21-4718. Departure sentencing; hearing; notice; findings of fact and conclusions of law; order; upward durational departure sentencing, procedures and jury requirements.
21-4718
21-4718. Departure sentencing; hearing; notice;findings of fact and conclusions of law; order; upward durational departuresentencing, procedures and jury requirements.(a) (1) Whenever a person is convicted of a felony, the court upon motion ofeither the defendant or the state, shall hold a hearing to considerimposition of a departure sentence other than an upward durational departuresentence. The motion shall state the type ofdeparture sought and the reasons and factors relied upon. The hearing shallbe scheduled so that theparties have adequate time to prepare and present arguments regarding theissues of departure sentencing.The victim of a crime or the victim's family shall be notified of the right tobe present at the hearing for the convicted person by the county or districtattorney. The parties may submit written arguments to the court prior to thedate of the hearing and may make oral arguments before thecourt at the hearing. The court shall review the victim impactstatement. Prior to the hearing, the court shall transmitto the defendant or the defendant's attorney and the prosecuting attorneycopies of the presentence investigation report.
(2) At the conclusion of the hearing or within 20 daysthereafter, the court shall issue findings of fact and conclusions of lawregarding the issues submitted by the parties, and shall enter an appropriateorder.
(3) If the court decides to depart on its own volition,without a motionfrom the state or the defendant, the court must notify all parties of itsintent and allow reasonable time for either party to respond ifrequested.The notice shall state the type of departure intended by the court and thereasons and factors relied upon.
(4) In each case in which the court imposes a sentence thatdeviates fromthe presumptive sentence, the court shall make findings of fact as to thereasons for departure as provided in this subsection regardless ofwhether a hearing is requested.
(b) (1) Uponmotion of the county or district attorney to seek an upward durationaldeparture sentence, the court shall consider imposition of such upwarddurational departure sentence in the manner provided in subsection (b)(2).The county or district attorney shall file such motion to seek an upwarddurational departure sentence not less than 30days prior to the date of trial or if the trial date is to take place in lessthan 30 days then within five daysfrom the date of the arraignment.
(2) The court shall determine if the presentation of any evidenceregarding the alleged fact or factors that may increase the penalty for a crimebeyond the statutory maximum, other than a prior conviction, shall bepresented to a jury and proved beyond a reasonable doubt during the trial ofthe matter or following the determination of the defendant's innocence orguilt.
(3) If the presentation of the evidence regarding the alleged fact or factorsissubmitted to the jury during the trial of the matter as determined by thecourt, then the provisions ofsubsections (b)(5), (b)(6) and (b)(7) shall be applicable.
(4) If the court determines it is in the interest of justice, the courtshall conduct a separate departure sentence proceeding to determine whether thedefendant may be subject to an upward durational departure sentence.Suchproceeding shall be conducted by the court before the trial jury as soon aspracticable. If any person who served on the trial jury is unable to serve onthe jury for the upward durational departure sentence proceeding, the courtshall substitute an alternate juror who has been impaneled for the trial jury.If there are insufficient alternate jurors to replace trial jurors who areunable to serve at the upward durational departure sentence proceeding, thecourt may conduct such upward durational departure sentence proceeding before ajury which may have 12 or less jurors, but atno time less than six jurors. Any decision of an upward durational departuresentence proceeding shall be decided by a unanimous decision of the jury.Jury selectionprocedures, qualifications of jurors and grounds for exemption or challenge ofprospective jurors in criminal trials shall be applicable to the selection ofsuch jury. The jury at the upward durational departure sentenceproceeding may be waived in the manner provided by K.S.A. 22-3403, andamendments thereto, for waiver of a trial jury. If the jury at the upwarddurational departure sentence proceeding has been waived or the trial jury hasbeen waived, the upward durational departure sentence proceeding shall beconducted by the court.
(5) In the upward durational departure sentence proceeding, evidencemay be presented concerning any matter that the court deems relevant to thequestion of determining if any specific factors exist that may serve to enhancethe maximum sentence as provided by K.S.A. 21-4716 or 21-4717, and amendmentsthereto. Only such evidence as the state has made known to thedefendant prior to the upward durational departure sentence proceeding shall beadmissible, andnoevidence secured in violation of the constitution of the United States or ofthe state of Kansas shall be admissible. No testimony by the defendant at theupward durational departure sentence proceeding shall be admissible against thedefendant at any subsequent criminal proceeding. At the conclusion of theevidentiary presentation, the court shall allow the parties a reasonableperiod of time in which to present oral arguments.
(6) The court shall provide oral and written instructions to the jury toguide its deliberations.
(7) If, by unanimous vote, the jury finds beyond a reasonable doubt that oneor more specific factors exist that may serve to enhance the maximum sentence,the defendant may be sentenced pursuant to K.S.A. 21-4716 through 21-4719, andamendmentsthereto; otherwise, the defendant shall be sentenced as provided by law. Thejury, if its verdict is a unanimous recommendation that one or more of thespecific factors that may serve to enhance the maximum sentence exists, shalldesignate in writing, signed by the foreman of the jury, the specific factor orfactors which the jury found beyond a reasonable doubt. If, after a reasonabletime for deliberation, the jury is unable to reach a verdict of finding any ofthe specific factors, the court shall dismiss the jury and shall only impose asentence as provided by law. In nonjury cases, the court shall follow therequirements of this subsection in determining if one or more of the specificfactors exist that may serve to enhance the maximum sentence.
History: L. 1992, ch. 239, § 18;L. 1993, ch. 291, § 264;L. 1994, ch. 291, § 58;L. 2002, ch. 170, § 2; June 6.