22-3716. Arrest for violating condition of probation, assignment to community corrections, suspension of sentence or nonprison sanction, procedure; time limitation on issuing warrant; limitations on s
22-3716
22-3716. Arrest for violating condition ofprobation, assignment to community corrections, suspension of sentence ornonprison sanction, procedure; time limitation on issuing warrant; limitationson serving sentence in department of corrections' facility or serving period ofpostrelease supervision, exceptions.(a) At any time during probation, assignment to a community correctionalservices program, suspension of sentence or pursuant to subsection (d) fordefendants who committed a crime prior to July 1, 1993, and at any time duringwhich a defendant is serving a nonprison sanction for a crime committed on orafter July 1, 1993, or pursuant to subsection (d), the court may issue awarrant for the arrest of a defendant for violation of any of the conditions ofrelease or assignment, a notice to appear to answer to a charge of violation ora violation of the defendant's nonprison sanction. The notice shall bepersonally served upon the defendant. The warrant shall authorize all officersnamed in the warrant to return the defendant to the custody of the court or toany certified detention facility designated by the court. Any court servicesofficer or community correctional services officer may arrest the defendantwithout a warrant or may deputize any other officer with power of arrest to doso by giving the officer a written or verbal statement settingforth that the defendanthas, in the judgment of the court services officer or community correctionalservices officer, violated the conditions of the defendant's release or anonprison sanction. A written statement delivered to the official incharge of a county jail or other placeofdetention shall be sufficient warrant for the detention of the defendant. Aftermaking an arrest, the court services officer or community correctional servicesofficer shall present to the detaining authorities a similar statement of thecircumstances of violation. Provisions regarding release on bail of personscharged with a crime shall be applicable to defendants arrested under theseprovisions.
(b) Upon arrest and detention pursuant to subsection (a), the court servicesofficer or community correctional services officer shall immediately notify thecourt and shall submit in writing a report showing in what manner the defendanthas violated the conditions of release or assignment or a nonprison sanction.Thereupon, or upon an arrest by warrant as provided in this section, the courtshall cause the defendant to be brought before it without unnecessary delay fora hearing on the violation charged. The hearing shall be in open court and thestate shall have the burden of establishing the violation. The defendant shallhave the right to be represented by counsel and shall be informed by the judgethat, if the defendant is financially unable to obtain counsel, an attorneywill be appointed to represent the defendant. The defendant shall have theright to present the testimony of witnesses and other evidence on thedefendant's behalf. Relevant written statements made under oath may be admittedand considered by the court along with other evidence presented at the hearing.Except as otherwise provided, if the violation is established, the courtmay continue or revoke the probation, assignment to a community correctionalservices program, suspension of sentence or nonprison sanction and may requirethe defendant to serve the sentence imposed, or any lesser sentence, and, ifimposition of sentence was suspended, may impose any sentence which mightoriginally have been imposed. Except as otherwise provided, no offender forwhom a violation of conditions of release or assignment or a nonprison sanctionhas been established as provided in this section shall be required to serve anytime for the sentence imposed or which might originally have been imposed in astate facility in the custody of the secretary of corrections for suchviolation, unless such person has already at least one prior assignment to acommunity correctional services program related to the crime for which theoriginal sentence was imposed, except these provisions shall not apply tooffenders who violate a condition of release or assignment or a nonprisonsanction by committing a new misdemeanor or felony offense. The provisionsof this subsection shall not apply to adult felony offenders as described insubsection (a)(3) of K.S.A. 75-5291, and amendmentsthereto. The court mayrequire an offender for whom a violation of conditions of release or assignmentor a nonprison sanction has been established as provided in this section toserve any time for the sentence imposed or which might originally have beenimposed in a state facility in the custody of the secretary of correctionswithout a prior assignment to a community correctional services program if thecourt finds and sets forth with particularity the reasons for finding that thesafety of the members of the public will be jeopardized or that the welfare ofthe inmate will not be served by such assignment to a community correctionalservices program. When a new felony is committed while the offender is onprobation or assignment to a community correctional services program, the newsentence shall be imposed pursuant to the consecutive sentencing requirementsof K.S.A. 21-4608 and amendments thereto, and the court may sentence theoffender to imprisonment for the new conviction, even when the new crime ofconviction otherwise presumes a nonprison sentence. In this event, impositionof a prison sentence for the new crime does not constitute a departure.
(c) A defendant who is on probation, assigned to a community correctionalservices program, under suspension of sentence or serving a nonprison sanctionand for whose return a warrant has been issued by the court shall be considereda fugitive from justice if it is found that the warrant cannot be served. If itappears that the defendant has violated the provisions of the defendant'srelease or assignment or a nonprison sanction, the court shall determinewhether the time from the issuing of the warrant to the date of the defendant'sarrest, or any part of it, shall be counted as time served on probation,assignment to a community correctional services program, suspended sentence orpursuant to a nonprison sanction.
(d) The court shall have 30 days following the date probation, assignment toa community correctional service program, suspension of sentence or a nonprisonsanction was to end to issue a warrant for the arrest or notice to appear forthe defendant to answer a charge of a violation of the conditions of probation,assignment to a community correctional service program, suspension of sentenceor a nonprison sanction.
(e) Notwithstanding the provisions of any other law to the contrary, anoffender whose nonprison sanction is revoked and a term of imprisonment imposedpursuant to either the sentencing guidelines grid for nondrug or drug crimesshall not serve a period of postrelease supervision upon the completion of theprison portion of that sentence. The provisions of this subsection shall notapply to offenders sentenced to a nonprison sanction pursuant to adispositional departure, whose offense falls within a border box of either thesentencing guidelines grid for nondrug or drug crimes, offenders sentenced fora "sexually violent crime" or a "sexually motivated crime" as defined byK.S.A. 22-3717, and amendmentsthereto,offenders sentenced pursuant to K.S.A. 21-4704, and amendments thereto,wherein the sentence is presumptive imprisonment but a nonprison sanction maybe imposed without a departure or offenderswhose nonprison sanction was revoked as a result of a convictionfor a new misdemeanor or felony offense. The provisions of this subsectionshall not apply to offenders who are serving or are to begin serving a sentencefor any other felony offense that is not excluded from postrelease supervisionby this subsection on the effective date of this subsection. The provisions ofthis subsection shall be applied retroactively. The department of correctionsshall conduct a review of all persons who are in the custody of the departmentas a result of only a revocation of a nonprison sanction. On or beforeSeptember 1, 2000, the department shall have discharged from postreleasesupervision those offenders as required by this subsection.
(f) Offenders who have been sentenced pursuant to K.S.A.21-4729,andamendments thereto, and who subsequently violate a condition of the drug andalcohol abusetreatment program shall be subject to an additional nonprison sanction for anysuch subsequent violation. Suchnonprison sanctions shall include, but not be limited to, up to 60 days in acounty jail, fines, community service, intensified treatment, house arrest andelectronic monitoring.
History: L. 1970, ch. 129, § 22-3716;L. 1972, ch. 317, § 89;L. 1984, ch. 112, § 9;L. 1986, ch. 123, § 24;L. 1990, ch. 112, § 1;L. 1992, ch. 239, § 301;L. 1993, ch. 291, § 198;L. 1994, ch. 291, § 65;L. 2000, ch. 182, § 8;L. 2002, ch. 177, § 1;L. 2003, ch. 135, § 6;L. 2008, ch. 183, § 8;L. 2009, ch. 143, § 11; July 1.