Adult Criminal Diversion
CRIMINAL DIVERSION PROGRAM GUIDELINES
Pursuant to the provision of K.S.A. 22-2906 et seq., the Leavenworth County Attorney hereby adopts and promulgates guidelines and criteria for a Pretrial Diversion Program.
In determining whether or not diversion or prosecution is warranted in a specific case where the evidence indicates that an individual has committed a crime, this office will address the needs of: a) Public Safety b) the Victim c) the Offender.
The County Attorney’s Office supports policies, which lead to the rehabilitation of offenders. However, the County Attorney recognizes that the needs of the offender must be considered subordinate to the needs of public safety and rights of victims. Victims will be contacted regarding the offer of diversion prior to signing of an agreement.
Diversion is a privilege and not a right. There is no presumption in favor of diversion in any case. The burden of the persuasion falls on the offender to establish that diversion will serve the best ends of justice and interest of the community.
The offender must submit a written application for diversion. The application will help in providing background information to determine if the offender is a suitable candidate for consideration. This form is available in the County Attorneys Office, or at the Diversion Office located at 601 S. 3rd Street, Suite 3069.
A ) ELIGIBILITY CRITERIA
In order to be considered for diversion, the offender must establish that:
1 . The offense is the defendant’s first serious criminal act/offense.
2 . The offense is non-violent in nature.
3 . The defendant has the ability to pay restitution to victims, through a reasonable restitution payment schedule, if applicable to the offense.
4 . There is a probability that the defendant will cooperate with and benefit from diversion.
5 . A defendant’s application for diversion may be denied if not submitted within 30 days of the first appearance.
B ) DIVERSION CRITERIA
In determining whether or not diversion is in the best interest of justice and of benefit to the community and the defendant, the County Attorney’s office will evaluate:
1 . The nature of the crime committed, and all mitigating circumstances.
2 . Whether or not the defendant is a first time offender, or has ever participated in any diversionary program, or has been on probation.
3 . Any special characteristics of the defendant.
4 . The impact of the diversion of the community area.
5 . The input and recommendations, if any, of the victims involved.
6 . The input and recommendations, if any, of the involved law enforcement.
7 . The total dollar amount of restitution owed, and the provisions to pay.
8 . The probability of compliance with all of the provisions to pay.
9 . Whether the proposed program is adequate and appropriate for the defendant. Whether the defendant evidences a genuine sense of remorse and is prepared to accept and acknowledge accountability for the consequences of the crime committed, and the probability of cooperation with the justice system.
C) DIVERSION REQUIREMENTS
When entering into a diversion agreement, the Defendant will be required to waive any and all rights arising under the laws and or the Constitution of Kansas and the United States to the speedy filing of Charges and a speedy trial and all proceedings incidental thereto. The agreement may include, but is not limited to provisions for:
1. Payment of restitution to the victims or crimes, or the community.
2. Payment of all Court Costs and Diversion Fees.
3. Residence in a specified facility or at a specified location.
4. Maintenance of gainful employment.
5. Avoidance of specified locations or associates.
6. Moderation or abstinence in the consumption of alcoholic beverages.
7. Strict compliance with all Federal, State and local laws.
8. Satisfactory participation in a designated medical, educational, vocational, social rehabilitation or psychological counseling programs.
9. Any other conditions deemed appropriate by the County Attorney.
Unfiled Diversion may be offered to Defendants who have absolutely no prior diversions and/or convictions and are charged with the following misdemeanor offenses;
Unfiled Diversion is not always automatically approved. A conference may be set at a later date after the file is reviewed. If a case falls within the guidelines for Unfiled Diversion, it may be approved or denied by the Diversion Officer with signature by the Assistant County Attorney. Any case involving a loss of over $10,000.00 requires proof of ability to pay restitution.
Defendants are prohibited from applying for Diversion if charged with the following:
Off-Grid Felonies, i.e. Pre-Mediated Murder, Jessica’s Law Offenses
Felonies – Level 1-6
Identity Theft and/or Identity Fraud
Felony Sex Offenses
Drug Cases – Level 1, 2, 3 and felony possession over 1 gram
DUI Cases with any prior DUI diversions and/or convictions
DUI Cases involving any injuries
DUI Cases with children present in the vehicle
In addition, Defendant with charges pending in other municipal, state, or federal jurisdictions will not be considered for Diversion.
THE COUNTY ATTORNEY MAY APPROVE OR DENY ANY DIVERSION APPLICATION IN THEIR SOLE DISCRETION FOR ANY LAWFUL REASON.
The Defendant or the Defense Attorney must make an appointment with the Diversion Officer in order for a meeting to take place. If the offense is related to writing worthless checks, the appointment must be made with Dianna Miller, Diversion Officer. The office is located at 601 S. 3rd Street. The telephone number is 913-684-0771. All of the facts and pertinent information will be reviewed at this conference. After due consideration, a recommendation will be made to the County Attorney, advising whether or not the defendant is eligible and suitable for diversion. The County Attorney will then make the final decision in the disposition of the case.
The terms of the diversion agreement will be reduced in writing, and upon approval of all parties involved, the agreement will be filed with the District Court pursuant to statute. Upon satisfactory completion of the term, and all provisions of the diversion agreement, the County Attorney will move to have the charges against the defendant dismissed with prejudice.
If the Defendant fails to comply with all of the provisions of the agreement, the County Attorney will revoke the agreement. Criminal prosecution will then proceed against the Defendant at the point that diversion began, or will file charges against the offender who has not been charged.