CHAPTER 164
SENATE BILL No. 149
(Amends Chapters 54 and 57)
An Act concerning crimes, criminal procedure and punishment;
relating to sentencing;
dispositional alternatives; capital murder, execution of death
sentences; prescribing cer-
tain penalties; amending K.S.A. 21-3435, 21-3520, 21-3705, 21-3731,
21-4605, 21-4635,
21-4638, 22-4001, 22-4003, 22-4006, 22-4009, as amended by section
35 of 1999 House
Bill No. 2206, 22-4011, 22-4012, 22-4013, 22-4014 and 22-4903 and
K.S.A. 1998 Supp.
8-262, 8-287, 21-2511, 21-3204, 21-3402, 21-3413, 21-3810, 21-4201,
21-4603d, 21-
4704, 21-4706, 21-4711, 22-3717, 22-4902, 22-4904, 22-4905,
22-4906, 22-4908 and 75-
5217, as amended by section 1 of 1999 House Bill No. 2137, and
repealing the existing
sections; also repealing K.S.A. 22-4015.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 1998 Supp. 8-262
is hereby amended to read as
follows: 8-262. (a) (1) Any person who drives a motor vehicle on
any
highway of this state at a time when such person's privilege so to
do is
canceled, suspended or revoked shall be guilty of a: (A) Class B
nonperson
misdemeanor on the first conviction; and (B) class A
nonperson misde-
meanor on the second conviction; and (C) severity level 9,
nonperson
felony on a third or subsequent conviction.
(2) No person shall be convicted under
this section if such person
was entitled at the time of arrest under K.S.A. 8-257, and
amendments
thereto, to the return of such person's driver's license or was, at
the time
of arrest, eligible under K.S.A. 8-256, and amendments thereto, to
apply
for a new license to operate a motor vehicle.
(3) Except as otherwise provided by
subsection (a)(4), every person
convicted under this section shall be sentenced to at least five
days' im-
prisonment and fined at least $100 and upon a second or
subsequent
conviction shall not be eligible for parole until completion of
five days'
imprisonment.
(4) If a person (A) is convicted of a
violation of this section, commit-
ted while the person's privilege to drive was suspended or revoked
for a
violation of K.S.A. 8-1567, and amendments thereto, or any
ordinance of
any city or a law of another state, which ordinance or law
prohibits the
acts prohibited by that statute, and (B) is or has been also
convicted of a
violation of K.S.A. 8-1567, and amendments thereto, or of a
municipal
ordinance or law of another state, which ordinance or law prohibits
the
acts prohibited by that statute, committed while the person's
privilege to
drive was so suspended or revoked, the person shall not be eligible
for
suspension of sentence, probation or parole until the person has
served
at least 90 days' imprisonment, and any fine imposed on such person
shall
be in addition to such a term of imprisonment.
(b) The division, upon receiving a record
of the conviction of any
person under this section, or any ordinance of any city or a law of
another
state which is in substantial conformity with this section, upon a
charge
of driving a vehicle while the license of such person is revoked or
sus-
pended, shall extend the period of such suspension or revocation
for an
additional period of 90 days.
(c) In addition to extension of the
period of suspension or revocation
under subsection (b), if the conviction is for a violation
committed after
June 30, 1994, and before July 1, 1996, and committed while the
person's
driving privileges are suspended pursuant to K.S.A. 8-1014 and
amend-
ments thereto, the division, upon completion of the extended period
of
suspension, shall restrict the person's driving privileges for an
additional
120 days to driving only a motor vehicle equipped with an ignition
inter-
lock device, as defined by K.S.A. 8-1013 and amendments thereto,
ap-
proved by the division and obtained, installed and maintained at
the per-
son's expense.
On or before February 1, 1996, the division
shall report to the legis-
lature regarding the use of the provisions of this subsection and
making
recommendations concerning continuation or modification of such
pro-
visions.
(d) For the purposes of determining
whether a conviction is a first,
second, third or subsequent conviction in
sentencing under this section,
``conviction'' includes a conviction of a violation of any
ordinance of any
city or a law of another state which is in substantial conformity
with this
section.
Sec. 2. K.S.A. 1998 Supp. 8-287 is
hereby amended to read as fol-
lows: 8-287. Operation of a motor vehicle in this state while one's
driving
privileges are revoked pursuant to K.S.A. 8-286 and amendments
thereto
is a severity level 9, nonperson felony class A
nonperson misdemeanor.
Sec. 3. K.S.A. 1998 Supp. 21-2511
is hereby amended to read as
follows: 21-2511. (a) Any person convicted as an adult or
adjudicated as
a juvenile offender because of the commission of an
unlawful sexual act
as defined in subsection (4) of K.S.A. 21-3501, and
amendments thereto,
or convicted as an adult or adjudicated as a juvenile
offender because of
the commission of a violation of K.S.A. 21-3401, 21-3402,
21-3510, 21-
3511, 21-3516, 21-3602, 21-3603 or 21-3609, and amendments
thereto,
including an attempt, as defined in K.S.A. 21-3301, and
amendments
thereto, conspiracy, as defined in K.S.A. 21-3302, and
amendments
thereto, or criminal solicitation, as defined in K.S.A.
21-3303, and amend-
ments thereto, any offense which requires such
person to register as an
offender pursuant to the Kansas offender registration act,
K.S.A. 22-4901
et seq., or a violation of subsection (a)(1) of K.S.A. 21-3505,
21-3508, 21-
3602 or 21-3609 and amendments thereto, including an attempt,
con-
spiracy or criminal solicitation, as defined in K.S.A. 21-3301,
21-3302 or
21-3303 and amendments thereto, of any such offenses
provided in this
subsection regardless of the sentence imposed, shall be required to
sub-
mit specimens of blood and saliva to the Kansas bureau of
investigation
in accordance with the provisions of this act, if such person
is:
(1) Convicted as an adult or adjudicated
as a juvenile offender be-
cause of the commission of a crime specified in subsection (a) on
or after
the effective date of this act;
(2) ordered institutionalized as a result
of being convicted as an adult
or adjudicated as a juvenile offender because of the commission of
a crime
specified in subsection (a) on or after the effective date of this
act; or
(3) convicted as an adult or adjudicated
as a juvenile offender because
of the commission of a crime specified in this subsection before
the ef-
fective date of this act and is presently confined as a result of
such con-
viction or adjudication in any state correctional facility or
county jail or is
presently serving a sentence under K.S.A. 21-4603, 22-3717 or
38-1663,
and amendments thereto.
(b) Notwithstanding any other provision
of law, the Kansas bureau of
investigation is authorized to obtain fingerprints and other
identifiers for
all persons, whether juveniles or adults, covered by this act.
(c) Any person required by paragraphs
(a)(1) and (a)(2) to provide
specimens of blood and saliva shall be ordered by the court to have
spec-
imens of blood and saliva collected within 10 days after sentencing
or
adjudication:
(1) If placed directly on probation, that
person must provide speci-
mens of blood and saliva, at a collection site designated by the
Kansas
bureau of investigation. Failure to cooperate with the collection
of the
specimens and any deliberate act by that person intended to
impede,
delay or stop the collection of the specimens shall be punishable
as con-
tempt of court and constitute grounds to revoke probation;
(2) if sentenced to the secretary of
corrections, the specimens of
blood and saliva will be obtained immediately upon arrival at the
Topeka
correctional facility; or
(3) if a juvenile offender is placed in
the custody of the commissioner
of juvenile justice, in a youth residential facility or in a
juvenile correc-
tional facility, the specimens of blood and saliva will be obtained
imme-
diately upon arrival.
(d) Any person required by paragraph
(a)(3) to provide specimens of
blood and saliva shall be required to provide such samples prior to
final
discharge or conditional release at a collection site designated by
the
Kansas bureau of investigation.
(e) The Kansas bureau of investigation
shall provide all specimen vi-
als, mailing tubes, labels and instructions necessary for the
collection of
blood and saliva samples. The collection of samples shall be
performed
in a medically approved manner. No person authorized by this
section to
withdraw blood and collect saliva, and no person assisting in the
collection
of these samples shall be liable in any civil or criminal action
when the
act is performed in a reasonable manner according to generally
accepted
medical practices. The withdrawal of blood for purposes of this act
may
be performed only by: (1) A person licensed to practice medicine
and
surgery or a person acting under the supervision of any such
licensed
person; (2) a registered nurse or a licensed practical nurse; or
(3) any
qualified medical technician including, but not limited to, an
emergency
medical technician-intermediate or mobile intensive care
technician, as
those terms are defined in K.S.A. 65-6112, and amendments thereto,
or
a phlebotomist. The samples shall thereafter be forwarded to the
Kansas
bureau of investigation for analysis and categorizing into genetic
marker
groupings.
(f) The genetic marker groupings shall be
maintained by the Kansas
bureau of investigation. The Kansas bureau of investigation shall
establish,
implement and maintain a statewide automated personal
identification
system capable of, but not limited to, classifying, matching and
storing
analysis of DNA (deoxyribonucleic acid) and other biological
molecules.
The genetic marker grouping analysis information and identification
sys-
tem as established by this act shall be compatible with the
procedures
specified by the federal bureau of investigation's combined DNA
index
system (CODIS). The Kansas bureau of investigation may participate
in
the CODIS program by sharing data and utilizing compatible test
pro-
cedures, laboratory equipment, supplies and computer software.
(g) The genetic marker grouping analysis
information obtained pur-
suant to this act shall be confidential and shall be released only
to law
enforcement officers of the United States, of other states or
territories,
of the insular possessions of the United States, or foreign
countries duly
authorized to receive the same, to all law enforcement officers of
the state
of Kansas and to all prosecutor's agencies.
(h) The Kansas bureau of investigation
shall be the state central re-
pository for all genetic marker grouping analysis information
obtained
pursuant to this act. The Kansas bureau of investigation may
promulgate
rules and regulations for the form and manner of the collection of
blood
and saliva samples and other procedures for the operation of this
act. The
provisions of the Kansas administrative procedure act shall apply
to all
actions taken under the rules and regulations so promulgated.
Sec. 4. K.S.A. 1998 Supp. 21-3204
is hereby amended to read as
follows: 21-3204. A person may be guilty of an offense without
having
criminal intent if the crime is: (1) A misdemeanor,
cigarette or tobacco
infraction or traffic infraction and the statute defining the
offense clearly
indicates a legislative purpose to impose absolute liability for
the conduct
described; or (2) a violation of K.S.A. 8-1567 or 8-1567a and
amendments
thereto.
Sec. 5. K.S.A. 1998 Supp. 21-3402
is hereby amended to read as
follows: 21-3402. Murder in the second degree is the killing of a
human
being committed:
(a) Intentionally; or
(b) unintentionally but recklessly under
circumstances manifesting
extreme indifference to the value of human life.
Murder in the second degree as described in
subsection (a) is an off-
grid a severity level 1, person felony.
Murder in the second degree as
described in subsection (b) is a severity level 2, person
felony.
Sec. 6. K.S.A. 1998 Supp. 21-3413
is hereby amended to read as
follows: 21-3413. Battery against a law enforcement officer is a
battery,
as defined in K.S.A. 21-3412 and amendments thereto:
(a) (1) Committed against a
uniformed or properly identified state,
county or city law enforcement officer other than a state
correctional
officer or employee, a city or county correctional officer or
employee, a
juvenile correctional facility officer or employee or a juvenile
detention
facility officer or employee, while such officer is engaged in the
perform-
ance of such officer's duty;
(2) committed against a state
correctional officer or employee by a
person in custody of the secretary of corrections, while such
officer or
employee is engaged in the performance of such officer's or
employee's
duty;
(3) committed against a juvenile
correctional facility officer or em-
ployee by a person confined in such juvenile correctional facility,
while
such officer or employee is engaged in the performance of such
officer's
or employee's duty;
(4) committed against a juvenile
detention facility officer or employee
by a person confined in such juvenile detention facility, while
such officer
or employee is engaged in the performance of such officer's or
employee's
duty; or
(5) committed against a city or county
correctional officer or em-
ployee by a person confined in a city holding facility or county
jail facility,
while such officer or employee is engaged in the performance of
such
officer's or employee's duty.
(b) Battery against a law enforcement
officer as defined in subsection
(a)(1) is a class A person misdemeanor. Battery against a law
enforcement
officer as defined in subsection (a)(2), (a)(3), (a)(4) or (a)(5)
is a severity
level 6 5, person felony.
(c) As used in this section:
(1) ``Correctional institution'' means
any institution or facility under
the supervision and control of the secretary of corrections.
(2) ``State correctional officer or
employee'' means any officer or em-
ployee of the Kansas department of corrections or any independent
con-
tractor, or any employee of such contractor, working at a
correctional
institution.
(3) ``Juvenile correctional facility
officer or employee'' means any of-
ficer or employee of the juvenile justice authority or any
independent
contractor, or any employee of such contractor, working at a
juvenile
correctional facility, as defined in K.S.A. 38-1602 and
amendments
thereto.
(4) ``Juvenile detention facility officer
or employee'' means any officer
or employee of a juvenile detention facility as defined in K.S.A.
38-1602
and amendments thereto.
(5) ``City or county correctional officer
or employee'' means any cor-
rectional officer or employee of the city or county or any
independent
contractor, or any employee of such contractor, working at a city
holding
facility or county jail facility.
Sec. 7. K.S.A. 21-3435 is hereby
amended to read as follows: 21-
3435. (a) It is unlawful for an individual who knows oneself to be
infected
with a life threatening communicable disease knowingly:
(1) To engage in sexual intercourse or
sodomy with another individual
with the intent to expose that individual to that life threatening
commu-
nicable disease;
(2) to sell or donate one's own blood,
blood products, semen, tissue,
organs or other body fluids with the intent to expose the recipient
to a
life threatening communicable disease;
(3) to share with another individual a
hypodermic needle, syringe, or
both, for the introduction of drugs or any other substance into, or
for the
withdrawal of blood or body fluids from, the other individual's
body with
the intent to expose another person to a life threatening
communicable
disease.
(b) As used in this section, the term
``sexual intercourse'' shall not
include penetration by any object other than the male sex organ;
the term
``sodomy'' shall not include the penetration of the anal opening by
any
object other than the male sex organ.
(c) Violation of this section is a
class A person misdemeanor severity
level 7, person felony.
Sec. 8. K.S.A. 21-3520 is hereby
amended to read as follows: 21-
3520. (a) Unlawful sexual relations is engaging in consensual
sexual in-
tercourse, lewd fondling or touching, or sodomy with a
person who is not
married to the offender if:
(1) The offender is an employee of the
department of corrections or
the employee of a contractor who is under contract to provide
services in
a correctional institution and the person with whom the offender is
en-
gaging in consensual sexual intercourse, lewd fondling or
touching, or
sodomy is an inmate; or
(2) the offender is a parole officer and
the person with whom the
offender is engaging in consensual sexual intercourse, lewd
fondling or
touching, or sodomy is an inmate who has been released on
parole or
conditional release or postrelease supervision under the direct
supervision
and control of the offender.; or
(3) the offender is a law enforcement
officer, an employee of a jail, or
the employee of a contractor who is under contract to provide
services in
a jail and the person with whom the offender is engaging in
consensual
sexual intercourse, lewd fondling or touching, or sodomy is a
person 16
years of age or older who is confined by lawful custody to such
jail; or
(4) the offender is a law enforcement
officer, an employee of a juvenile
detention facility or sanctions house, or the employee of a
contractor who
is under contract to provide services in such facility or
sanctions house
and the person with whom the offender is engaging in consensual
sexual
intercourse, lewd fondling or touching, or sodomy is a person 16
years of
age or older who is confined by lawful custody to such facility
or sanctions
house; or
(5) the offender is an employee of the
juvenile justice authority or the
employee of a contractor who is under contract to provide
services in a
juvenile correctional facility and the person with whom the
offender is
engaging in consensual sexual intercourse, lewd fondling or
touching, or
sodomy is a person 16 years of age or older who is confined by
lawful
custody to such facility; or
(6) the offender is an employee of the
juvenile justice authority or the
employee of a contractor who is under contract to provide direct
super-
vision and offender control services to the juvenile justice
authority and
the person with whom the offender is engaging in consensual
sexual in-
tercourse, lewd fondling or touching, or sodomy is 16 years of
age or older
and (A) released on conditional release from a juvenile
correctional facility
under the direct supervision and control of the offender or (B)
placed in
the custody of the juvenile justice authority under the direct
supervision
and control of the offender.
(b) For purposes of this act:
(1) ``Correctional institution'' means
the same as prescribed by K.S.A.
75-5202, and amendments thereto;
(2) ``inmate'' means the same as
prescribed by K.S.A. 75-5202, and
amendments thereto;
(3) ``parole officer'' means the same as
prescribed by K.S.A. 75-5202,
and amendments thereto; and
(4) ``postrelease supervision'' means the
same as prescribed in the
Kansas sentencing guidelines act in K.S.A.
21-4703.;
(5) ``juvenile detention facility''
means the same as prescribed by
K.S.A. 38-1602, and amendments thereto;
(6) ``juvenile correctional facility''
means the same as prescribed by
K.S.A. 38-1602, and amendments thereto;
(7) ``sanctions house'' means the same
as prescribed by K.S.A. 38-
1602, and amendments thereto.
(c) Unlawful sexual relations is a
severity level 10 person felony.
Sec. 9. K.S.A. 21-3705 is hereby
amended to read as follows: 21-
3705. (a) Criminal deprivation of property is obtaining or exerting
unau-
thorized control over property, with intent to deprive the owner of
the
temporary use thereof, without the owner's consent but not with
the
intent of depriving the owner permanently of the possession, use or
ben-
efit of such owner's property.
(b) Criminal deprivation of property that
is a motor vehicle, as de-
fined in K.S.A. 8-1437, and amendments thereto, is a class A
nonperson
felony misdemeanor. Upon a first conviction
of this subsection, a person
shall be sentenced to not less than 30 days nor more than one
year's
imprisonment and fined not less than $100. Upon a second or
subsequent
conviction of this subsection, a person shall be sentenced to not
less than
60 days nor more than one year's imprisonment and fined not less
than
$200. The person convicted shall not be eligible for release on
probation,
suspension or reduction of sentence or parole until the person has
served
the minimum mandatory sentence as provided herein. The
mandatory
provisions of this subsection shall not apply to any person where
such
application would result in a manifest injustice.
(c) Criminal deprivation of property
other than a motor vehicle, as
defined in K.S.A. 8-1437, and amendments thereto, is a class A
nonperson
misdemeanor. Upon a second or subsequent conviction of this
subsection,
a person shall be sentenced to not less than 30 days imprisonment
and
fined not less than $100, except that the provisions of this
subsection
relating to a second or subsequent conviction shall not apply to
any person
where such application would result in a manifest injustice.
Sec. 10. K.S.A. 21-3731 is hereby
amended to read as follows: 21-
3731. (a) Criminal use of explosives is the possession, manufacture
or
transportation of commercial explosives; chemical compounds that
form
explosives; incendiary or explosive material, liquid or solid;
detonators;
blasting caps; military explosive fuse assemblies; squibs;
or electric match
or functional improvised fuse assemblies; or any completed
explosive de-
vices commonly known as pipe bombs or molotov cocktails. For
purposes
of this section, explosives shall not include class ``c''
fireworks, legally
obtained and transferred commercial explosives by licensed
individuals
and ammunition and commercially available loading powders and
prod-
ucts used as ammunition.
(b) (1) Criminal use of explosives
as defined in subsection (a) is a
severity level 8, person felony.
(2) Criminal use of explosives as defined
in subsection (a) if: (A) The
possession, manufacture or transportation is intended to be used to
com-
mit a crime or is delivered to another with knowledge that such
other
intends to use such substance to commit a crime; (B) a public
safety
officer is placed at risk to defuse such explosive; or (C) the
explosive is
introduced into a building in which there is another human being,
is a
severity level 6, person felony.
Sec. 11. K.S.A. 1998 Supp. 21-3810
is hereby amended to read as
follows: 21-3810. Aggravated escape from custody is:
(a) Escaping while held in lawful custody
(1) upon a charge or con-
viction of a felony or (2) upon a charge or adjudication as
a juvenile
offender as defined in K.S.A. 38-1602, and amendments thereto,
where
the act, if committed by an adult, would constitute a
felony, or (3) prior
to or upon a finding of probable cause for evaluation as a sexually
violent
predator as provided in K.S.A. 59-29a05 and amendments
thereto, or (4)
upon commitment to a treatment facility as a sexually violent
predator as
provided pursuant to K.S.A. 59-29a01 et seq. and amendments
thereto
or (5) upon a commitment to the state security hospital as
provided in
K.S.A. 22-3428 and amendments thereto based on a finding that the
per-
son committed an act constituting a felony; or
(6) by a person 18 years of
age or over who is being held in lawful custody on
an adjudication of a
felony or (7) upon incarceration at a state correctional
institution as de-
fined in K.S.A. 75-5207 and amendments thereto, while in the
custody of
the secretary of corrections; or
(b) Escaping effected or facilitated
by the use of violence or the threat
of violence against any person while held in lawful
custody (1) on a charge
or conviction of any crime or (2) on a charge or
adjudication as a juvenile
offender as defined in K.S.A. 38-1602, and amendments thereto,
where
the act, if committed by an adult, would constitute a
felony, or (3) prior
to or upon a finding of probable cause for evaluation as a sexually
violent
predator as provided in K.S.A. 59-29a05 and amendments
thereto, or (4)
upon commitment to a treatment facility as a sexually violent
predator as
provided in K.S.A. 59-29a01 et seq. and amendments thereto or
(5) upon
a commitment to the state security hospital as provided in K.S.A.
22-3428
and amendments thereto based on a finding that the person
committed
an act constituting any crime or (6) by a person 18 years of
age or over
who is being held in lawful custody or on a
charge or adjudication of a
misdemeanor or felony when such escape is effected or
facilitated by the
use of violence or the threat of violence against any
person or (7) upon
incarceration at a state correctional institution as defined in
K.S.A. 75-
5207 and amendments thereto, while in the custody of the
secretary of
corrections.
(c) (1) Aggravated escape from
custody as described in subsection
(a)(1), (a)(3), (a)(4), (a)(5) or (a)(6) is a severity level
8, nonperson felony.
(2) Aggravated escape from custody as
described in subsection (a)(2)
or (a)(7) is a severity level 5, nonperson felony.
(2)
(3) Aggravated escape from custody as described in
subsection
(b)(1), (b)(3), (b)(4), (b)(5) or (b)(6) is a severity level
6, person felony.
(4) Aggravated escape from custody as
described in subsection (b)(2)
or (b)(7) is a severity level 5, person felony.
Sec. 12. K.S.A. 1998 Supp. 21-4201
is hereby amended to read as
follows: 21-4201. (a) Criminal use of weapons is knowingly:
(1) Selling, manufacturing, purchasing,
possessing or carrying any
bludgeon, sandclub, metal knuckles or throwing star, or any knife,
com-
monly referred to as a switch-blade, which has a blade that opens
auto-
matically by hand pressure applied to a button, spring or other
device in
the handle of the knife, or any knife having a blade that opens or
falls or
is ejected into position by the force of gravity or by an outward,
downward
or centrifugal thrust or movement;
(2) carrying concealed on one's person,
or possessing with intent to
use the same unlawfully against another, a dagger, dirk, billy,
blackjack,
slung shot, dangerous knife, straight-edged razor, stiletto or any
other
dangerous or deadly weapon or instrument of like character, except
that
an ordinary pocket knife with no blade more than four inches in
length
shall not be construed to be a dangerous knife, or a dangerous or
deadly
weapon or instrument;
(3) carrying on one's person or in any
land, water or air vehicle, with
intent to use the same unlawfully, a tear gas or smoke bomb or
projector
or any object containing a noxious liquid, gas or substance;
(4) carrying any pistol, revolver or
other firearm concealed on one's
person except when on the person's land or in the person's abode or
fixed
place of business;
(5) setting a spring gun;
(6) possessing any device or attachment
of any kind designed, used
or intended for use in silencing the report of any firearm;
(7) selling, manufacturing, purchasing,
possessing or carrying a shot-
gun with a barrel less than 18 inches in length or any other
firearm de-
signed to discharge or capable of discharging automatically more
than
once by a single function of the trigger; or
(8) possessing, manufacturing, causing to
be manufactured, selling,
offering for sale, lending, purchasing or giving away any cartridge
which
can be fired by a handgun and which has a plastic-coated bullet
that has
a core of less than 60% lead by weight; or
(9) possessing or transporting
any incendiary or explosive material,
liquid, solid or mixture, equipped with a fuse, wick or any
other detonat-
ing device, commonly known as a molotov cocktail or a pipe
bomb.
(b) Subsections (a)(1), (2), (3), (4) and
(7) shall not apply to or affect
any of the following:
(1) Law enforcement officers, or any
person summoned by any such
officers to assist in making arrests or preserving the peace while
actually
engaged in assisting such officer;
(2) wardens, superintendents, directors,
security personnel and keep-
ers of prisons, penitentiaries, jails and other institutions for
the detention
of persons accused or convicted of crime, while acting within the
scope
of their authority;
(3) members of the armed services or
reserve forces of the United
States or the Kansas national guard while in the performance of
their
official duty; or
(4) manufacture of, transportation to, or
sale of weapons to a person
authorized under subsections (b)(1), (2) and (3) to possess such
weapons.
(c) Subsection (a)(4) shall not apply to
or affect the following:
(1) Watchmen, while actually engaged in
the performance of the du-
ties of their employment;
(2) licensed hunters or fishermen, while
engaged in hunting or fish-
ing;
(3) private detectives licensed by the
state to carry the firearm in-
volved, while actually engaged in the duties of their
employment;
(4) detectives or special agents
regularly employed by railroad com-
panies or other corporations to perform full-time security or
investigative
service, while actually engaged in the duties of their
employment;
(5) the state fire marshal, the state
fire marshal's deputies or any
member of a fire department authorized to carry a firearm pursuant
to
K.S.A. 31-157 and amendments thereto, while engaged in an
investigation
in which such fire marshal, deputy or member is authorized to carry
a
firearm pursuant to K.S.A. 31-157 and amendments thereto; or
(6) special deputy sheriffs described in
K.S.A. 1998 Supp. 19-827 who
have satisfactorily completed the basic course of instruction
required for
permanent appointment as a part-time law enforcement officer
under
K.S.A. 74-5607a and amendments thereto.
(d) Subsections (a)(1), (6) and (7) shall
not apply to any person who
sells, purchases, possesses or carries a firearm, device or
attachment
which has been rendered unserviceable by steel weld in the chamber
and
marriage weld of the barrel to the receiver and which has been
registered
in the national firearms registration and transfer record in
compliance
with 26 U.S.C. 5841 et seq. in the name of such person and,
if such person
transfers such firearm, device or attachment to another person, has
been
so registered in the transferee's name by the transferor.
(e) Subsection (a)(8) shall not apply to
a governmental laboratory or
solid plastic bullets.
(f) It shall be a defense that the
defendant is within an exemption.
(g) Violation of subsections (a)(1)
through (a)(5) or subsection (a)(9)
is a class A nonperson misdemeanor. Violation of subsection (a)(6),
(a)(7)
or (a)(8) is a severity level 9, nonperson felony.
(h) As used in this section, ``throwing
star'' means any instrument,
without handles, consisting of a metal plate having three or more
radiating
points with one or more sharp edges and designed in the shape of
a
polygon, trefoil, cross, star, diamond or other geometric shape,
manufac-
tured for use as a weapon for throwing.
Sec. 13. K.S.A. 1998 Supp. 21-4603d
is hereby amended to read as
follows: 21-4603d. (a) Whenever any person has been found guilty of
a
crime, the court may adjudge any of the following:
(1) Commit the defendant to the custody
of the secretary of correc-
tions if the current crime of conviction is a felony and the
sentence pre-
sumes imprisonment, or the sentence imposed is a dispositional
departure
to imprisonment; or, if confinement is for a misdemeanor, to jail
for the
term provided by law;
(2) impose the fine applicable to the
offense;
(3) release the defendant on probation if
the current crime of con-
viction and criminal history fall within a presumptive nonprison
category
or through a departure for substantial and compelling reasons
subject to
such conditions as the court may deem appropriate. In felony cases
except
for violations of K.S.A. 8-1567 and amendments thereto, the court
may
include confinement in a county jail not to exceed 30 days, which
need
not be served consecutively, as a condition of probation or
community
corrections placement;
(4) assign the defendant to a community
correctional services pro-
gram in presumptive nonprison cases or through a departure for
substan-
tial and compelling reasons subject to such conditions as the court
may
deem appropriate, including orders requiring full or partial
restitution;
(5) assign the defendant to a
conservation camp for a period not to
exceed six months as a condition of probation followed by a
six-month
period of follow-up through adult intensive supervision by a
community
correctional services program, if the offender successfully
completes the
conservation camp program. If the defendant was classified
in grid blocks
3-G, 3-H or 3-I of the sentencing guidelines grid for drug
crimes, the
court may impose a nonprison sanction on the condition that
the offender
complete the program at the Labette correctional
conservation camp or
a conservation camp established by the secretary of
corrections pursuant
to K.S.A. 75-52,127, and amendments thereto. Such a
placement decision
shall not be considered a departure and shall not be
subject to appeal;
(6) assign the defendant to a house
arrest program pursuant to K.S.A.
21-4603b and amendments thereto;
(7) order the defendant to attend and
satisfactorily complete an al-
cohol or drug education or training program as provided by
subsection
(3) of K.S.A. 21-4502 and amendments thereto;
(8) order the defendant to repay the
amount of any reward paid by
any crime stoppers chapter, individual, corporation or public
entity which
materially aided in the apprehension or conviction of the
defendant; repay
the amount of any costs and expenses incurred by any law
enforcement
agency in the apprehension of the defendant, if one of the current
crimes
of conviction of the defendant includes escape, as defined in
K.S.A. 21-
3809 and amendments thereto or aggravated escape, as defined in
K.S.A.
21-3810 and amendments thereto; or repay the amount of any
public
funds utilized by a law enforcement agency to purchase controlled
sub-
stances from the defendant during the investigation which leads to
the
defendant's conviction. Such repayment of the amount of any such
costs
and expenses incurred by a law enforcement agency or any public
funds
utilized by a law enforcement agency shall be deposited and
credited to
the same fund from which the public funds were credited to prior to
use
by the law enforcement agency;
(9) order the defendant to pay the
administrative fee authorized by
K.S.A. 1998 Supp. 22-4529 and amendments thereto, unless waived
by
the court;
(10) impose any appropriate combination
of (1), (2), (3), (4), (5), (6),
(7), (8) and (9); or
(11) suspend imposition of sentence in
misdemeanor cases.
In addition to or in lieu of any of the above,
the court shall order the
defendant to pay restitution, which shall include, but not be
limited to,
damage or loss caused by the defendant's crime, unless the court
finds
compelling circumstances which would render a plan of restitution
un-
workable. If the court finds a plan of restitution unworkable, the
court
shall state on the record in detail the reasons therefor.
If the court orders restitution, the
restitution shall be a judgment
against the defendant which may be collected by the court by
garnishment
or other execution as on judgments in civil cases. If, after 60
days from
the date restitution is ordered by the court, a defendant is found
to be in
noncompliance with the plan established by the court for payment
of
restitution, and the victim to whom restitution is ordered paid has
not
initiated proceedings in accordance with K.S.A. 60-4301 et seq.
and
amendments thereto, the court shall assign an agent procured by
the
attorney general pursuant to K.S.A. 75-719 and amendments thereto
to
collect the restitution on behalf of the victim. The administrative
judge
of each judicial district may assign such cases to an appropriate
division
of the court for the conduct of civil collection proceedings.
In addition to or in lieu of any of the above,
the court shall order the
defendant to submit to and complete an alcohol and drug evaluation,
and
pay a fee therefor, when required by subsection (4) of K.S.A.
21-4502
and amendments thereto.
In addition to any of the above, the court
shall order the defendant to
reimburse the county general fund for all or a part of the
expenditures
by the county to provide counsel and other defense services to the
de-
fendant. Any such reimbursement to the county shall be paid only
after
any order for restitution has been paid in full. In determining the
amount
and method of payment of such sum, the court shall take account of
the
financial resources of the defendant and the nature of the burden
that
payment of such sum will impose. A defendant who has been
required
to pay such sum and who is not willfully in default in the payment
thereof
may at any time petition the court which sentenced the defendant
to
waive payment of such sum or any unpaid portion thereof. If it
appears
to the satisfaction of the court that payment of the amount due
will im-
pose manifest hardship on the defendant or the defendant's
immediate
family, the court may waive payment of all or part of the amount
due or
modify the method of payment.
In imposing a fine the court may authorize the
payment thereof in
installments. In releasing a defendant on probation, the court
shall direct
that the defendant be under the supervision of a court services
officer. If
the court commits the defendant to the custody of the secretary of
cor-
rections or to jail, the court may specify in its order the amount
of res-
titution to be paid and the person to whom it shall be paid if
restitution
is later ordered as a condition of parole or conditional
release.
When a new felony is committed while the
offender is incarcerated
and serving a sentence for a felony or while the offender is on
probation,
assignment to a community correctional services program, parole,
con-
ditional release, or postrelease supervision for a felony, a new
sentence
shall be imposed pursuant to the consecutive sentencing
requirements of
K.S.A. 21-4608, and amendments thereto, and the court may
sentence
the offender to imprisonment for the new conviction, even when the
new
crime of conviction otherwise presumes a nonprison sentence. In
this
event, imposition of a prison sentence for the new crime does not
con-
stitute a departure. When a new felony is committed while the
offender
is on release for a felony pursuant to the provisions of article
28 of chapter
22 of the Kansas Statutes Annotated, a new sentence may be
imposed
pursuant to the consecutive sentencing requirements of K.S.A.
21-4608
and amendments thereto, and the court may sentence the offender
to
imprisonment for the new conviction, even when the new crime of
con-
viction otherwise presumes a nonprison sentence. In this event,
imposition
of a prison sentence for the new crime does not constitute a
departure.
Prior to imposing a dispositional departure
for a defendant whose of-
fense is classified in the presumptive nonprison grid block of
either sen-
tencing guideline grid, prior to sentencing a defendant to
incarceration
whose offense is classified in grid blocks 5-H, 5-I or 6-G of the
sentencing
guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G,
3-H,
3-I, 4-E or 4-F of the sentencing guidelines grid for drug crimes,
or prior
to revocation of a nonprison sanction of a defendant whose offense
is
classified in the presumptive nonprison grid block of either
sentencing
guideline grid or grid blocks 5-H, 5-I or 6-G of the sentencing
guidelines
grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, 3-I,
4-E or
4-F of the sentencing guidelines grid for drug crimes, the court
shall
consider placement of the defendant in the Labette correctional
conser-
vation camp, conservation camps established by the secretary of
correc-
tions pursuant to K.S.A. 75-52,127, and amendment thereto or a
com-
munity intermediate sanction center. Pursuant to this paragraph
the
defendant shall not be sentenced to imprisonment if space is
available in
a conservation camp or a community intermediate sanction center
and
the defendant meets all of the conservation camp's or a community
in-
termediate sanction center's placement criteria unless the court
states on
the record the reasons for not placing the defendant in a
conservation
camp or a community intermediate sanction center.
The court in committing a defendant to the
custody of the secretary of
corrections shall fix a term of confinement within the limits
provided by
law. In those cases where the law does not fix a term of
confinement for
the crime for which the defendant was convicted, the court shall
fix the
term of such confinement.
In addition to any of the above, the court
shall order the defendant to
reimburse the state general fund for all or a part of the
expenditures by
the state board of indigents' defense services to provide counsel
and other
defense services to the defendant. In determining the amount
and
method of payment of such sum, the court shall take account of
the
financial resources of the defendant and the nature of the burden
that
payment of such sum will impose. A defendant who has been
required
to pay such sum and who is not willfully in default in the payment
thereof
may at any time petition the court which sentenced the defendant
to
waive payment of such sum or any unpaid portion thereof. If it
appears
to the satisfaction of the court that payment of the amount due
will im-
pose manifest hardship on the defendant or the defendant's
immediate
family, the court may waive payment of all or part of the amount
due or
modify the method of payment. The amount of attorney fees to be
in-
cluded in the court order for reimbursement shall be the amount
claimed
by appointed counsel on the payment voucher for indigents' defense
serv-
ices or the amount prescribed by the board of indigents' defense
services
reimbursement tables as provided in K.S.A. 22-4522, and
amendments
thereto, whichever is less.
(b) Dispositions which do not involve
commitment to the custody of
the secretary of corrections shall not entail the loss by the
defendant of
any civil rights. Placement of offenders in a conservation camp
established
by the secretary of corrections pursuant to K.S.A. 75-52,127, and
amend-
ments thereto, as a nonimprisonment disposition shall not entail
the loss
by the defendant of any civil rights.
(c) This section shall not deprive the
court of any authority conferred
by any other Kansas statute to decree a forfeiture of property,
suspend
or cancel a license, remove a person from office, or impose any
other civil
penalty as a result of conviction of crime.
(d) An application for or acceptance of
probation or assignment to a
community correctional services program shall not constitute an
acqui-
escence in the judgment for purpose of appeal, and any convicted
person
may appeal from such conviction, as provided by law, without regard
to
whether such person has applied for probation, suspended sentence
or
assignment to a community correctional services program.
(e) The secretary of corrections is
authorized to make direct place-
ment to the Labette correctional conservation camp or a
conservation
camp established by the secretary pursuant to K.S.A. 75-52,127,
and
amendments thereto, of an inmate sentenced to the secretary's
custody
if the inmate: (1) Has been sentenced to the secretary for a
probation
revocation or, as a departure from the
presumptive nonimprisonment grid
block of either sentencing grid, or for an offense which is
classified in
grid blocks 5-H, 5-I, or 6-G of the sentencing guidelines grid
for nondrug
crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, 3-I, 4-E, or 4-F of
the sen-
tencing guidelines grid for drug crimes; and (2) otherwise
meets admis-
sion criteria of the camp. If the inmate successfully completes the
six-
month conservation camp program, the secretary of corrections
shall
report such completion to the sentencing court and the county or
district
attorney. The inmate shall then be assigned by the court to six
months of
follow-up supervision conducted by the appropriate community
correc-
tions services program. The court may also order that supervision
con-
tinue thereafter for the length of time authorized by K.S.A.
21-4611 and
amendments thereto.
(f) When it is provided by law that a
person shall be sentenced pur-
suant to K.S.A. 1993 Supp. 21-4628, prior to its repeal, the
provisions of
this section shall not apply.
Sec. 14. K.S.A. 21-4605 is hereby
amended to read as follows: 21-
4605. (a) (1) Upon request of the attorney for the state or
the counsel for
the defendant, The judge shall make available to
the attorney for the state
or counsel for the defendant the presentence report, any
report that may
be received from the Topeka correctional facility or the state
security
hospital and other diagnostic reports and shall allow the attorney
or coun-
sel a reasonable time to review the report before sentencing the
defend-
ant. Except as otherwise provided in this section, all
these reports shall
be part of the record but shall be sealed and opened only
on order of the
court.
(2) The court shall permit the attorney
for the state or the counsel
for the defendant, upon request, to copy and
retain any of the reports
under subsection (a)(1). Any reports copied and retained shall be
kept in
the records of the attorney for the state or the counsel for the
defendant
and shall not be disclosed to any unauthorized person
without permission
of the court. All costs of copying such reports
shall be paid by the office
of the attorney for the state or the counsel for the defendant
making the
request.
(b) If a defendant is committed
to the custody of the secretary of
corrections, all reports under subsection (a)(1) shall be
sent to the sec-
retary of corrections and, in accordance with K.S.A.
75-5220, and amend-
ments thereto, to the warden of the state correctional
institution to which
the defendant is conveyed.
(c) Nothing in this section shall
be construed as prohibiting the at-
torney for the defendant from disclosing the report of the
presentence
investigation, or other diagnostic reports, to the
defendant after receiving
court approval to do so.
(d) Notwithstanding subsections
(a), (b) and (c), the presentence re-
port, any report that may be received from the Topeka
correctional facility
or the state security hospital and other diagnostic
reports, shall be made
available upon request to the Kansas sentencing commission
for the pur-
pose of data collection and evaluation. The
presentence report shall be-
come part of the court record and shall be accessible to the
public, except
that the official version, the defendant's version, the victim's
statement,
any psychological reports and any drug and alcohol reports shall
be ac-
cessible only to the attorney for the state and the counsel for
the defendant,
the sentencing judge, the department of corrections and if
requested, the
Kansas sentencing commission. If the offender is committed to
the custody
of the secretary of corrections, the report shall be sent to the
secretary
and, in accordance with K.S.A. 75-5220 and amendments thereto,
to the
warden of the state correctional institution to which the
defendant is con-
veyed.
(e) (c) For
felony crimes committed on or after July 1, 1993, the
provisions of this section are not applicable to the presentence
investi-
gation report.
Sec. 15. K.S.A. 21-4635 is hereby
amended to read as follows: 21-
4635. (a) Except as provided in K.S.A. 21-4634 and amendments
thereto,
if a defendant is convicted of the crime of capital murder and a
sentence
of death is not imposed, or if a defendant is convicted of murder
in the
first degree based upon the finding of premeditated murder, the
court
shall determine whether the defendant shall be required to serve a
man-
datory term of imprisonment of 40 years or for crimes committed
on and
after July 1, 1999, a mandatory term of imprisonment of 50
years or
sentenced as otherwise provided by law.
(b) In order to make such determination,
the court may be presented
evidence concerning any matter that the court deems relevant to
the
question of sentence and shall include matters relating to any of
the ag-
gravating circumstances enumerated in K.S.A. 21-4636 and
amendments
thereto and any mitigating circumstances. Any such evidence
which the
court deems to have probative value may be received regardless of
its
admissibility under the rules of evidence, provided that the
defendant is
accorded a fair opportunity to rebut any hearsay statements. Only
such
evidence of aggravating circumstances as the state has made known
to
the defendant prior to the sentencing shall be admissible and no
evidence
secured in violation of the constitution of the United States or of
the state
of Kansas shall be admissible. No testimony by the defendant at the
time
of sentencing shall be admissible against the defendant at any
subsequent
criminal proceeding. At the conclusion of the evidentiary
presentation,
the court shall allow the parties a reasonable period of time in
which to
present oral argument.
(c) If the court finds that one or more
of the aggravating circum-
stances enumerated in K.S.A. 21-4636 and amendments thereto exist
and,
further, that the existence of such aggravating circumstances is
not out-
weighed by any mitigating circumstances which are found to exist,
the
defendant shall be sentenced pursuant to K.S.A. 21-4638 and
amend-
ments thereto; otherwise, the defendant shall be sentenced as
provided
by law. The court shall designate, in writing, the statutory
aggravating
circumstances which it found. The court may make the findings
required
by this subsection for the purpose of determining whether to
sentence a
defendant pursuant to K.S.A. 21-4638 and amendments thereto
notwith-
standing contrary findings made by the jury or court pursuant to
subsec-
tion (e) of K.S.A. 21-4624 and amendments thereto for the purpose
of
determining whether to sentence such defendant to death.
Sec. 16. K.S.A. 21-4638 is hereby
amended to read as follows: 21-
4638. When it is provided by law that a person shall be sentenced
pur-
suant to this section, such person shall be sentenced to
imprisonment for
life and shall not be eligible for probation or suspension,
modification or
reduction of sentence. Except as otherwise provided, in
addition, a person
sentenced pursuant to this section shall not be eligible for parole
prior to
serving 40 years' imprisonment, and such 40 years' imprisonment
shall
not be reduced by the application of good time credits. For
crimes com-
mitted on and after July 1, 1999, a person sentenced pursuant to
this
section shall not be eligible for parole prior to serving 50
years' impris-
onment, and such 50 years' imprisonment shall not be reduced by
the
application of good time credits. Upon sentencing a
defendant pursuant
to this section, the court shall commit the defendant to the
custody of
the secretary of corrections and the court shall state in the
sentencing
order of the judgment form or journal entry, whichever is delivered
with
the defendant to the correctional institution, that the defendant
has been
sentenced pursuant to K.S.A. 21-4638 and amendments
thereto.
Sec. 17. K.S.A. 1998 Supp. 21-4704
is hereby amended to read as
follows: 21-4704. (a) For purposes of sentencing, the following
sentencing
guidelines grid for nondrug crimes shall be applied in felony cases
for
crimes committed on or after July 1, 1993:
(b) The provisions of this section shall
be applicable to the sentencing
guidelines grid for nondrug crimes. Sentences expressed in such
grid
represent months of imprisonment.
(c) The sentencing guidelines grid is a
two-dimensional crime severity
and criminal history classification tool. The grid's vertical axis
is the crime
severity scale which classifies current crimes of conviction. The
grid's
horizontal axis is the criminal history scale which classifies
criminal his-
tories.
(d) The sentencing guidelines grid for
nondrug crimes as provided in
this section defines presumptive punishments for felony
convictions, sub-
ject to judicial discretion to deviate for substantial and
compelling reasons
and impose a different sentence in recognition of aggravating and
miti-
gating factors as provided in this act. The appropriate punishment
for a
felony conviction should depend on the severity of the crime of
conviction
when compared to all other crimes and the offender's criminal
history.
(e) (1) The sentencing court has
discretion to sentence at any place
within the sentencing range. The sentencing judge shall select the
center
of the range in the usual case and reserve the upper and lower
limits for
aggravating and mitigating factors insufficient to warrant a
departure.
(2) In presumptive imprisonment cases,
the sentencing court shall
pronounce the complete sentence which shall include the prison
sen-
tence, the maximum potential reduction to such sentence as a result
of
good time and the period of postrelease supervision at the
sentencing
hearing. Failure to pronounce the period of postrelease supervision
shall
not negate the existence of such period of postrelease
supervision.
(3) In presumptive nonprison cases, the
sentencing court shall pro-
nounce the prison sentence as well as the duration of the nonprison
sanc-
tion at the sentencing hearing.
(f) Each grid block states the
presumptive sentencing range for an
offender whose crime of conviction and criminal history place such
of-
fender in that grid block. If an offense is classified in a grid
block below
the dispositional line, the presumptive disposition shall be
nonimprison-
ment. If an offense is classified in a grid block above the
dispositional
line, the presumptive disposition shall be imprisonment. If an
offense is
classified in grid blocks 5-H, 5-I or 6-G, the court may impose an
optional
nonprison sentence upon making the following findings on the
record:
(1) An appropriate treatment program
exists which is likely to be
more effective than the presumptive prison term in reducing the
risk of
offender recidivism; and
(2) the recommended treatment program is
available and the of-
fender can be admitted to such program within a reasonable period
of
time; or
(3) the nonprison sanction will serve
community safety interests by
promoting offender reformation.
Any decision made by the court regarding the
imposition of an optional
nonprison sentence if the offense is classified in grid blocks 5-H,
5-I or
6-G shall not be considered a departure and shall not be subject to
appeal.
(g) The sentence for the violation of
K.S.A. 21-3411, aggravated as-
sault against a law enforcement officer or K.S.A. 21-3415,
aggravated
battery against a law enforcement officer and amendments thereto
which
places the defendant's sentence in grid block 6-H or 6-I shall be
pre-
sumed imprisonment. The court may impose an optional nonprison
sen-
tence upon making a finding on the record that the nonprison
sanction
will serve community safety interests by promoting offender
reformation.
Any decision made by the court regarding the imposition of the
optional
nonprison sentence, if the offense is classified in grid block 6-H
or 6-I,
shall not be considered departure and shall not be subject to
appeal.
(h) When a firearm is used to commit any
person felony, the of-
fender's sentence shall be presumed imprisonment. The court may
im-
pose an optional nonprison sentence upon making a finding on the
record
that the nonprison sanction will serve community safety interests
by pro-
moting offender reformation. Any decision made by the court
regarding
the imposition of the optional nonprison sentence shall not be
considered
a departure and shall not be subject to appeal.
(i) The sentence for the violation of the
felony provision of K.S.A. 8-
1567 and subsection (b) of K.S.A. 21-3705,
(c)(3) of K.S.A. 21-3412 and
amendments thereto shall be as provided by the specific mandatory
sen-
tencing requirements of that section and shall not be subject to
the pro-
visions of this section or K.S.A. 21-4707 and amendments thereto.
Not-
withstanding the provisions of any other section, the term of
imprisonment imposed for the violation of the felony provision of
K.S.A.
8-1567 and subsection (b) of K.S.A. 21-3705,
(c)(3) of K.S.A. 21-3412 and
amendments thereto shall not be served in a state facility in the
custody
of the secretary of corrections.
(j) The sentence for any persistent sex
offender whose current con-
victed crime carries a presumptive term of imprisonment shall be
double
the maximum duration of the presumptive imprisonment term. The
sen-
tence for any persistent sex offender whose current conviction
carries a
presumptive nonprison term shall be presumed imprisonment and
shall
be double the maximum duration of the presumptive imprisonment
term.
Except as otherwise provided in this subsection, as used in this
subsection,
``persistent sex offender'' means a person who: (1) Has been
convicted in
this state of a sexually violent crime, as defined in K.S.A.
22-3717 and
amendments thereto; and (2) at the time of the conviction under
subsec-
tion (1) has at least one conviction for a sexually violent crime,
as defined
in K.S.A. 22-3717 and amendments thereto in this state or
comparable
felony under the laws of another state, the federal government or a
for-
eign government. The provisions of this subsection shall not apply
to any
person whose current convicted crime is a severity level 1 or 2
felony.
(k) If it is shown at sentencing that the
offender committed any felony
violation for the benefit of, at the direction of, or in
association with any
criminal street gang, with the specific intent to promote, further
or assist
in any criminal conduct by gang members, the offender's sentence
shall
be presumed imprisonment. Any decision made by the court
regarding
the imposition of the optional nonprison sentence shall not be
considered
a departure and shall not be subject to appeal. As used in this
subsection,
``criminal street gang'' means any organization, association or
group of
three or more persons, whether formal or informal, having as one of
its
primary activities the commission of one or more person felonies or
felony
violations of the uniform controlled substances act, K.S.A. 65-4101
et seq.,
and amendments thereto, which has a common name or common iden-
tifying sign or symbol, whose members, individually or collectively
engage
in or have engaged in the commission, attempted commission,
conspiracy
to commit or solicitation of two or more person felonies or felony
viola-
tions of the uniform controlled substances act, K.S.A. 65-4101 et
seq.,
and amendments thereto, or any substantially similar offense from
an-
other jurisdiction.
(l) The sentence for a violation of
subsection (a) of K.S.A. 21-3715
and amendments thereto when such person being sentenced has a
prior
conviction for a violation of subsection (a) or (b) of K.S.A.
21-3715 or 21-
3716 and amendments thereto shall be presumed
imprisonment.
Sec. 18. K.S.A. 1998 Supp. 21-4706
is hereby amended to read as
follows: 21-4706. (a) For crimes committed on or after July 1,
1993, the
sentences of imprisonment shall represent the time a person shall
actually
serve, subject to a reduction of up to 15% of the primary sentence
for
good time as authorized by law.
(b) The sentencing court shall pronounce
sentence in all felony cases.
(c) Violations of K.S.A. 21-3401,
subsection (a) of K.S.A. 21-3402, 21-
3439 and 21-3801 and amendments thereto are off-grid crimes for
the
purpose of sentencing. Except as otherwise provided by K.S.A.
21-4622
through 21-4627, and 21-4629 through 21-4631, and amendments
thereto, the sentence shall be imprisonment for life.
Sec. 19. K.S.A. 1998 Supp. 21-4711
is hereby amended to read as
follows: 21-4711. In addition to the provisions of K.S.A. 21-4710
and
amendments thereto, the following shall apply in determining an
of-
fender's criminal history classification as contained in the
presumptive
sentencing guidelines grid for nondrug crimes and the presumptive
sen-
tencing guidelines grid for drug crimes:
(a) Every three prior adult convictions
or juvenile adjudications of
class A and class B person misdemeanors in the offender's criminal
his-
tory, or any combination thereof, shall be rated as one adult
conviction
or one juvenile adjudication of a person felony for criminal
history pur-
poses. Every three prior adult convictions or juvenile
adjudications of
assault as defined in K.S.A. 21-3408 and amendments thereto
occurring
within a period of commencing three years
prior to the date of conviction
for the current crime of conviction shall be rated as one
adult conviction
or one juvenile adjudication of a person felony for criminal
history pur-
poses.
(b) A conviction of subsection (a)(1) of
K.S.A. 21-4204 and amend-
ments thereto, criminal possession of firearms by a person who is
both
addicted to and an unlawful user of a controlled substance,
subsection
(a)(4) of K.S.A. 21-4204 and amendments thereto, possession of a
firearm
on school grounds or K.S.A. 21-4218 and amendments thereto,
possession
of a firearm on the grounds or in the state capitol building, will
be scored
as a select class B nonperson misdemeanor conviction or
adjudication and
shall not be scored as a person misdemeanor for criminal history
pur-
poses.
(c) (1) If the current crime of
conviction was committed before July
1, 1996, and is for subsection (b) of K.S.A. 21-3404, involuntary
man-
slaughter in the commission of K.S.A. 8-1567 and amendments
thereto
driving under the influence, then, each prior adult conviction or
juvenile
adjudication for K.S.A. 8-1567 and amendments thereto shall count
as
one person felony for criminal history purposes.
(2) If the current crime of conviction
was committed on or after July
1, 1996, and is for involuntary manslaughter while driving under
the in-
fluence of alcohol and drugs, each prior adult conviction,
diversion in lieu
of criminal prosecution or juvenile adjudication for an act
described in
K.S.A. 8-1567 and amendments thereto shall count as one person
felony
for criminal history purposes.
(d) Prior burglary adult convictions and
juvenile adjudications will be
scored for criminal history purposes as follows:
(1) As a prior person felony if the prior
conviction or adjudication
was classified as a burglary as described in subsection (a) of
K.S.A. 21-
3715 and amendments thereto.
(2) As a prior nonperson felony if the
prior conviction or adjudication
was classified as a burglary as described in subsection (b) or (c)
of K.S.A.
21-3715 and amendments thereto.
The facts required to classify prior burglary
adult convictions and ju-
venile adjudications must be established by the state by a
preponderance
of the evidence.
(e) Out-of-state convictions and juvenile
adjudications will be used in
classifying the offender's criminal history. An out-of-state crime
will be
classified as either a felony or a misdemeanor according to the
convicting
jurisdiction. If a crime is a felony in another state, it will be
counted as a
felony in Kansas. The state of Kansas shall classify the crime as
person or
nonperson. In designating a crime as person or nonperson
comparable
offenses shall be referred to. If the state of Kansas does not have
a com-
parable offense, the out-of-state conviction shall be classified as
a non-
person crime. Convictions or adjudications occurring within the
federal
system, other state systems, the District of Columbia, foreign,
tribal or
military courts are considered out-of-state convictions or
adjudications.
The facts required to classify out-of-state adult convictions and
juvenile
adjudications must be established by the state by a preponderance
of the
evidence.
(f) Except as provided in subsections
(4), (5) and (6) of K.S.A. 21-
4705 21-4710 and amendments thereto,
juvenile adjudications will be
applied in the same manner as adult convictions. Out-of-state
juvenile
adjudications will be treated as juvenile adjudications in
Kansas.
(g) A prior felony conviction of an
attempt, a conspiracy or a solici-
tation as provided in K.S.A. 21-3301, 21-3302 or 21-3303 and
amend-
ments thereto, to commit a crime shall be treated as a person or
non-
person crime in accordance with the designation assigned to the
underlying crime.
(h) Drug crimes are designated as
nonperson crimes for criminal his-
tory scoring.
Sec. 20. K.S.A. 1998 Supp. 22-3717
is hereby amended to read as
follows: 22-3717. (a) Except as otherwise provided by this section,
K.S.A.
1993 Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through
21-
4638 and amendments thereto, an inmate, including an inmate
sentenced
pursuant to K.S.A. 21-4618 and amendments thereto, shall be
eligible for
parole after serving the entire minimum sentence imposed by the
court,
less good time credits.
(b) (1) Except as provided by
K.S.A. 21-4635 through 21-4638 and
amendments thereto, an inmate sentenced to imprisonment for the
crime
of capital murder, or an inmate sentenced for the crime of murder
in the
first degree based upon a finding of premeditated murder, committed
on
or after July 1, 1994, shall be eligible for parole after serving
25 years of
confinement, without deduction of any good time credits.
(2) Except as provided by subsection
(b)(1) or (b)(4), K.S.A. 1993
Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through
21-4638,
and amendments thereto, an inmate sentenced to imprisonment for
an
off-grid offense committed on or after July 1, 1993, but prior
to July 1,
1999, shall be eligible for parole after serving 15 years of
confinement,
without deduction of any good time credits and an inmate
sentenced to
imprisonment for an off-grid offense committed on or after July
1, 1999,
shall be eligible for parole after serving 20 years of
confinement without
deduction of any good time credits.
(3) Except as provided by K.S.A. 1993
Supp. 21-4628 prior to its
repeal, an inmate sentenced for a class A felony committed before
July
1, 1993, including an inmate sentenced pursuant to K.S.A. 21-4618
and
amendments thereto, shall be eligible for parole after serving 15
years of
confinement, without deduction of any good time credits.
(4) An inmate sentenced to imprisonment
for a violation of subsec-
tion (a) of K.S.A. 21-3402 and amendments thereto committed on or
after
July 1, 1996, but prior to July 1, 1999, shall be eligible
for parole after
serving 10 years of confinement without deduction of any good time
cred-
its.
(c) Except as provided in subsection (e),
if an inmate is sentenced to
imprisonment for more than one crime and the sentences run
consecu-
tively, the inmate shall be eligible for parole after serving the
total of:
(1) The aggregate minimum sentences, as
determined pursuant to
K.S.A. 21-4608 and amendments thereto, less good time credits for
those
crimes which are not class A felonies; and
(2) an additional 15 years, without
deduction of good time credits,
for each crime which is a class A felony.
(d) (1) Persons sentenced for
crimes, other than off-grid crimes,
committed on or after July 1, 1993, will not be eligible for
parole, but will
be released to a mandatory period of postrelease supervision upon
com-
pletion of the prison portion of their sentence as follows:
(A) Except as provided in subparagraphs
(C) and (D), persons sen-
tenced for nondrug severity level 1 through 6 crimes and drug
severity
levels 1 through 3 crimes must serve 36 months, plus the amount of
good
time earned and retained pursuant to K.S.A. 21-4722 and
amendments
thereto, on postrelease supervision.
(B) Except as provided in subparagraphs
(C) and (D), persons sen-
tenced for nondrug severity level 7 through 10 crimes and drug
severity
level 4 crimes must serve 24 months, plus the amount of good time
earned
and retained pursuant to K.S.A. 21-4722 and amendments thereto,
on
postrelease supervision.
(C) (i) The sentencing judge shall
impose the postrelease supervision
period provided in subparagraph (d)(1)(A) or (d)(1)(B), unless the
judge
finds substantial and compelling reasons to impose a departure
based
upon a finding that the current crime of conviction was sexually
violent
or sexually motivated. In that event, departure may be imposed to
extend
the postrelease supervision to a period of up to 60 months.
(ii) If the sentencing judge departs from
the presumptive postrelease
supervision period, the judge shall state on the record at the time
of
sentencing the substantial and compelling reasons for the
departure. De-
partures in this section are subject to appeal pursuant to K.S.A.
21-4721
and amendments thereto.
(iii) In determining whether substantial
and compelling reasons exist,
the court shall consider:
(a) Written briefs or oral arguments
submitted by either the defend-
ant or the state;
(b) any evidence received during the
proceeding;
(c) the presentence report, the victim's
impact statement and any
psychological evaluation as ordered by the court pursuant to
subsection
(e) of K.S.A. 21-4714 and amendments thereto; and
(d) any other evidence the court finds
trustworthy and reliable.
(iv) The sentencing judge may order that
a psychological evaluation
be prepared and the recommended programming be completed by the
offender. The department of corrections or the parole board shall
ensure
that court ordered sex offender treatment be carried out.
(v) In carrying out the provisions of
subparagraph (d)(1)(C), the court
shall refer to K.S.A. 21-4718 and amendments thereto.
(vi) Upon petition, the parole board may
provide for early discharge
from the postrelease supervision period upon completion of court
or-
dered programs and completion of the presumptive postrelease
super-
vision period, as determined by the crime of conviction, pursuant
to sub-
paragraph (d)(1)(A) or (B). Early discharge from postrelease
supervision
is at the discretion of the parole board.
(vii) Persons convicted of crimes deemed
sexually violent or sexually
motivated, shall be registered according to the habitual sex
offender reg-
istration act, K.S.A. 22-4901 through 22-4910 and amendments
thereto.
(D) The period of postrelease supervision
provided in subparagraphs
(A) and (B) may be reduced by up to 12 months based on the
offender's
compliance with conditions of supervision and overall performance
while
on postrelease supervision. The reduction in the supervision period
shall
be on an earned basis pursuant to rules and regulations adopted by
the
secretary of corrections.
(E) In cases where sentences for crimes
from more than one severity
level have been imposed, the offender shall serve the longest
period of
postrelease supervision as provided by this section available for
any crime
upon which sentence was imposed irrespective of the severity level
of the
crime. Supervision periods will not aggregate.
(2) As used in this section, ``sexually
violent crime'' means:
(A) Rape, K.S.A. 21-3502, and amendments
thereto;
(B) indecent liberties with a child,
K.S.A. 21-3503, and amendments
thereto;
(C) aggravated indecent liberties with a
child, K.S.A. 21-3504, and
amendments thereto;
(D) criminal sodomy, subsection (a)(2)
and (a)(3) of K.S.A. 21-3505
and amendments thereto;
(E) aggravated criminal sodomy, K.S.A.
21-3506, and amendments
thereto;
(F) indecent solicitation of a child,
K.S.A. 21-3510, and amendments
thereto;
(G) aggravated indecent solicitation of a
child, K.S.A. 21-3511, and
amendments thereto;
(H) sexual exploitation of a child,
K.S.A. 21-3516, and amendments
thereto;
(I) aggravated sexual battery, K.S.A.
21-3518, and amendments
thereto;
(J) any conviction for a felony offense
in effect at any time prior to
the effective date of this act, that is comparable to a sexually
violent crime
as defined in subparagraphs (A) through (I), or any federal or
other state
conviction for a felony offense that under the laws of this state
would be
a sexually violent crime as defined in this section;
(K) an attempt, conspiracy or criminal
solicitation, as defined in
K.S.A. 21-3301, 21-3302, 21-3303, and amendments thereto, of a
sexually
violent crime as defined in this section; or
(L) any act which at the time of
sentencing for the offense has been
determined beyond a reasonable doubt to have been sexually
motivated.
As used in this subparagraph, ``sexually motivated'' means that one
of the
purposes for which the defendant committed the crime was for the
pur-
pose of the defendant's sexual gratification.
(e) If an inmate is sentenced to
imprisonment for a crime committed
while on parole or conditional release, the inmate shall be
eligible for
parole as provided by subsection (c), except that the Kansas parole
board
may postpone the inmate's parole eligibility date by assessing a
penalty
not exceeding the period of time which could have been assessed if
the
inmate's parole or conditional release had been violated for
reasons other
than conviction of a crime.
(f) If a person is sentenced to prison
for a crime committed on or
after July 1, 1993, while on probation, parole, conditional release
or in a
community corrections program, for a crime committed prior to July
1,
1993, and the person is not eligible for retroactive application of
the
sentencing guidelines and amendments thereto pursuant to K.S.A.
21-
4724 and amendments thereto, the new sentence shall not be
aggregated
with the old sentence, but shall begin when the person is paroled
or
reaches the conditional release date on the old sentence. If the
offender
was past the offender's conditional release date at the time the
new of-
fense was committed, the new sentence shall not be aggregated with
the
old sentence but shall begin when the person is ordered released by
the
Kansas parole board or reaches the maximum sentence expiration
date
on the old sentence, whichever is earlier. The new sentence shall
then
be served as otherwise provided by law. The period of postrelease
su-
pervision shall be based on the new sentence, except that those
offenders
whose old sentence is a term of imprisonment for life, imposed
pursuant
to K.S.A. 1993 Supp. 21-4628 prior to its repeal, or an
indeterminate
sentence with a maximum term of life imprisonment, for which there
is
no conditional release or maximum sentence expiration date, shall
remain
on postrelease supervision for life or until discharged from
supervision
by the Kansas parole board.
(g) Subject to the provisions of this
section, the Kansas parole board
may release on parole those persons confined in institutions who
are el-
igible for parole when: (1) The board believes that the inmate
should be
released for hospitalization, for deportation or to answer the
warrant or
other process of a court and is of the opinion that there is
reasonable
probability that the inmate can be released without detriment to
the com-
munity or to the inmate; or (2) the secretary of corrections has
reported
to the board in writing that the inmate has satisfactorily
completed the
programs required by any agreement entered under K.S.A. 75-5210a
and
amendments thereto, or any revision of such agreement, and the
board
believes that the inmate is able and willing to fulfill the
obligations of a
law abiding citizen and is of the opinion that there is reasonable
proba-
bility that the inmate can be released without detriment to the
community
or to the inmate. Parole shall not be granted as an award of
clemency and
shall not be considered a reduction of sentence or a pardon.
(h) The Kansas parole board shall hold a
parole hearing at least the
month prior to the month an inmate will be eligible for parole
under
subsections (a), (b) and (c). At least the month preceding the
parole hear-
ing, the county or district attorney of the county where the inmate
was
convicted shall give written notice of the time and place of the
public
comment sessions for the inmate to any victim of the inmate's crime
who
is alive and whose address is known to the county or district
attorney or,
if the victim is deceased, to the victim's family if the family's
address is
known to the county or district attorney. Except as otherwise
provided,
failure to notify pursuant to this section shall not be a reason to
postpone
a parole hearing. In the case of any inmate convicted of a class A
felony
the secretary of corrections shall give written notice of the time
and place
of the public comment session for such inmate at least one month
pre-
ceding the public comment session to any victim of such inmate's
crime
or the victim's family pursuant to K.S.A. 74-7338 and
amendments
thereto. If notification is not given to such victim or such
victim's family
in the case of any inmate convicted of a class A felony, the board
shall
postpone a decision on parole of the inmate to a time at least 30
days
after notification is given as provided in this section. Nothing in
this sec-
tion shall create a cause of action against the state or an
employee of the
state acting within the scope of the employee's employment as a
result
of the failure to notify pursuant to this section. If granted
parole, the
inmate may be released on parole on the date specified by the
board, but
not earlier than the date the inmate is eligible for parole under
subsec-
tions (a), (b) and (c). At each parole hearing and, if parole is
not granted,
at such intervals thereafter as it determines appropriate, the
Kansas parole
board shall consider: (1) Whether the inmate has satisfactorily
completed
the programs required by any agreement entered under K.S.A.
75-5210a
and amendments thereto, or any revision of such agreement; and (2)
all
pertinent information regarding such inmate, including, but not
limited
to, the circumstances of the offense of the inmate; the presentence
report;
the previous social history and criminal record of the inmate; the
conduct,
employment, and attitude of the inmate in prison; the reports of
such
physical and mental examinations as have been made; comments of
the
victim and the victim's family; comments of the public; official
comments;
and capacity of state correctional institutions.
(i) In those cases involving inmates
sentenced for a crime committed
after July 1, 1993, the parole board will review the inmates
proposed
release plan. The board may schedule a hearing if they desire. The
board
may impose any condition they deem necessary to insure public
safety,
aid in the reintegration of the inmate into the community, or items
not
completed under the agreement entered into under K.S.A. 75-5210a
and
amendments thereto. The board may not advance or delay an
inmate's
release date. Every inmate while on postrelease supervision shall
remain
in the legal custody of the secretary of corrections and is subject
to the
orders of the secretary.
(j) Before ordering the parole of any
inmate, the Kansas parole board
shall have the inmate appear before either in person or via a video
con-
ferencing format and shall interview the inmate unless impractical
be-
cause of the inmate's physical or mental condition or absence from
the
institution. Every inmate while on parole shall remain in the legal
custody
of the secretary of corrections and is subject to the orders of the
secretary.
Whenever the Kansas parole board formally considers placing an
inmate
on parole and no agreement has been entered into with the inmate
under
K.S.A. 75-5210a and amendments thereto, the board shall notify the
in-
mate in writing of the reasons for not granting parole. If an
agreement
has been entered under K.S.A. 75-5210a and amendments thereto
and
the inmate has not satisfactorily completed the programs specified
in the
agreement, or any revision of such agreement, the board shall
notify the
inmate in writing of the specific programs the inmate must
satisfactorily
complete before parole will be granted. If parole is not granted
only
because of a failure to satisfactorily complete such programs, the
board
shall grant parole upon the secretary's certification that the
inmate has
successfully completed such programs. If an agreement has been
entered
under K.S.A. 75-5210a and amendments thereto and the secretary
of
corrections has reported to the board in writing that the inmate
has sat-
isfactorily completed the programs required by such agreement, or
any
revision thereof, the board shall not require further program
participa-
tion. However, if the board determines that other pertinent
information
regarding the inmate warrants the inmate's not being released on
parole,
the board shall state in writing the reasons for not granting the
parole. If
parole is denied for an inmate sentenced for a crime other than a
class A
or class B felony or an off-grid felony, the board shall hold
another parole
hearing for the inmate not later than one year after the denial
unless the
parole board finds that it is not reasonable to expect that parole
would
be granted at a hearing if held in the next three years or during
the interim
period of a deferral. In such case, the parole board may defer
subsequent
parole hearings for up to three years but any such deferral by the
board
shall require the board to state the basis for its findings. If
parole is denied
for an inmate sentenced for a class A or class B felony or an
off-grid
felony, the board shall hold another parole hearing for the inmate
not
later than three years after the denial unless the parole board
finds that
it is not reasonable to expect that parole would be granted at a
hearing if
held in the next 10 years or during the interim period of a
deferral. In
such case, the parole board may defer subsequent parole hearings
for up
to 10 years but any such deferral shall require the board to state
the basis
for its findings.
(k) Parolees and persons on postrelease
supervision shall be assigned,
upon release, to the appropriate level of supervision pursuant to
the cri-
teria established by the secretary of corrections.
(l) The Kansas parole board shall adopt
rules and regulations in ac-
cordance with K.S.A. 77-415 et seq., and amendments thereto,
not in-
consistent with the law and as it may deem proper or necessary,
with
respect to the conduct of parole hearings, postrelease supervision
reviews,
revocation hearings, orders of restitution, reimbursement of
expenditures
by the state board of indigents' defense services and other
conditions to
be imposed upon parolees or releasees. Whenever an order for parole
or
postrelease supervision is issued it shall recite the conditions
thereof.
(m) Whenever the Kansas parole board
orders the parole of an in-
mate or establishes conditions for an inmate placed on postrelease
su-
pervision, the board:
(1) Unless it finds compelling
circumstances which would render a
plan of payment unworkable, shall order as a condition of parole or
post-
release supervision that the parolee or the person on postrelease
super-
vision pay any transportation expenses resulting from returning the
pa-
rolee or the person on postrelease supervision to this state to
answer
criminal charges or a warrant for a violation of a condition of
probation,
assignment to a community correctional services program, parole,
con-
ditional release or postrelease supervision;
(2) to the extent practicable, shall
order as a condition of parole or
postrelease supervision that the parolee or the person on
postrelease su-
pervision make progress towards or successfully complete the
equivalent
of a secondary education if the inmate has not previously completed
such
educational equivalent and is capable of doing so;
(3) may order that the parolee or person
on postrelease supervision
perform community or public service work for local governmental
agen-
cies, private corporations organized not-for-profit or charitable
or social
service organizations performing services for the community;
(4) may order the parolee or person on
postrelease supervision to pay
the administrative fee imposed pursuant to K.S.A. 1998 Supp.
22-4529
unless the board finds compelling circumstances which would render
pay-
ment unworkable; and
(5) unless it finds compelling
circumstances which would render a
plan of payment unworkable, shall order that the parolee or person
on
postrelease supervision reimburse the state for all or part of the
expend-
itures by the state board of indigents' defense services to provide
counsel
and other defense services to the person. In determining the amount
and
method of payment of such sum, the parole board shall take account
of
the financial resources of the person and the nature of the burden
that
the payment of such sum will impose. Such amount shall not exceed
the
amount claimed by appointed counsel on the payment voucher for
indi-
gents' defense services or the amount prescribed by the board of
indi-
gents' defense services reimbursement tables as provided in K.S.A.
22-
4522 and amendments thereto, whichever is less, minus any
previous
payments for such services.
(n) If the court which sentenced an
inmate specified at the time of
sentencing the amount and the recipient of any restitution ordered
as a
condition of parole or postrelease supervision, the Kansas parole
board
shall order as a condition of parole or postrelease supervision
that the
inmate pay restitution in the amount and manner provided in the
journal
entry unless the board finds compelling circumstances which would
ren-
der a plan of restitution unworkable.
(o) Whenever the Kansas parole board
grants the parole of an inmate,
the board, within 10 days of the date of the decision to grant
parole, shall
give written notice of the decision to the county or district
attorney of the
county where the inmate was sentenced.
(p) When an inmate is to be released on
postrelease supervision, the
secretary, within 30 days prior to release, shall provide the
county or
district attorney of the county where the inmate was sentenced
written
notice of the release date.
(q) Inmates shall be released on
postrelease supervision upon the
termination of the prison portion of their sentence. Time served
while
on postrelease supervision will vest.
(r) An inmate who is allocated regular
good time credits as provided
in K.S.A. 22-3725 and amendments thereto may receive meritorious
good
time credits in increments of not more than 90 days per meritorious
act.
These credits may be awarded by the secretary of corrections when
an
inmate has acted in a heroic or outstanding manner in coming to
the
assistance of another person in a life threatening situation,
preventing
injury or death to a person, preventing the destruction of property
or
taking actions which result in a financial savings to the
state.
Section 21. K.S.A. 22-4001 is
hereby amended to read as follows: 22-
4001. (a) Subject to the provisions of this act,
The mode of carrying out
a sentence of death in this state shall be by intravenous injection
of a
substance or substances in a quantity sufficient to cause death in
a swift
and humane manner.
(b) The secretary of corrections shall
supervise the carrying out of
each sentence of death and shall determine the procedures
therefor,
which shall be consistent with this act and the other laws of the
state.
The secretary of corrections shall designate one or more
executioners and
other persons necessary to assist in carrying out the sentence of
death as
provided in this section. The identity of executioners and other
persons
designated to assist in carrying out the sentence of death shall
be confi-
dential.
(c) In order to provide
The secretary of corrections with assistance
in selecting shall select the type of
substance or substances to be admin-
istered in carrying out a sentence of death by intravenous
injection in a
swift and humane manner,. The secretary
shall appoint a panel of three
persons to advise the secretary, one of whom shall be a
pharmacologist,
one of whom shall be a toxicologist and one of whom shall
be an anes-
thesiologist. The panel shall also advise the secretary of
corrections con-
cerning matters related to K.S.A. 22-4015. The panel shall
meet upon the
call of the secretary and, for the performance of their
official duties, panel
members shall be paid compensation, subsistence allowances,
mileage
and other expenses as provided in K.S.A. 75-3223 and
amendments
thereto. of health and environment shall
certify to the secretary of cor-
rections that the substance or substances selected by the
secretary of cor-
rections will result in death in a swift and humane manner. If
the secretary
of corrections desires to change the substance or substances to
be admin-
istered from those previously certified by the secretary of
health and en-
vironment, the proposed substance or substances also shall be
certified as
provided in this section.
(d) The secretary of corrections may
designate in writing a warden
of one of the correctional institutions under the secretary's
supervision to
perform the duties imposed upon the secretary by this section and
by
K.S.A. 22-4002, 22-4003, 22-4013 and 22-4014, and amendments
thereto.
Sec. 22. K.S.A. 22-4003 is hereby
amended to read as follows: 22-
4003. Besides (a) In addition to the
secretary of corrections or the warden
designated by the secretary, the executioner and persons designated
pur-
suant to K.S.A. 22-4001, and amendments thereto, to
assist in the exe-
cution, the following persons, and no others, may be present at the
exe-
cution: The (1) A member of the clergy
attending the prisoner,; (2) not
more than three persons designated by the prisoner; and
(3) not more
than six 10 persons designated by the
secretary of corrections. as official
witnesses. The secretary shall consider the inclusion of members
of the
immediate family of any deceased victim of the prisoner as
witnesses when
designating official witnesses. The identity of persons present
at the exe-
cution, other than the secretary or the warden designated by the
secretary,
shall be confidential. A witness may elect to reveal such
witness' own
identity, but in no event shall a witness reveal the identity of
any other
person present at the execution.
(b) All witnesses shall be 18 years of
age or older.
(c) The secretary may deny the
attendance of any person selected or
designated as a witness when the secretary determines it is
necessary for
reasons of security and order of the institution.
(d) As used in this section, ``members
of the immediate family'' means
the spouse, a child by birth or adoption, stepchild, parent,
grandparent,
grandchild, sibling or the spouse of any member of the immediate
family
specified in this subsection.
Sec. 23. K.S.A. 22-4006 is hereby
amended to read as follows: 22-
4006. (a) At any time prior to execution, a convict under sentence
of
death, such convict's counsel or the warden of the correctional
institution
or sheriff having custody of such convict may request a
determination of
the convict's sanity by a district judge of the judicial district
in which such
convict was tried and sentenced. If the district judge determines
that
there is not sufficient reason to believe that the convict is
insane, the
judge shall so find and refuse to suspend the execution of such
convict.
If the district judge determines that there is sufficient reason to
believe
that the convict is insane, the judge shall suspend the execution
and con-
duct a hearing to determine the sanity of the convict.
(b) At the hearing, the district judge
shall determine the issue of the
convict's sanity. The judge shall order a psychiatric or
psychological ex-
amination of the convict. For that purpose, the court shall appoint
two
licensed physicians or licensed psychologists, or one of each,
qualified by
training and practice to make such examination, to examine the
convict
and report their findings in writing to the judge within 10 days
after the
order of examination is issued. The convict shall have the right to
present
evidence and cross-examine any witnesses at the hearing. No
statement
made by the convict in the course of any examination provided for
by this
section, whether or not the convict consents to the examination,
shall be
admitted in evidence against the convict in any criminal
proceeding.
(c) If, at the conclusion of a hearing
pursuant to this section, the judge
determines that the convict is sane, the judge shall enter an order
setting
a date for the convict's execution, which shall be carried
into effect in the
same manner as provided in the original sentence
recording the deter-
mination. A copy of the order shall be sent by
mail delivered to the clerk
of the supreme court and to the secretary of corrections.
Upon receipt of
the order, the supreme court shall issue to the secretary of
corrections a
warrant under seal of the supreme court, commanding the
secretary or a
warden designated pursuant to K.S.A. 22-4001, and amendments
thereto,
to proceed to carry out the sentence of execution during the
week desig-
nated by the supreme court. A copy of the warrant shall be
delivered to
the secretary of corrections and the clerk of the district
court.
(d) If, at the conclusion of a hearing
pursuant to this section, the
judge determines that the convict is insane, the judge shall
suspend the
execution until further order. The judge shall enter an order
recording
the determination. A copy of the order shall be delivered to the
clerk of
the supreme court and the secretary of corrections. Upon receipt
of the
order, the supreme court shall issue to the secretary of
corrections a war-
rant under seal of the supreme court suspending the sentence. A
copy of
the warrant shall be delivered to the secretary of corrections
and the clerk
of the district court. Any time thereafter when the judge
has sufficient
reason to believe that the convict has become sane, the judge
shall again
shall determine the sanity of the convict as provided by
this section. Pro-
ceedings pursuant to this section may continue to be held at such
times
as the district judge orders until it is either
determined either that such
convict is sane or incurably insane.
Sec. 24. K.S.A. 22-4009, as amended
by section 35 of 1999 House
Bill No. 2206, is hereby amended to read as follows: 22-4009. (a)
If a
convict under sentence of death appears to be pregnant or alleges
to be
pregnant, the person having custody of the convict shall notify the
sec-
retary of corrections. The secretary shall designate one or more
licensed
physicians to examine the convict to determine if the convict is
pregnant.
If the convict is not pregnant, the execution shall be carried
out as pre-
viously ordered. If the convict is pregnant, the secretary
of corrections
shall notify the chief judge of the judicial district where
the conviction
was rendered and the execution of the sentence of death
shall be post-
poned. If the convict is not pregnant, the execution shall
be carried out
as previously ordered. clerk of the supreme
court. Upon receipt of the
notice, the supreme court shall issue to the secretary of
corrections a
warrant under seal of the supreme court postponing the execution
of the
sentence of death. A copy of the warrant shall be delivered to
the secretary
of corrections and the clerk of the district court.
(b) When the execution of a sentence of
death is postponed because
of pregnancy, the judge secretary of
corrections shall wait until the child
is born or the pregnancy is otherwise terminated and then the
judge
secretary shall fix the date for the
execution notify the clerk of the supreme
court of the birth of the child or termination of the pregnancy.
Upon
receipt of the notice, the supreme court shall issue to the
secretary of
corrections a warrant under seal of the supreme court,
commanding the
secretary or a warden designated pursuant to K.S.A. 22-4001, and
amend-
ments thereto, to proceed to carry out the sentence of execution
during
the week designated by the supreme court. A copy of the warrant
shall
be delivered to the secretary of corrections and the clerk of
the district
court. At any time during the postponement of the execution,
the judge
secretary may order an examination as provided in this
section to deter-
mine whether the convict remains pregnant. The costs of each
medical
examination conducted pursuant to this section shall be paid by
the
county where the case originated.
Sec. 25. K.S.A. 22-4011 is hereby
amended to read as follows: 22-
4011. If any person who has been sentenced to death escapes and is
not
retaken before the time fixed for execution, it shall be lawful for
any
sheriff or other officer or person to rearrest and return the
person to the
custody of the secretary of corrections. Upon such return to
custody, the
secretary of corrections shall give notice thereof to the
governor clerk of
the supreme court. Upon receipt of such notice, the
governor shall issue
a warrant fixing and appointing a day for the
execution, supreme court
shall issue to the secretary of corrections a warrant under seal
of the
supreme court, commanding the secretary or a warden designated
pur-
suant to K.S.A. 22-4001, and amendments thereto, to proceed to
carry
out the sentence of execution during the week designated by the
supreme
court which shall be carried into effect in the same manner
as provided
by statute for the execution of an original sentence of death. A
copy of
the warrant shall be delivered to the secretary of corrections
and the clerk
of the district court.
Sec. 26. K.S.A. 22-4012 is hereby
amended to read as follows: 22-
4012. Whenever any person has been sentenced to death, it shall be
the
duty of the clerk of the court before which the conviction was
rendered
to issue a warrant an order, under the seal
of the court, which shall recite
the conviction and sentence and be directed to the secretary of
correc-
tions. The clerk shall deliver the warrant
order to the sheriff of the county
in which the conviction was rendered, and such sheriff
shall promptly
shall transport such convicted person to the state
correctional institution
designated by the secretary of corrections and deliver such
convict, to-
gether with the warrant order, into the
custody of the warden of the
designated institution, who shall receive and safely keep such
convict until
the time of execution, or until otherwise ordered by the secretary
or other
competent authority. The warden shall notify the secretary of
corrections
of the receipt of the convict and warrant such
order.
Sec. 27. K.S.A. 22-4013 is hereby
amended to read as follows: 22-
4013. (a) It shall be the duty of the secretary of
corrections or the warden
designated by the secretary to proceed at the time fixed in
accordance
with law to execute a sentence of death in the
manner prescribed by this
act.
(b) Upon receipt of an order of the
district court as provided by this
act, the supreme court shall issue to the secretary of
corrections a warrant
under seal of the supreme court, commanding the secretary or a
warden
designated pursuant to K.S.A. 22-4001, and amendments thereto,
to pro-
ceed to carry out the sentence of execution during the week
designated by
the supreme court. The week designated in the warrant shall be
sufficient
to enable the secretary to give notice as provided in subsection
(c). A copy
of the warrant shall be delivered to the secretary of
corrections and the
clerk of the district court. For purposes of this act, the term
``week'' shall
mean the time period from 12:01 a.m. Sunday through and
including
11:59 p.m. the following Saturday. If the week designated in the
warrant
commanding the execution of a death sentence begins on a day of
the week
other than a Sunday, or sets out a particular date for the
execution, the
secretary of corrections shall notify the clerk of the supreme
court.
(c) The secretary of corrections shall
carry out the execution com-
manded by the warrant issued by the supreme court during the
week
designated by the supreme court on a date selected by the
secretary. The
secretary shall give notice of the date selected by the
secretary for the
execution at least seven calendar days before the execution to
the clerk of
the supreme court, the clerk of the district court in which the
defendant
was convicted, the defendant, the defendant's counsel and the
attorney
general. The secretary may carry out the execution at any time
during
the date selected or as soon thereafter as the secretary deems
appropriate.
Sec. 28. K.S.A. 22-4014 is hereby
amended to read as follows: 22-
4014. If the supreme court orders a suspension of the
execution of a
sentence of death, the suspension shall continue until the
proceedings
are determined. If, after determining the same,
If a sentence of execution
is suspended by an order of a court, the suspension shall
continue until
the supreme court orders otherwise. If the sentence is
affirmed, the su-
preme court shall order the execution of the sentence of death and
shall
designate a day therefor week during which the
sentence of execution shall
be carried out if the week previously designated by the court
has passed.
Otherwise, the execution shall be carried out during the week
previously
designated by the court. It shall be the duty of the clerk
of the supreme
court to issue to the secretary of corrections a warrant under the
seal of
the court, commanding the secretary or a warden designated pursuant
to
K.S.A. 22-4001, and amendments thereto, to proceed to
carry the sen-
tence into execution at the time appointed
during the week designated
by the court, which time. The week during which
the sentence of execution
is to be carried out shall be stated in the warrant. Upon
receipt of the
warrant it shall be the duty of the secretary of corrections to
cause the
sentence to be executed as provided by this act at
during the time des-
ignated by the court.
Sec. 29. K.S.A. 1998 Supp. 22-4902
is hereby amended to read as
follows: 22-4902. As used in this act, unless the context otherwise
re-
quires:
(a) ``Offender'' means: (1) A sex
offender as defined in subsection (b);
(2) a violent offender as defined in subsection (d); (3) any person
who,
on and after the effective date of this act, is convicted of any of
the
following crimes when the victim is less than 18 years of age:
(A) Kidnapping as defined in K.S.A.
21-3420 and amendments
thereto, except by a parent;
(B) aggravated kidnapping as defined in
K.S.A. 21-3421 and amend-
ments thereto; or
(C) criminal restraint as defined in
K.S.A. 21-3424 and amendments
thereto, except by a parent;
(4) any person convicted of any of the
following criminal sexual con-
duct if one of the parties involved is less than 18 years of
age:
(A) Adultery as defined by K.S.A.
21-3507, and amendments thereto;
(B) criminal sodomy as defined by
subsection (a)(1) of K.S.A. 21-
3505, and amendments thereto;
(C) promoting prostitution as defined by
K.S.A. 21-3513, and amend-
ments thereto;
(D) patronizing a prostitute as defined
by K.S.A. 21-3515, and
amendments thereto;
(E) lewd and lascivious behavior as
defined by K.S.A. 21-3508, and
amendment thereto; or
(F) unlawful sexual relations as defined
by K.S.A. 21-3520, and
amendments thereto;
(5) any conviction for an offense in
effect at any time prior to the
effective date of this act, that is comparable to any crime defined
in sub-
section (3) or (4), or any federal or other state conviction for an
offense
that under the laws of this state would be an offense defined in
subsection
(3) or (4); or
(6) an attempt, conspiracy or criminal
solicitation, as defined in
K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of an
of-
fense defined in subsection (3) or (4).
Upon such conviction, the court shall
certify that the person is an of-
fender subject to the provisions of K.S.A. 22-4901
et seq. and amend-
ments thereto and shall include this certification in the
order of commit-
ment. Convictions which result from or are
connected with the same act,
or result from crimes committed at the same time, shall be counted
for
the purpose of this section as one conviction. Any conviction set
aside
pursuant to law is not a conviction for purposes of this section. A
convic-
tion from another state shall constitute a conviction for purposes
of this
section.
(b) ``Sex offender'' includes any person
who, after the effective date
of this act, is convicted of any sexually violent crime set forth
in subsection
(c). Upon such conviction, the court shall certify that the
person is a sex
offender and shall include this certification in the order
of commitment.
Convictions which result from or are connected with the
same act, or
result from crimes committed at the same time, shall be
counted for the
purpose of this section as one conviction. Any conviction
set aside pur-
suant to law is not a conviction for purposes of this
section. A conviction
from another state shall constitute a conviction for
purposes of this sec-
tion.
(c) ``Sexually violent crime'' means:
(1) Rape as defined in K.S.A. 21-3502 and
amendments thereto;
(2) indecent liberties with a child as
defined in K.S.A. 21-3503 and
amendments thereto;
(3) aggravated indecent liberties with a
child as defined in K.S.A. 21-
3504 and amendments thereto;
(4) criminal sodomy as defined in
subsection (a)(2) and (a)(3) of
K.S.A. 21-3505 and amendments thereto;
(5) aggravated criminal sodomy as defined
in K.S.A. 21-3506 and
amendments thereto;
(6) indecent solicitation of a child as
defined by K.S.A. 21-3510 and
amendments thereto;
(7) aggravated indecent solicitation of a
child as defined by K.S.A.
21-3511 and amendments thereto;
(8) sexual exploitation of a child as
defined by K.S.A. 21-3516 and
amendments thereto;
(9) sexual battery as defined by K.S.A.
21-3517 and amendments
thereto;
(10) aggravated sexual battery as defined
by K.S.A. 21-3518 and
amendments thereto;
(11) aggravated incest as defined by
K.S.A. 21-3603 and amendments
thereto; or
(12) any conviction for a offense in
effect at any time prior to the
effective date of this act, that is comparable to a sexually
violent crime as
defined in subparagraphs (1) through (11), or any federal or other
state
conviction for a felony offense that under the laws of this state
would be
a sexually violent crime as defined in this section;
(13) an attempt, conspiracy or criminal
solicitation, as defined in
K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of a
sex-
ually violent crime, as defined in this section; or
(14) any act which at the time of
sentencing for the offense has been
determined beyond a reasonable doubt to have been sexually
motivated.
As used in this subparagraph, ``sexually motivated'' means that one
of the
purposes for which the defendant committed the crime was for the
pur-
pose of the defendant's sexual gratification.
(d) ``Violent offender'' includes any
person who, after the effective
date of this act, is convicted of any of the following crimes:
(1) Capital murder as defined by K.S.A.
21-3439 and amendments
thereto;
(2) murder in the first degree as defined
by K.S.A. 21-3401 and
amendments thereto;
(3) murder in the second degree as
defined by K.S.A. 21-3402 and
amendments thereto;
(4) voluntary manslaughter as defined by
K.S.A. 21-3403 and amend-
ments thereto;
(5) involuntary manslaughter as defined
by K.S.A. 21-3404 and
amendments thereto; or
(6) any conviction for an offense in
effect at any time prior to the
effective date of this act, that is comparable to any crime defined
in this
subsection, or any federal or other state conviction for an offense
that
under the laws of this state would be an offense defined in this
subsection;
or
(7) an attempt, conspiracy or criminal
solicitation, as defined in
K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of an
of-
fense defined in this subsection.
Upon such conviction, the court shall
certify that the person is an of-
fender subject to the provisions of K.S.A. 22-4901
et seq. and amend-
ments thereto and shall include this certification in the
order of commit-
ment. Convictions which result from or are connected with
the same act,
or result from crimes committed at the same time, shall be
counted for
the purpose of this section as one conviction. Any
conviction set aside
pursuant to law is not a conviction for purposes of this
section. A convic-
tion from another state shall constitute a conviction for
purposes of this
section.
(e) ``Law enforcement agency having
jurisdiction'' means the sheriff
of the county in which the offender expects to reside upon the
offender's
discharge, parole or release.
(f) ``Aggravated offenses'' means
engaging in sexual acts involving
penetration with victims of any age through the use of force or
the threat
of serious violence, or engaging in sexual acts involving
penetration with
victims less than 14 years of age, and includes the following
offenses:
(1) Rape as defined in subsection
(a)(1)(A) and subsection (a)(2) of
K.S.A. 1998 Supp. 21-3502, and amendments thereto;
(2) aggravated criminal sodomy as
defined in subsection (a)(1) and
subsection (a)(3)(A) of K.S.A. 21-3506, and amendments thereto;
and
(3) any attempt, conspiracy or
criminal solicitation, as defined in
K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of an
of-
fense defined in subsection (f).
Sec. 30. K.S.A. 22-4903 is hereby
amended to read as follows: 22-
4903. Any person who is required to register as provided in this
act who
violates any of the provisions of this act is guilty of a
class A nonperson
misdemeanor severity level 10, nonperson
felony.
Sec. 31. K.S.A. 1998 Supp. 22-4904
is hereby amended to read as
follows: 22-4904. (a) (1) Except as provided in subsection (a)(2),
within
15 10 days of the offender coming into any
county in which the offender
resides or is temporarily domiciled for more than
15 10 days, the offender
shall register with the sheriff of the county.
(2) Within 15 10
days of the offender coming into any county in which
the offender resides or temporarily resides for more than
15 10 days, any
offender who has provided the information and completed and
signed
the registration form as required in K.S.A. 22-4905 and
amendments
thereto, shall verify with the sheriff of the county that the
sheriff has
received such offender's information and registration form.
(3) For persons required to register as
provided in subsection (a)(1),
the sheriff shall: (A) Explain the duty to register and the
procedure for
registration;
(B) obtain the information required for
registration as provided in
K.S.A. 22-4907 and amendments thereto;
(C) inform the offender that the offender
must give written notice of
any change of address within 10 days of a change in residence to
the law
enforcement agency where last registered and the Kansas bureau of
in-
vestigation;
(D) inform the offender that if the
offender changes residence to
another state, the offender must inform the law enforcement
agency
where last registered and the Kansas bureau of investigation
of such
change in residence and must register in the new state within 10
days of
such change in residence; and
(E) require the offender to read and sign
the registration form which
shall include a statement that the requirements provided in this
subsec-
tion have been explained to the offender.
(4) Such sheriff, within three days of
receipt of the initial registration
shall forward this information to the Kansas bureau of
investigation.
(5) Notwithstanding any other provision
of law, if a diversionary
agreement or probation order, either adult or juvenile, requires
registra-
tion under the Kansas offender registration act then all provisions
of that
act shall apply, except that the term of registration shall be
controlled by
such diversionary agreement or probation order.
(b) (1) If any person required to
register as provided in this act
changes the address of the person's residence, the offender, within
10
days, shall inform in writing the Kansas bureau of investigation of
the new
address.
(2) After receipt of the change of
address, the Kansas bureau of in-
vestigation shall forward this information to the law enforcement
agency
having jurisdiction of the new place of residence within 10 days of
such
receipt of the change of address.
(c) For any person required to register
as provided in this act, every
90 days after the person's initial registration date during the
period the
person is required to register, the following applies:
(1) The Kansas bureau of investigation
shall mail a nonforwardable
verification form to the last reported address of the person.
(2) The person shall mail the
verification form to the Kansas bureau
of investigation within 10 days after receipt of the form.
(3) The verification form shall be signed
by the person, and shall state
that the person still resides at the address last reported to the
Kansas
bureau of investigation.
(4) If the person fails to mail the
verification form to the Kansas
bureau of investigation within 10 days after receipt of the form,
the person
shall be in violation of the Kansas offender registration act.
(5) Nothing contained in this section
shall be construed to alleviate
any person required to register as provided in this act from
meeting the
requirements prescribed in subsection (a)(1), (a)(2) and
(b)(1).
Sec. 32. K.S.A. 1998 Supp. 22-4905
is hereby amended to read as
follows: 22-4905. (a) (1) Any offender, who is discharged or
paroled from
a prison, hospital or other institution or facility involving a
violation of any
crime as provided in subsection (a), (b) or (d) of K.S.A. 22-4902
and
amendments thereto, prior to discharge, parole or release, shall be
in-
formed by the staff of the facility in which the offender was
confined of
the duty to register as provided in this act.
(2) (A) The staff of the facility
shall: (i) Explain the duty to register
and the procedure for registration;
(ii) obtain the information required for
registration as provided in
K.S.A. 22-4907 and amendments thereto;
(iii) inform the offender that the
offender must give written notice
of any change of address within 10 days of a change in residence to
the
law enforcement agency where last registered and the Kansas bureau
of
investigation;
(iv) inform the offender that if the
offender changes residence to
another state, the offender must inform the law enforcement
agency
where last registered and the Kansas bureau of investigation
of such
change in residence and must register in the new state within 10
days of
such change in residence; and
(v) require the offender to read and sign
the registration form which
shall include a statement that the requirements provided in this
subsec-
tion have been explained to the offender.
(B) The staff of the facility shall give
one copy of the form to the
person, within three days, and shall send two copies of the form
provided
by subsection (2)(A)(v) to the Kansas bureau of investigation,
which shall
then forward one copy to the law enforcement agency having
jurisdiction
where the person expects to reside upon discharge, parole or
release. The
Kansas bureau of investigation must immediately ensure that such
infor-
mation is entered in the state law enforcement record system. The
Kansas
bureau of investigation shall transmit such conviction data and
finger-
prints to the federal bureau of investigation.
(b) (1) Any offender who is
released on probation, receives a sus-
pended sentence, sentenced to community corrections or released
on
postrelease supervision because of the commission of any crime as
pro-
vided in subsection (a), (b) or (d) of K.S.A. 22-4902 and
amendments
thereto, prior to release, shall be informed of the offenders duty
to reg-
ister as provided in this act by the court in which the offender is
convicted.
(2) (A) The court shall: (i)
Explain the duty to register and the pro-
cedure for registration;
(ii) obtain the information required for
registration as provided in
K.S.A. 22-4907 and amendments thereto;
(iii) inform the offender that the
offender must give written notice
of any change of address within 10 days of a change in residence to
the
law enforcement agency where last registered and the Kansas bureau
of
investigation;
(iv) inform the offender that if the
offender changes residence to
another state, the offender must inform the law enforcement
agency
where last registered and the Kansas bureau of investigation
of such
change in residence and must register in the new state within 10
days of
such change in residence; and
(v) require the offender to read and sign
the registration form which
shall include a statement that the requirements provided in this
subsec-
tion have been explained to the offender.
(B) The court shall give one copy of the
form to the person and,
within three days, shall send two copies of the form provided by
subsec-
tion (2)(A)(v) to the Kansas bureau of investigation which shall
then for-
ward one copy to the law enforcement agency having jurisdiction
where
the person expects to reside upon release. The Kansas bureau of
inves-
tigation must immediately ensure that such information is entered
in the
state law enforcement record system. The Kansas bureau of
investigation
shall transmit such conviction data and fingerprints to the federal
bureau
of investigation.
Sec. 33. K.S.A. 1998 Supp. 22-4906
is hereby amended to read as
follows: 22-4906. (a) Any person required to register as provided
in this
act shall be required to register: (1) Upon the first conviction of
a sexually
violent crime as defined in subsection (c) of K.S.A. 22-4902 and
amend-
ments thereto, any offense as defined in subsection (a) of K.S.A.
22-4902
and amendments thereto or any offense as defined in subsection (d)
of
K.S.A. 22-4902 and amendments thereto, if not confined, for a
period of
10 years after conviction, or, if confined, for a period of 10
years after
paroled, discharged or released; or (2) upon a second or subsequent
con-
viction for such person's lifetime.
(b) Upon the first conviction, liability
for registration terminates, if
not confined, at the expiration of 10 years from the date of
conviction,
or, if confined, at the expiration of 10 years from the date of
parole,
discharge or release, if the convicted offender does not again
become
liable to register as provided by this act during that period.
(c) On and after July 1, 1999, any
person who has been convicted of
an aggravated offense shall be required to register for such
person's life-
time. The provisions of this subsection shall expire on June 30,
2009.
Sec. 34. K.S.A. 1998 Supp. 22-4908
is hereby amended to read as
follows: 22-4908. (a) Any offender registered as provided in this
act may
apply to the sentencing court for an order relieving the offender
of the
duty of registration, except that no offender may apply as provided
in this
section for an order relieving the offender of the duty of
registration until
such offender has registered for a period of at least 10 years for
each
conviction for which an offender must register as provided by this
act.
The court shall hold a hearing on the application at which the
applicant
and any interested persons may present witnesses and other
evidence.
(b) At such hearing, if the person is a
person who is required to
register due to a conviction of a sexually violent crime as defined
in K.S.A.
22-4902 and amendments thereto, the court shall receive and
consider a
report by a board composed of experts in the field of the behavior
and
treatment of sexual offenders. Such board shall be appointed as
provided
by rules and regulations promulgated by the attorney general. If,
after
the hearing involving such person, the court finds by a
preponderance of
the evidence that the sex offender is rehabilitated and that the
sex of-
fender, does not suffer from a mental abnormality or personality
disorder
that would make the person likely to engage in a predatory sexually
violent
crime, the court shall grant an order relieving the offender of the
duty of
further registration under this act. For purposes of this act,
``mental ab-
normality'' means a congenital or acquired condition affecting the
emo-
tional or volitional capacity which predisposes the person to
commit a
sexually violent crime in a degree constituting such person a
menace to
the health and safety of others.
(c) If, after the hearing involving a
person who is an offender who
was not required to register due to a conviction of a sexually
violent crime
as defined in K.S.A. 22-4902 and amendments thereto, the court
finds by
a preponderance of the evidence that the offender is rehabilitated,
the
court shall grant an order relieving the offender of the duty of
further
registration under this act.
(d) Any person registered as provided in
this act may apply to the
sentencing court for an order relieving such person of the duty of
regis-
tration for any conviction which has been set aside. The court
shall hold
a hearing on the application at which the applicant shall present
evidence
verifying that such applicant's conviction was set aside. If the
court finds
that the person's conviction was set aside, the court shall grant
an order
relieving the person of the duty of further registration under this
act for
any conviction which has been set aside. Such court granting such
an
order shall forward a copy of such order to the sheriff of the
county in
which such person has registered and to the Kansas bureau of
investi-
gation. Upon receipt of such copy of the order, such sheriff and
the Kan-
sas bureau of investigation shall remove such person's name from
the
registry for any conviction which has been set aside. Nothing
contained
in this subsection shall relieve any person of the duty to register
or any
other duty prescribed under this act for any conviction which has
not
been set aside.
(e) Any person required to register as
an offender pursuant to the
Kansas offender registration act, K.S.A. 22-4901 et seq., and
amendments
thereto, who has a second or subsequent conviction for an
offense which
requires registration pursuant to such act, and any person who
has been
convicted of an aggravated offense, shall not be granted an
order relieving
the offender of further registration under this act. The
provisions of this
subsection shall expire on June 30, 2009.
Sec. 35. K.S.A. 1998 Supp. 75-5217,
as amended by section 1 of 1999
House Bill No. 2137, is hereby amended to read as follows: 75-5217.
(a)
At any time during release on parole, conditional release or
postrelease
supervision, the secretary of corrections may issue a warrant for
the arrest
of a released inmate for violation of any of the conditions of
release, or a
notice to appear to answer to a charge of violation. Such notice
shall be
served personally upon the released inmate. The warrant shall
authorize
any law enforcement officer to arrest and deliver the released
inmate to
a place as provided by subsection (f). Any parole officer may
arrest such
released inmate without a warrant, or may deputize any other
officer with
power of arrest to do so by giving such officer a written arrest
and detain
order setting forth that the released inmate, in the judgment of
the parole
officer, has violated the conditions of the inmate's release. The
written
arrest and detain order delivered with the released inmate by the
arresting
officer to the official in charge of the institution or place to
which the
released inmate is brought for detention shall be sufficient
warrant for
detaining the inmate. After making an arrest the parole officer
shall pres-
ent to the detaining authorities a similar arrest and detain order
and
statement of the circumstances of violation. Pending a hearing, as
pro-
vided in this section, upon any charge of violation the released
inmate
shall remain incarcerated in the institution or place to which the
inmate
is taken for detention.
(b) Upon such arrest and detention, the
parole officer shall notify the
secretary of corrections, or the secretary's designee, within five
days and
shall submit in writing a report showing in what manner the
released
inmate had violated the conditions of release. After such
notification is
given to the secretary of corrections, or upon an arrest by warrant
as
herein provided, and the finding of probable cause pursuant to
proce-
dures established by the secretary of a violation of the released
inmate's
conditions of release, the secretary shall cause the released
inmate to be
brought before the Kansas parole board, its designee or designees,
for a
hearing on the violation charged, under such rules and regulations
as the
board may adopt. It is within the discretion of the Kansas parole
board
whether such hearing requires the released inmate to appear
personally
before the board when such inmate's violation results from a
conviction
for a new felony or misdemeanor. An offender under determinant
sen-
tencing whose violation does not result from a conviction of a
new felony
or misdemeanor may waive the right to a final revocation hearing
before
the Kansas parole board under such conditions and terms as may
be
prescribed by rules and regulations promulgated by the Kansas
parole
board. Relevant written statements made under oath shall be
admitted
and considered by the Kansas parole board, its designee or
designees,
along with other evidence presented at the hearing. If the
violation is
established to the satisfaction of the Kansas parole board, the
board may
continue or revoke the parole or conditional release, or enter such
other
order as the board may see fit. Revocations The
revocation of release of
inmates who are on a specified period of postrelease supervision
shall be
for a six-month period of confinement from the date of the
revocation
hearing before the board or the effective date of waiver of such
hearing
by the offender pursuant to rules and regulations promulgated by
the
Kansas parole board, if the violation does not result from a
conviction for
a new felony or misdemeanor. Such period of confinement may be
re-
duced by not more than three months based on the inmate's
conduct,
work and program participating during the incarceration period. The
re-
duction in the incarceration period shall be on an earned basis
pursuant
to rules and regulations adopted by the secretary of
corrections.
(c) If the violation does result from a
conviction for a new felony or
misdemeanor, upon revocation the inmate shall serve the entire
remain-
ing balance of the period of postrelease supervision even if the
new con-
viction did not result in the imposition of a new term of
imprisonment.
(d) In the event the released inmate
reaches conditional release date
as provided by K.S.A. 22-3718 and amendments thereto after a
finding
of probable cause, pursuant to procedures established by the
secretary of
corrections of a violation of the released inmate's conditions of
release,
but prior to a hearing before the Kansas parole board, the
secretary of
corrections shall be authorized to detain the inmate until the
hearing by
the Kansas parole board. The secretary shall then enforce the order
issued
by the Kansas parole board.
(e) If the secretary of corrections
issues a warrant for the arrest of a
released inmate for violation of any of the conditions of release
and the
released inmate is subsequently arrested in the state of Kansas,
either
pursuant to the warrant issued by the secretary of corrections or
for any
other reason, the released inmate's sentence shall not be credited
with
the period of time from the date of the issuance of the secretary's
warrant
to the date of the released inmate's arrest.
If a released inmate for whom a warrant has
been issued by the sec-
retary of corrections for violation of the conditions of release is
subse-
quently arrested in another state, and the released inmate has been
au-
thorized as a condition of such inmate's release to reside in or
travel to
the state in which the released inmate was arrested, and the
released
inmate has not absconded from supervision, the released inmate's
sen-
tence shall not be credited with the period of time from the date
of the
issuance of the warrant to the date of the released inmate's
arrest. If the
released inmate for whom a warrant has been issued by the secretary
of
corrections for violation of the conditions of release is
subsequently ar-
rested in another state for reasons other than the secretary's
warrant and
the released inmate does not have authorization to be in the other
state
or if authorized to be in the other state has been charged by the
secretary
with having absconded from supervision, the released inmate's
sentence
shall not be credited with the period of time from the date of the
issuance
of the warrant by the secretary to the date the released inmate is
first
available to be returned to the state of Kansas. If the released
inmate for
whom a warrant has been issued by the secretary of corrections for
vio-
lation of a condition of release is subsequently arrested in
another state
pursuant only to the secretary's warrant, the released inmate's
sentence
shall not be credited with the period of time from the date of the
issuance
of the secretary's warrant to the date of the released inmate's
arrest,
regardless of whether the released inmate's presence in the other
state
was authorized or the released inmate had absconded from
supervision.
The secretary may issue a warrant for the
arrest of a released inmate
for violation of any of the conditions of release and may direct
that all
reasonable means to serve the warrant and detain such released
inmate
be employed including but not limited to notifying the federal
bureau of
investigation of such violation and issuance of warrant and
requesting
from the federal bureau of investigation any pertinent information
it may
possess concerning the whereabouts of the released inmate.
(f) Law enforcement officers shall
execute warrants issued by the
secretary of corrections pursuant to subsection (a) or (d), and
shall deliver
the inmate named in the warrant to the jail used by the county
where the
inmate is arrested unless some other place is designated by the
secretary,
in the same manner as for the execution of any arrest warrant.
(g) For the purposes of this section, an
inmate or released inmate is
an individual under the supervision of the secretary of
corrections, in-
cluding, but not limited to, an individual on parole, conditional
release,
postrelease supervision, probation granted by another state or an
individ-
ual supervised under any interstate compact in accordance with the
pro-
visions of the uniform act for out-of-state parolee supervision,
K.S.A. 22-
4101 et seq. and amendments thereto.
New Sec. 36. Nothing in the Kansas
offender registration act shall
create a cause of action against the state or an employee of the
state acting
within the scope of the employee's employment as a result of
requiring
an offender to register or an offender's failure to register.
New Sec. 37. (a) Any offender who
was required to be registered
pursuant to the Kansas offender registration act K.S.A. 22-4901
et seq.
and amendments thereto, prior to July 1, 1999, and who would not
have
been required to be registered pursuant to the Kansas offender
registra-
tion act on and after July 1, 1999, as a result of enactment of
this act,
shall be entitled to be relieved of the requirement to be
registered. Such
offender may apply to the sentencing court for an order relieving
the
offender of the duty of registration. The court shall hold a
hearing on the
application at which the applicant shall present evidence verifying
that
such applicant no longer satisfies the definition of offender
pursuant to
K.S.A. 22-4902 and amendments thereto. If the court finds that the
per-
son no longer satisfies the definition of offender pursuant to
K.S.A. 22-
4902 and amendments thereto, the court shall grant an order
relieving
the offender's duty to register if the offender no longer fulfills
the defi-
nition of offender pursuant to K.S.A. 22-4902 and amendments
thereto.
Such court granting such an order shall forward a copy of such
order to
the sheriff of the county in which such person has registered and
to the
Kansas bureau of investigation. Upon receipt of such copy of the
order,
such sheriff and the Kansas bureau of investigation shall remove
such
person's name from the registry.
(b) This section shall be part of an
supplemental to the Kansas of-
fender registration act.
New Sec. 38. (a) Unlawful voluntary
sexual relations is engaging in
voluntary: (1) Sexual intercourse; (2) sodomy; or (3) lewd fondling
or
touching with a child who is 14 years of age but less than 16 years
of age
and the offender is less than 19 years of age and less than four
years of
age older than the child and the child and the offender are the
only parties
involved and are members of the opposite sex.
(b) (1) Unlawful voluntary sexual
relations as provided in subsection
(a)(1) is a severity level 8, person felony.
(2) Unlawful voluntary sexual relations
as provided in subsection
(a)(2) is a severity level 9, person felony.
(3) Unlawful voluntary sexual relations
as provided in subsection
(a)(3) is a severity level 10, person felony.
Sec. 39. K.S.A. 21-3435, 21-3520,
21-3705, 21-3731, 21-4605, 21-
4635, 21-4638, 22-4001, 22-4003, 22-4006, 22-4009, as amended by
sec-
tion 35 of 1999 House Bill No. 2206, 22-4011, 22-4012, 22-4013,
22-
4014, 22-4015 and 22-4903 and K.S.A. 1998 Supp. 8-262, 8-287,
21-2511,
21-3204, 21-3402, 21-3413, 21-3810, 21-4201, 21-4603d, 21-4704,
21-
4706, 21-4711, 22-3717, 22-4902, 22-4904, 22-4905, 22-4906,
22-4908
and 75-5217, as amended by section 1 of 1999 House Bill No. 2137,
are
hereby repealed.
Sec. 40. This act shall take effect
and be in force from and after its
publication in the statute book.
Approved May 13, 1999.
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