[As Amended by House on Final Action]
         
As Amended by House Committee
         
Session of 1999
         
SENATE BILL No. 181
         
By Committee on Judiciary
         
2-1
         
11             AN  ACT concerning crimes and punishment; relating to determination
12             of criminal history classification; assault adjudications and convictions;
13             cruelty to animals; [worthless checks;] amending K.S.A. 1998
14             Supp. [21-3707,] 21-4310, 21-4704 and 21-4711 and repealing the
15             existing section sections.
16      
17       Be it enacted by the Legislature of the State of Kansas:
18             [Section  1. K.S.A. 1998 Supp. 21-3707 is hereby amended to
19       read as follows: 21-3707. (a) Giving a worthless check is the mak-
20       ing, drawing, issuing or delivering or causing or directing the mak-
21       ing, drawing, issuing or delivering of any check, order or draft on
22       any bank, credit union, savings and loan association or depository
23       for the payment of preexisting debt, money or its equivalent with
24       intent to defraud and knowing, at the time of the making, drawing,
25       issuing or delivering of such check, order or draft, that the maker
26       or drawer has no deposit in or credits with the drawee or has not
27       sufficient funds in, or credits with, the drawee for the payment of
28       such check, order or draft in full upon its presentation.
29             [(b) In any prosecution against the maker or drawer of a check,
30       order or draft payment, of which has been refused by the drawee
31       on account of insufficient funds, the making, drawing, issuing or
32       delivering of such check shall be prima facie evidence of intent to
33       defraud and of knowledge of insufficient funds in, or on deposit
34       with, the drawee: (1) Unless the maker or drawer pays the holder
35       thereof the amount due thereon and a service charge not exceed-
36       ing $10 for each check, within seven days after notice has been
37       given to the maker or drawer that such check, draft or order has
38       not been paid by the drawee. As used in this section, "notice" in-
39       cludes oral or written notice to the person entitled thereto. Written
40       notice shall be presumed to have been given when deposited as
41       restricted matter in the United States mail, addressed to the per-
42       son to be given notice at such person's address as it appears on

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  1       such check, draft or order; or (2) if a postdated date is placed on
  2       the check, order or draft without the knowledge or consent of the
  3       payee.
  4             [(c) In addition to all other costs and fees allowed by law, each
  5       prosecuting attorney who takes any action under the provisions of
  6       this section may collect from the issuer in such action an admin-
  7       istrative handling cost, except in cases filed in a court of appro-
  8       priate jurisdiction. The cost shall not exceed $10 for each check.
  9       If the issuer of the check is convicted in district court, the admin-
10       istrative handling costs may be assessed as part of the court costs
11       in the matter. The moneys collected pursuant to this subsection
12       shall be deposited into a trust fund which shall be administered by
13       the board of county commissioners. The funds shall be expended
14       only with the approval of the board of county commissioners, but
15       may be used to help fund the normal operating expenses of the
16       county or district attorney's office.
17             [(d) It shall not be a defense to a prosecution under this section
18       that the check, draft or order upon which such prosecution is
19       based:
20             [(1) Was postdated, unless such check, draft or order was pre-
21       sented for payment prior to the postdated date; or
22             [(2) was given to a payee who had knowledge or had been in-
23       formed, when the payee accepted such check, draft or order, that
24       the maker did not have sufficient funds in the hands of the drawee
25       to pay such check, draft or order upon presentation, unless such
26       check, draft or order was presented for payment prior to the date
27       the maker informed the payee there would be sufficient funds.
28             [(e)  (1) Giving a worthless check is a severity level 7, nonper-
29       son felony if the check, draft or order is drawn for $25,000 or
30       more.
31             [(2) Giving a worthless check is a severity level 9, nonperson
32       felony if the check, draft or order is drawn for at least $500 but
33       less than $25,000.
34             [(3) Giving a worthless check is a class A nonperson misde-
35       meanor if the check, draft or order is drawn for less than $500.
36             [(4) Giving a worthless check, draft or order drawn for less
37       than $500 is a severity level 9, nonperson felony if committed by
38       a person who has, within five years immediately preceding com-
39       mission of the crime, been convicted of giving a worthless check
40       two or more times.]
41             Section  1. [2.] K.S.A. 1998 Supp. 21-4711 is hereby amended to read
42       as follows: 21-4711. In addition to the provisions of K.S.A. 21-4710 and
43       amendments thereto, the following shall apply in determining an of-

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  1       fender's criminal history classification as contained in the presumptive
  2       sentencing guidelines grid for nondrug crimes and the presumptive sen-
  3       tencing guidelines grid for drug crimes:
  4             (a) Every four prior adult convictions of a nonperson felony in
  5       the offender's criminal history, shall be rated as one adult convic-
  6       tion of a person felony for criminal history purposes. Every three
  7       prior adult convictions or juvenile adjudications of class A and class B
  8       person misdemeanors in the offender's criminal history, or any combi-
  9       nation thereof, shall be rated as one adult conviction or one juvenile
10       adjudication of a person felony for criminal history purposes. Every three
11       prior adult convictions or juvenile adjudications of assault as defined in
12       K.S.A. 21-3408 and amendments thereto occurring within a period of
13       commencing three years prior to the date of conviction for the current
14       crime of conviction shall be rated as one adult conviction or one juvenile
15       adjudication of a person felony for criminal history purposes.
16             (b) A conviction of subsection (a)(1) of K.S.A. 21-4204 and amend-
17       ments thereto, criminal possession of firearms by a person who is both
18       addicted to and an unlawful user of a controlled substance, subsection
19       (a)(4) of K.S.A. 21-4204 and amendments thereto, possession of a firearm
20       on school grounds or K.S.A. 21-4218 and amendments thereto, possession
21       of a firearm on the grounds or in the state capitol building, will be scored
22       as a select class B nonperson misdemeanor conviction or adjudication and
23       shall not be scored as a person misdemeanor for criminal history
24       purposes.
25             (c)  (1) If the current crime of conviction was committed before July
26       1, 1996, and is for subsection (b) of K.S.A. 21-3404 and amendments
27       thereto, involuntary manslaughter in the commission of K.S.A. 8-1567 and
28       amendments thereto driving under the influence, then, each prior adult
29       conviction or juvenile adjudication for K.S.A. 8-1567 and amendments
30       thereto shall count as one person felony for criminal history purposes.
31             (2) If the current crime of conviction was committed on or after July
32       1, 1996, and is for involuntary manslaughter while driving under the in-
33       fluence of alcohol and drugs, each prior adult conviction, diversion in lieu
34       of criminal prosecution or juvenile adjudication for an act described in
35       K.S.A. 8-1567 and amendments thereto shall count as one person felony
36       for criminal history purposes.
37             (d) Prior burglary adult convictions and juvenile adjudications will be
38       scored for criminal history purposes as follows:
39             (1) As a prior person felony if the prior conviction or adjudication
40       was classified as a burglary as described in subsection (a) of K.S.A. 21-
41       3715 and amendments thereto.
42             (2) As a prior nonperson felony if the prior conviction or adjudication
43       was classified as a burglary as described in subsection (b) or (c) of K.S.A.

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  1       21-3715 and amendments thereto.
  2             The facts required to classify prior burglary adult convictions and ju-
  3       venile adjudications must be established by the state by a preponderance
  4       of the evidence.
  5             (e) Out-of-state convictions and juvenile adjudications will be used in
  6       classifying the offender's criminal history. An out-of-state crime will be
  7       classified as either a felony or a misdemeanor according to the convicting
  8       jurisdiction. If a crime is a felony in another state, it will be counted as a
  9       felony in Kansas. The state of Kansas shall classify the crime as person or
10       nonperson. In designating a crime as person or nonperson comparable
11       offenses shall be referred to. If the state of Kansas does not have a com-
12       parable offense, the out-of-state conviction shall be classified as a non-
13       person crime. Convictions or adjudications occurring within the federal
14       system, other state systems, the District of Columbia, foreign, tribal or
15       military courts are considered out-of-state convictions or adjudications.
16       The facts required to classify out-of-state adult convictions and juvenile
17       adjudications must be established by the state by a preponderance of the
18       evidence.
19             (f) Except as provided in subsections (4), (5) and (6) of K.S.A. 21-
20       4705 21-4710 and amendments thereto, juvenile adjudications will be
21       applied in the same manner as adult convictions. Out-of-state juvenile
22       adjudications will be treated as juvenile adjudications in Kansas.
23             (g) A prior felony conviction of an attempt, a conspiracy or a solici-
24       tation as provided in K.S.A. 21-3301, 21-3302 or 21-3303 and amend-
25       ments thereto, to commit a crime shall be treated as a person or non-
26       person crime in accordance with the designation assigned to the
27       underlying crime.
28             (h) Drug crimes are designated as nonperson crimes for criminal his-
29       tory scoring purposes.
30        Sec.  2. [3.] K.S.A. 1998 Supp. 21-4310 is hereby amended to
31       read as follows: 21-4310. (a) Cruelty to animals is:
32             (1) Intentionally killing, injuring, maiming, torturing, burning or
33       mutilating or causing serious physical injury to any animal;
34             (2) abandoning or leaving any animal in any place without
35       making provisions for its proper care;
36             (3) having physical custody of any animal and failing to provide
37       such food, potable water, protection from the elements, opportu-
38       nity for exercise and other care as is needed for the health or well-
39       being of such kind of animal; or
40             (4) intentionally using a wire, pole, stick, rope or any other
41       object to cause an equine to lose its balance or fall, for the purpose
42       of sport or entertainment.; or
43             (5) intentionally causing any physical injury other than serious phys-

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  1       ical injury to any animal.
  2             (b) The provisions of this section shall not apply to:
  3             (1) Normal or accepted veterinary practices;
  4             (2) bona fide experiments carried on by commonly recognized
  5       research facilities;
  6             (3) killing, attempting to kill, trapping, catching or taking of
  7       any animal in accordance with the provisions of chapter 32 or
  8       chapter 47 of the Kansas Statutes Annotated;
  9             (4) rodeo practices accepted by the rodeo cowboys'
10       association;
11             (5) the humane killing of an animal which is diseased or disa-
12       bled beyond recovery for any useful purpose, or the humane kill-
13       ing of animals for population control, by the owner thereof or the
14       agent of such owner residing outside of a city or the owner thereof
15       within a city if no animal shelter, pound or licensed veterinarian
16       is within the city, or by a licensed veterinarian at the request of
17       the owner thereof, or by any officer or agent of an incorporated
18       humane society, the operator of an animal shelter or pound, a local
19       or state health officer or a licensed veterinarian three business
20       days following the receipt of any such animal at such society, shel-
21       ter or pound;
22             (6) with respect to farm animals, normal or accepted practices
23       of animal husbandry;
24             (7) the killing of any animal by any person at any time which
25       may be found outside of the owned or rented property of the
26       owner or custodian of such animal and which is found injuring or
27       posing a threat to any person, farm animal or property;
28             (8) an animal control officer trained by a licensed veterinarian
29       in the use of a tranquilizer gun, using such gun with the appro-
30       priate dosage for the size of the animal, when such animal is vicious
31       or could not be captured after reasonable attempts using other
32       methods; or
33             (9) laying an equine down for medical or identification
34       purposes.
35             (c) As used in this section, "equine" means a horse, pony, mule,
36       jenny, donkey or hinny.
37             (d)  (1) Cruelty to animals as described in subsection (a)(1) is a non-
38       person felony. Upon conviction of cruelty to animals as described in sub-
39       section (a)(1), a person shall be sentenced to not less than 30 days nor
40       more than one year's imprisonment and fined not less than $100.
41             (2) Cruelty to animals as described in subsections (a)(2), (a)(3),
42       (a)(4) and (a)(5) is a class A nonperson misdemeanor.
43             Sec.  3. [4.] K.S.A. 1998 Supp. 21-4704 is hereby amended to

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  1       read as follows: 21-4704. (a) For purposes of sentencing, the fol-
  2       lowing sentencing guidelines grid for nondrug crimes shall be ap-
  3       plied in felony cases for crimes committed on or after July 1, 1993:

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  1      

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  1             (b) The provisions of this section shall be applicable to the sen-
  2       tencing guidelines grid for nondrug crimes. Sentences expressed
  3       in such grid represent months of imprisonment.
  4             (c) The sentencing guidelines grid is a two-dimensional crime
  5       severity and criminal history classification tool. The grid's vertical
  6       axis is the crime severity scale which classifies current crimes of
  7       conviction. The grid's horizontal axis is the criminal history scale
  8       which classifies criminal histories.
  9             (d) The sentencing guidelines grid for nondrug crimes as pro-
10       vided in this section defines presumptive punishments for felony
11       convictions, subject to judicial discretion to deviate for substantial
12       and compelling reasons and impose a different sentence in rec-
13       ognition of aggravating and mitigating factors as provided in this
14       act. The appropriate punishment for a felony conviction should
15       depend on the severity of the crime of conviction when compared
16       to all other crimes and the offender's criminal history.
17             (e)  (1) The sentencing court has discretion to sentence at any
18       place within the sentencing range. The sentencing judge shall se-
19       lect the center of the range in the usual case and reserve the upper
20       and lower limits for aggravating and mitigating factors insufficient
21       to warrant a departure.
22             (2) In presumptive imprisonment cases, the sentencing court
23       shall pronounce the complete sentence which shall include the
24       prison sentence, the maximum potential reduction to such sen-
25       tence as a result of good time and the period of postrelease su-
26       pervision at the sentencing hearing. Failure to pronounce the pe-
27       riod of postrelease supervision shall not negate the existence of
28       such period of postrelease supervision.
29             (3) In presumptive nonprison cases, the sentencing court shall
30       pronounce the prison sentence as well as the duration of the non-
31       prison sanction at the sentencing hearing.
32             (f) Each grid block states the presumptive sentencing range for
33       an offender whose crime of conviction and criminal history place
34       such offender in that grid block. If an offense is classified in a grid
35       block below the dispositional line, the presumptive disposition
36       shall be nonimprisonment. If an offense is classified in a grid block
37       above the dispositional line, the presumptive disposition shall be
38       imprisonment. If an offense is classified in grid blocks 5-H, 5-I or
39       6-G, the court may impose an optional nonprison sentence upon
40       making the following findings on the record:
41             (1) An appropriate treatment program exists which is likely to
42       be more effective than the presumptive prison term in reducing
43       the risk of offender recidivism; and

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  1             (2) the recommended treatment program is available and the
  2       offender can be admitted to such program within a reasonable
  3       period of time; or
  4             (3) the nonprison sanction will serve community safety inter-
  5       ests by promoting offender reformation.
  6             Any decision made by the court regarding the imposition of an
  7       optional nonprison sentence if the offense is classified in grid
  8       blocks 5-H, 5-I or 6-G shall not be considered a departure and
  9       shall not be subject to appeal.
10             (g) The sentence for the violation of K.S.A. 21-3411, aggra-
11       vated assault against a law enforcement officer or K.S.A. 21-3415,
12       aggravated battery against a law enforcement officer and amend-
13       ments thereto which places the defendant's sentence in grid block
14       6-H or 6-I shall be presumed imprisonment. The court may impose
15       an optional nonprison sentence upon making a finding on the rec-
16       ord that the nonprison sanction will serve community safety inter-
17       ests by promoting offender reformation. Any decision made by the
18       court regarding the imposition of the optional nonprison sentence,
19       if the offense is classified in grid block 6-H or 6-I, shall not be
20       considered departure and shall not be subject to appeal.
21             (h) When a firearm is used to commit any person felony, the
22       offender's sentence shall be presumed imprisonment. The court
23       may impose an optional nonprison sentence upon making a finding
24       on the record that the nonprison sanction will serve community
25       safety interests by promoting offender reformation. Any decision
26       made by the court regarding the imposition of the optional non-
27       prison sentence shall not be considered a departure and shall not
28       be subject to appeal.
29             (i) The sentence for the violation of the felony provision of
30       K.S.A. 8-1567 and, subsection (b) of K.S.A. 21-3705 and subsection
31       (a)(1) of K.S.A. 21-4310, and amendments thereto shall be as pro-
32       vided by the specific mandatory sentencing requirements of that
33       section and shall not be subject to the provisions of this section or
34       K.S.A. 21-4707 and amendments thereto. Notwithstanding the pro-
35       visions of any other section, the term of imprisonment imposed for
36       the violation of the felony provision of K.S.A. 8-1567 and, subsec-
37       tion (b) of K.S.A. 21-3705 and subsection (a)(1) of K.S.A. 21-4310, and
38       amendments thereto shall not be served in a state facility in the
39       custody of the secretary of corrections.
40             (j) The sentence for any persistent sex offender whose current
41       convicted crime carries a presumptive term of imprisonment shall
42       be double the maximum duration of the presumptive imprison-
43       ment term. The sentence for any persistent sex offender whose

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  1       current conviction carries a presumptive nonprison term shall be
  2       presumed imprisonment and shall be double the maximum dura-
  3       tion of the presumptive imprisonment term. Except as otherwise
  4       provided in this subsection, as used in this subsection, "persistent
  5       sex offender" means a person who: (1) Has been convicted in this
  6       state of a sexually violent crime, as defined in K.S.A. 22-3717 and
  7       amendments thereto; and (2) at the time of the conviction under
  8       subsection (1) has at least one conviction for a sexually violent
  9       crime, as defined in K.S.A. 22-3717 and amendments thereto in
10       this state or comparable felony under the laws of another state,
11       the federal government or a foreign government. The provisions
12       of this subsection shall not apply to any person whose current con-
13       victed crime is a severity level 1 or 2 felony.
14             (k) If it is shown at sentencing that the offender committed any
15       felony violation for the benefit of, at the direction of, or in asso-
16       ciation with any criminal street gang, with the specific intent to
17       promote, further or assist in any criminal conduct by gang mem-
18       bers, the offender's sentence shall be presumed imprisonment.
19       Any decision made by the court regarding the imposition of the
20       optional nonprison sentence shall not be considered a departure
21       and shall not be subject to appeal. As used in this subsection, "crim-
22       inal street gang" means any organization, association or group of
23       three or more persons, whether formal or informal, having as one
24       of its primary activities the commission of one or more person
25       felonies or felony violations of the uniform controlled substances
26       act, K.S.A. 65-4101 et seq., and amendments thereto, which has a
27       common name or common identifying sign or symbol, whose mem-
28       bers, individually or collectively engage in or have engaged in the
29       commission, attempted commission, conspiracy to commit or so-
30       licitation of two or more person felonies or felony violations of the
31       uniform controlled substances act, K.S.A. 65-4101 et seq., and
32       amendments thereto, or any substantially similar offense from an-
33       other jurisdiction.
34        Sec.  2. 4. [5.] K.S.A. 1998 Supp. [21-3707,] 21-4310, 21-4704 and
35       21-4711 is are hereby repealed.
36        Sec.  3. 5. [6.] This act shall take effect and be in force from and after
37       its publication in the statute book.