Adult Diversion Policy (UPDATED JANUARY 1, 2019)
Pursuant to K.S.A. 22-2907, the Franklin County Attorney has established the following written policies and guidelines for the implementation of an adult diversion program. These guidelines are effective for any cases pending or offenses committed on or after January 1, 2019. It is not required that an applicant have an attorney for the purpose of an adult diversion. A defendant will be notified that a diversion program exists by way of printing notice of such on his/her criminal complaint.
Diversion of prosecution is a privilege and NOT A RIGHT. There is no presumption in favor of diversion in any case, and the burden of persuasion falls upon the defendant to establish that the granting of diversion in his/her case will serve the ends of justice and the interests of the community.
Diversions in adult cases, as a general a rule, are available to first-time offenders only. For those defendants who have a criminal record, diversion will still be considered if the person has not committed any crimes within the last five (5) years, or been diverted for any crime within the last five (5) years. Typically, diversion will not be considered if the applicant has any criminal convictions or diversions within the last five (5) years. Defendants charged with off-grid, Level 1-7 nonperson crimes, Level 1-4 drug felonies, and any person felony shall not be eligible to apply for diversion. Defendants charged with DUI are not eligible to apply for diversion if: they have a prior diversion for DUI, they have a prior conviction for DUI, or if the DUI charged involved an accident resulting in any personal injury or death, including any personal injury of the defendant himself/herself. Defendants charged with Domestic Battery are not eligible to apply for diversion if: they have a prior diversion or conviction for Domestic Battery.
Defendants charged with any crime against a Law Enforcement Officer or Correctional Officer are not eligible to apply for diversion.
Defendants charged with Child Endangerment are not eligible to apply for diversion.
Defendants will be diverted as charged in the Complaint. No reduction, dismissal, or amendment of charges will be made as part of a diversion agreement or to make a defendant diversion eligible.
The defendant shall complete the "Application for Diversion" and submit the application. This application for diversion must be submitted to the Franklin County Attorney's Office within thirty (30) days of the first appearance before the Court exclusive of Saturdays, Sundays or legal holidays. Applications submitted untimely will likely not be considered.
All defendants who are participating in a diversion program for a felony offense, misdemeanor offense, or any other offense shall, at the discretion of the Franklin County Attorney's Office, participate in, complete, and pay for any recommended counseling program(s). All defendants who are charged with a DUI must obtain an ADSAP evaluation prior to being considered for diversion in the case and must attach the evaluation to the Application for Diversion. All fees for the evaluation must be paid by the defendant to the evaluating agency.
All defendants charged with a domestic battery must obtain a Domestic Violence evaluation prior to being considered for diversion in the case and must attach the evaluation to the Application for Diversion. All fees for the evaluation must be paid by the defendant to the evaluating agency.
All defendants charged with a felony drug offense must obtain a Substance Abuse evaluation prior to being considered for diversion in the case and must attach the evaluation to the Application for Diversion. All fees for the evaluation must be paid by the defendant to the evaluating agency. Upon review, the Franklin County Attorney's Office will set a diversion conference with the defendant and his/her attorney, if applicable, to decide if diversion is an acceptable alternative for the defendant. A decision regarding whether the defendant will be accepted on diversion will be made as soon as possible.
FACTORS TO BE CONSIDERED (Pursuant to K.S.A. 22-2908)
Although not intended to be exclusive, the following factors shall be considered by the Franklin County Attorney's Office in determining whether diversion of the defendant is in the best interest of justice and will be a benefit to the defendant and to the community.
- Nature of the crime(s) charged and the circumstances surrounding it.
- Any special characteristics or circumstances of the defendant.
- Whether the defendant is a first-time offender and if the defendant has previously participated in diversion, according to the certification of the Kansas Bureau of Investigation or the division of vehicles of the department of revenue.
- Whether there is a probability that the defendant will cooperate with and benefit from diversion.
- Whether the available diversion program is appropriate to the needs of the defendant.
- Whether there is a probability that the defendant committed such crime as a result of an injury, including major depressive disorder, polytrauma, post-traumatic stress disorder or traumatic brain injury, connected to service in a combat zone, as defined in section 112 of the federal internal revenue code of 1986, in the armed forces of the United States of America.
- If Factor 6 above applies to the defendant, whether there is a probability that the defendant will cooperate with and benefit from inpatient or outpatient treatment from any treatment facility or program operated by the United States department of defense, the United States department of veterans affairs or the Kansas national guard with the consent of the defendant, as a condition of diversion.
- The impact of the diversion of the defendant upon the community.
- Recommendations, if any, of the involved law enforcement agency.
- Recommendations, if any, of the victim.
- Provisions for restitution.
- Any mitigating circumstances.
If the defendant is found suitable for the Diversion Program, a written agreement for diversion shall be offered by Franklin County Attorney's Office to the defendant for acceptance or rejection. Although not exclusive, the written agreement may contain:
- The defendant waives all rights under the law, the constitution of Kansas and of the United States, the right to a speedy arraignment, preliminary examinations and hearings, and a speedy trial, waiver of the rights to counsel and trial, including trial by jury, to file motions and have those heard by the court, and agrees to stipulate to the facts of the case.
- Residence in a specified facility.
- Participation in programs offering medical, educational, vocational, social and psychological services, corrective and preventive guidance and other rehabilitative services.
- An agreement that the defendant report to the Franklin County Attorney's Office.
- Payment to the Franklin County Attorney's Office of a Diversion Supervision Fee.
- Payment of all Court costs and assessed fines.
- Any specified terms of diversion.
- The defendant agrees not to violate any laws of the United States or any state, county, municipality, or other local laws.
- Any special conditions including, but not limited to:
a. Restitution to the victim(s) of any crime. b. Random drug testing by way of urine analysis, oral swabs, or other methods of testing. c. Counseling. d. Maintaining employment. e. Reimbursement of Court appointed attorney's fees. f. No contact with victim(s) and/or witness(es). g. Community service. h. Fines. i. Letters of apology. j. Obtaining a General Education Certificate or high school diploma.
The filing of the diversion agreement with the Clerk of the District Court of Franklin County, Kansas, shall act as a general continuance of the proceedings until the conclusion of the diversion agreement. When the defendant has successfully fulfilled the terms and conditions of the diversion agreement, the County Attorney shall move to have all of the charges against the defendant dismissed with prejudice. If the defendant fails to fulfill the terms and conditions of the agreement for diversion, the County Attorney will request that prosecution be resumed. After an appropriate hearing, the Court, upon finding that the defendant failed to fulfill the terms of the diversion agreement, may order the diversion terminated and resumption of the criminal proceedings on the original complaint.
The Franklin County Attorney's Office does hereby advise all prospective applicants for diversion of prosecution to consult with their own attorney prior to executing any diversion agreement, to determine any and all effects which said diversion agreement might have upon the individual defendant.
It is extremely important that the defendant understand that diversion is a privilege and not a right, and absolute compliance will be required. Absolute compliance with the conditions of diversion, including the timely making of any and all payments under the diversion contract, on the dates specified therein will be required. The County Attorney's Office will not excuse any non-compliance no matter how slight.
Franklin County Attorney's Office
Brandon L. Jones, County Attorney
220 S. Beech Street – Suite B
Ottawa, KS 66067
(785) 229-8971 (fax)