As used in this Article 7, inclusive:
City Attorney of Mission Woods, Kansas.
Complaint issued in the Municipal Court of Mission Woods.
Referral of a defendant in a case before the Municipal Court
to a supervised performance program prior to adjudication.
The specification of formal terms and conditions which a
defendant must fulfill in order to have the charges against him or
her dismissed.
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Ref. K.S.A. 22-2906.
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(a)
After a complaint has been filed charging a defendant with the violation of an ordinance and prior to conviction thereof, and after the City Attorney has considered the factors listed in Section 10-703, if it appears to the City Attorney that diversion of the defendant would be in the interests of justice and of benefit to the defendant and the community, the City Attorney may propose a diversion agreement to the defendant. The terms of each diversion agreement shall be established by the City Attorney in accordance with 10-704. Ref. K.S.A. 22-2907.
(b)
The City Attorney shall adopt written policies and guidelines for
the implementation of a diversion program in accordance with this
ordinance. Such policies and guidelines shall provide for a diversion
conference and other procedures in those cases where the City Attorney
elects to offer diversion in lieu of further proceedings on the complaint.
(c)
Each defendant shall be informed in writing of the diversion program
and the policies and guidelines adopted by the City Attorney. The
City Attorney may require any defendant requesting diversion to provide
information regarding prior criminal charges, education, work experience
and training, family, residence in the community, medical history,
including any psychiatric or psychological treatment or counseling,
and other information relating to the diversion program. In all cases,
the defendant shall be present and shall have the right to be represented
by counsel at the diversion conference with the City Attorney. Ref.
K.S.A. 22-2907,
In determining whether diversion of a defendant is in the interests
of justice and of benefit to the defendant and the community, the
City Attorney shall consider at least the following factors among
all factors considered:
(a)
The nature of the violation charged and the circumstances surrounding
it;
(b)
Any special characteristics or circumstances of the defendant;
(c)
Whether the defendant is a first-time offender and if the defendant
has previously participated in diversion, according to the records
available to the City Attorney;
(d)
Whether there is a probability that the defendant will cooperate
with and benefit from diversion;
(e)
Whether the available diversion program is appropriate to the needs
of the defendant;
(f)
The impact of the diversion of the defendant upon the community;
(g)
Recommendations, if any, of the involved law enforcement agency;
(h)
Recommendations, if any, of the victim;
(i)
Provisions for restitution; and
(j)
Any mitigating circumstances.
Ref. K.S.A. 22-2908.
(a)
A diversion agreement shall provide that if the defendant fulfills
the obligations of the program described therein, as determined by
the City Attorney, the City Attorney shall act to have the charges
against the defendant dismissed with prejudice. The diversion agreement
shall include specifically the waiver of all rights under the law
or the constitution of Kansas or of the United States to a speedy
arraignment, preliminary examinations and hearings, and a speedy trial.
The diversion agreement may include, but is not limited to, provisions
concerning payment of restitution, including court costs and diversion
costs, residence in a specified facility, maintenance of gainful employment,
and participation in programs offering medical, educational, vocational,
social and psychological services corrective and preventive guidance
and other rehabilitative services.
(b)
If the City Attorney elects to offer diversion in lieu of further
criminal proceedings on the complaint and the defendant agrees to
all of the terms of the proposed agreement, the diversion agreement
shall be filed with the Municipal Court and the Municipal Court shall
stay further proceedings on the complaint. If the defendant declines
to accept diversion, the Municipal court shall resume the proceedings
on the complaint.
No defendant shall be required to enter any plea to a charge as a condition for diversion. No statements made by the defendant or counsel in any diversion conference or in any other discussion of a proposed diversion agreement shall be admissible as evidence in proceedings on violations charged or facts alleged in the complaint. Except for sentencing proceedings, the following shall not be admissible as evidence in proceedings which are resumed under Section 10-706:
(a)
If the City Attorney finds at the termination of the diversion period
or any time prior thereto that the defendant has failed to fulfill
the terms of the specific diversion agreement, the City Attorney shall
inform the municipal court of such finding and the municipal court,
after finding that the defendant has failed to fulfill the terms of
the specific diversion agreement at a hearing thereon, shall resume
the proceedings on the complaint.
(b)
If the defendant has fulfilled the terms of the diversion agreement,
the municipal court shall dismiss with prejudice the charges filed
against the defendant. Ref. K.S.A. 29-2911.
