violated the conditions of
release. After such notification is
4 given to the secretary of
corrections, or upon an arrest by warrant as
5 herein provided, and the finding of
probable cause pursuant to proce-
6 dures established by the secretary of
a violation of the released inmate's
7 conditions of release, the secretary
shall cause the released inmate to be
8 brought before the Kansas parole
board, its designee or designees, for a
9 hearing on the violation charged,
under such rules and regulations as the
10 board may adopt. It is within the
discretion of the Kansas parole board
11 whether such hearing requires the released
inmate to appear personally
12 before the board when such inmate's
violation results from a conviction
13 for a new felony or misdemeanor. An
offender under determinant sen-
14 tencing whose violation does not result
from a conviction of a new felony
15 or misdemeanor may waive the right to a
final revocation hearing before
16 the Kansas parole board under such
conditions and terms as may be
17 prescribed by rules and regulations
promulgated by the Kansas parole
18 board. Relevant written statements
made under oath shall be admitted
19 and considered by the Kansas parole board,
its designee or designees,
20 along with other evidence presented at the
hearing. If the violation is
21 established to the satisfaction of the
Kansas parole board, the board may
22 continue or revoke the parole or
conditional release, or enter such other
23 order as the board may see fit.
Revocations The revocation of release
of
24 inmates who are is
on a specified period of postrelease supervision shall
25 be for a six-month period of confinement
from the date of the revocation
26 hearing before the board or the
effective date of waiver of such hearing
27 by the offender pursuant to rules and
regulations promulgated by the
28 Kansas parole board, if the
violation does not result from a conviction for
29 a new felony or misdemeanor. Such period of
confinement may be re-
30 duced by not more than 3 months based on
the inmate's conduct, work
31 and program participating during the
incarceration period. The reduction
32 in the incarceration period shall be on an
earned basis pursuant to rules
33 and regulations adopted by the secretary of
corrections.
34 (c) If the
violation does result from a conviction for a new felony or
35 misdemeanor, upon revocation the inmate
shall serve the entire remain-
36 ing balance of the period of postrelease
supervision even if the new con-
37 viction did not result in the imposition of
a new term of imprisonment.
38 (d) In the event
the released inmate reaches conditional release date
39 as provided by K.S.A. 22-3718 and
amendments thereto after a finding
40 of probable cause, pursuant to procedures
established by the secretary of
41 corrections of a violation of the released
inmate's conditions of release,
42 but prior to a hearing before the Kansas
parole board, the secretary of
43 corrections shall be authorized to detain
the inmate until the hearing by
SB 131--Am. by H
33
1 the Kansas parole board. The
secretary shall then enforce the order issued
2 by the Kansas parole board.
3 (e) If the
secretary of corrections issues a warrant for the arrest of a
4 released inmate for violation of any
of the conditions of release and the
5 released inmate is subsequently
arrested in the state of Kansas, either
6 pursuant to the warrant issued by the
secretary of corrections or for any
7 other reason, the released inmate's
sentence shall not be credited with
8 the period of time from the date of
the issuance of the secretary's warrant
9 to the date of the released inmate's
arrest.
10 If a released inmate
for whom a warrant has been issued by the sec-
11 retary of corrections for violation of the
conditions of release is subse-
12 quently arrested in another state, and the
released inmate has been au-
13 thorized as a condition of such inmate's
release to reside in or travel to
14 the state in which the released inmate was
arrested, and the released
15 inmate has not absconded from supervision,
the released inmate's sen-
16 tence shall not be credited with the period
of time from the date of the
17 issuance of the warrant to the date of the
released inmate's arrest. If the
18 released inmate for whom a warrant has been
issued by the secretary of
19 corrections for violation of the conditions
of release is subsequently ar-
20 rested in another state for reasons other
than the secretary's warrant and
21 the released inmate does not have
authorization to be in the other state
22 or if authorized to be in the other state
has been charged by the secretary
23 with having absconded from supervision, the
released inmate's sentence
24 shall not be credited with the period of
time from the date of the issuance
25 of the warrant by the secretary to the date
the released inmate is first
26 available to be returned to the state of
Kansas. If the released inmate for
27 whom a warrant has been issued by the
secretary of corrections for vio-
28 lation of a condition of release is
subsequently arrested in another state
29 pursuant only to the secretary's warrant,
the released inmate's sentence
30 shall not be credited with the period of
time from the date of the issuance
31 of the secretary's warrant to the date of
the released inmate's arrest,
32 regardless of whether the released inmate's
presence in the other state
33 was authorized or the released inmate had
absconded from supervision.
34 The secretary may
issue a warrant for the arrest of a released inmate
35 for violation of any of the conditions of
release and may direct that all
36 reasonable means to serve the warrant and
detain such released inmate
37 be employed including but not limited to
notifying the federal bureau of
38 investigation of such violation and
issuance of warrant and requesting
39 from the federal bureau of investigation
any pertinent information it may
40 possess concerning the whereabouts of the
released inmate.
41 (f) Law
enforcement officers shall execute warrants issued by the
42 secretary of corrections pursuant to
subsection (a) or (d), and shall deliver
43 the inmate named in the warrant to the jail
used by the county where the
SB 131--Am. by H
34
1 inmate is arrested unless some other
place is designated by the secretary,
2 in the same manner as for the
execution of any arrest warrant.
3 Sec. 20.
18 23. K.S.A.
21-3435, 21-3503, 21-3504, 21-3505, 21-
4 3510, 21-3520,
21-3705,
and, 21-4605,
21-4635 and 21-4638 21-4635
5 and 21-4638 and K.S.A. 1998
Supp. 8-262, 8-287, 21-3204, 21-3402,
6 21-3810, 21-4603d, 21-4704, 21-4706,
22-3717, 22-4902, and 75-5217 are
7 hereby repealed.
8 Sec. 21.
19 24. This act
shall take effect and be in force from and
9 after its publication in the statute
book.