CHAPTER 186 HOUSE BILL No. 2296 An  Act concerning written instruments; relating to forgery; worthless checks; amending
K.S.A. 21-3710 and K.S.A. 2000 Supp. 21-4704 and 60-2610 and repealing the existing
sections.
Be it enacted by the Legislature of the State of Kansas:

      Section  1. On and after July 1, 2001, K.S.A. 21-3710 is hereby
amended to read as follows: 21-3710. (a) Forgery is knowingly and with
intent to defraud:

      (1) Making, altering or endorsing any written instrument in such
manner that it purports to have been made, altered or endorsed by an-
other person, either real or fictitious, and if a real person without the
authority of such person; or altering any written instrument in such man-
ner that it purports to have been made at another time or with different
provisions without the authority of the maker thereof; or making, altering
or endorsing any written instrument in such manner that it purports to
have been made, altered or endorsed with the authority of one who did
not give such authority;

      (2) issuing or delivering such written instrument knowing it to have
been thus made, altered or endorsed; or

      (3) possessing, with intent to issue or deliver, any such written in-
strument knowing it to have been thus made, altered or endorsed.

      (b)  (1) Forgery is a severity level 8, nonperson felony.

      (2) On a first conviction of a violation of this section, in addition to
any other sentence imposed, a person shall be fined the lesser of the
amount of the forged instrument or $500.

      (3) On a second conviction of a violation of this section, a person shall
be required to serve at least 30 days' imprisonment as a condition of
probation, and fined the lesser of the amount of the forged instrument or
$1,000.

      (4) On a third or subsequent conviction of a violation of this section,
a person shall be required to serve at least 45 days' imprisonment as a
condition of probation, and fined the lesser of the amount of the forged
instrument or $2,500.

      (5) The person convicted shall not be eligible for release on probation,
suspension or reduction of sentence or parole until the person has served
the mandatory sentence as provided herein.

      (c) In any prosecution under this section, it may be alleged in the
complaint or information that it is not known whether a purported person
is real or fictitious, and in such case there shall be a rebuttable presump-
tion that such purported person is fictitious.

      Sec.  2. On and after July 1, 2001, K.S.A. 2000 Supp. 21-4704 is
hereby amended to read as follows: 21-4704. (a) For purposes of sen-
tencing, 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 (c)(3) of K.S.A. 21-3412, and amendments thereto
shall be as provided by the specific mandatory sentencing requirements
of that section and shall not be subject to the provisions of this section or
K.S.A. 21-4707 and amendments thereto. If because of the offender's
criminal history classification the offender is subject to presumptive im-
prisonment or if the judge departs from a presumptive probation sentence
and the offender is subject to imprisonment, the provisions of this section
and K.S.A. 21-4707, and amendments thereto, shall apply and the of-
fender shall not be subject to the mandatory sentence as provided in K.S.A.
21-3710, and amendments thereto. Notwithstanding 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 (c)(3) of K.S.A. 21-3412
and subsections (b)(2) and (b)(3) of K.S.A. 21-3710, 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 another
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.  3. K.S.A. 2000 Supp. 60-2610 is hereby amended to read as
follows: 60-2610. (a) If a person gives a worthless check, as defined by
subsection (g), the person shall be liable to the holder of the check for
the amount of the check, the incurred court costs, the costs of restricted
mail and the incurred service charge, interest at the statutory rate and
the costs of collection including but not limited to reasonable attorney
fees, plus an amount equal to the greater of the following:

      (1) Damages equal to three times the amount of the check but not
exceeding the amount of the check by more than $500; or

      (2) $100.

      The court may waive all or part of the attorney fees provided for by
this subsection, if the court finds that the damages and other amounts
awarded are sufficient to adequately compensate the holder of the check.
In the event the court waives all or part of the attorney fees, the court
shall make written findings of fact as to the specific reasons that the
amounts awarded are sufficient to adequately compensate the holder of
the check.

      (b) The amounts specified by subsection (a) shall be recoverable in a
civil action brought by or on behalf of the holder of the check only if: (1)
Not less than 14 days before filing the civil action, the holder of the check
made written demand on the maker or drawer for payment of the amount
of the check and, the incurred service charge and the costs of restricted
mail accrued interest; and (2) the maker or drawer failed to tender to the
holder, prior to the filing of the action, an amount not less than the
amount demanded.

      The written demand shall be sent by restricted mail, as defined by
subsection (g) first class mail, to the person to be given notice at such
person's address as it appears on such check, draft or order or to the last
known address of the maker or drawer and. The written demand shall
include notice that, if the money is not paid within 14 days, triple damages
in addition to an amount of money equal to the sum of the amount of
the check, the incurred court costs, service charge, costs of restricted mail
and court costs, accrued interest, the costs of collection, including but not
limited to, reasonable attorney fees unless the court otherwise orders,
may be incurred by the maker or drawer of the check.

      Notice required by subsection (b)(1) shall state the exact amount and
date due, as well as an estimate of the amount that may be incurred if
the amount demanded is not paid by the specified date.

      (c) Subsequent to the filing of an action under this section but prior
to the commencement of a dispositional hearing by the court, the de-
fendant may tender to the plaintiff as satisfaction of the claim, an amount
of money equal to the sum of the amount of the check, the incurred court
costs, service charge, costs of restricted mail and accrued interest, the
costs of collection, including, but not limited to, reasonable attorney fees
and court costs. The plaintiff shall include in the petition a statement
alleging that the defendant may tender such amount as satisfaction of the
claim as provided in this subsection. If the amount alleged in the petition
is tendered to the plaintiff in full satisfaction of the debt prior to the
commencement of the dispositional hearing by the court, the case shall
be dismissed by the plaintiff. For purposes of this subsection only, the
amount tendered as satisfaction of the claim shall not include triple dam-
ages or damages of $100 as provided in subsections (a)(1) and (2). For
purposes of this subsection, a dispositional hearing means a trial or other
hearing by the court in which the plaintiff is seeking the entry of judgment
against the defendant. The court may waive all or part of the attorney
fees provided for by this subsection, if the court finds that the damages
and other amounts awarded are sufficient to adequately compensate the
holder of the check. In the event the court waives all or part of the
attorney fees, the court shall make written findings of fact as to the spe-
cific reasons that the amounts awarded are sufficient to adequately com-
pensate the holder of the check.

      (d) If the trier of fact determines that the failure of the defendant to
satisfy the dishonored check was due to economic hardship, the court
may waive all or part of the damages provided for by this section, but the
court shall render judgment against defendant for not less than the
amount of the dishonored check, the incurred court costs, service charge,
costs of restricted mail and the costs of collection, including but not lim-
ited to reasonable attorney fees, unless otherwise provided in this sub-
section. The court may waive all or part of the attorney fees provided for
by this subsection, if the court finds that the damages and other amounts
awarded are sufficient to adequately compensate the holder of the check.
In the event the court waives all or part of the attorney fees, the court
shall make written findings of fact as to the specific reasons that the
amounts awarded are sufficient to adequately compensate the holder of
the check.

      (e) Any amount previously paid as restitution or reparations to the
holder of the check by or on behalf of its maker or drawer shall be credited
against the amount for which the maker or drawer is liable under sub-
section (a).

      (f) Conviction of giving a worthless check or habitually giving a worth-
less check, as defined by K.S.A. 21-3707 and 21-3708, and amendments
thereto, shall not be a prerequisite or bar to recovery pursuant to this
section.

      (g) The service charge on a check which is dishonored by the drawee
because the maker or drawer had no deposits in or credits with the drawee
or has not sufficient funds in, or credits with, the drawee for the payment
of each check, order or draft in full upon its presentation, shall not exceed
$30.

      (g) (h) As used in this section:

      (1) ,``giving a worthless check'' means the making, drawing, issuing
or delivering or causing or directing the making, drawing, issuing or de-
livering of any check, order or draft on any bank, credit union, savings
and loan association or depository for the payment of money or its equiv-
alent:

      (A) (1) With intent to defraud or in payment for a preexisting debt;
and or

      (B) (2) Which is dishonored by the drawee because the maker or
drawer had no deposits in or credits with the drawee or has not sufficient
funds in, or credits with, the drawee for the payment of such check, order
or draft in full upon its presentation.; and

      (3) for which the maker or drawer has not tendered to the holder's
agent the amount of money demanded and within the time allowed by the
demand required in subsection (b).

      (2) ``Restricted mail'' means mail which carries on its face the en-
dorsements ``restricted mail'' and ``deliver to addressee only.''

      (3) ``Service charge'' means $10, or subject to limitations contained
in this subsection, if a larger amount is posted conspicuously, the larger
amount. In no event shall the amount of such insufficient check service
charge exceed $30.

 Sec.  4. K.S.A. 2000 Supp. 60-2610 is hereby repealed.

      Sec.  5. On and after July 1, 2001, K.S.A. 21-3710 and K.S.A. 2000
Supp. 21-4704 are hereby repealed.
 Sec.  6. This act shall take effect and be in force from and after its
publication in the Kansas register.

Approved May 21, 2001.
 Published in the Kansas Register May 24, 2001.
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