OFFICE OF THE DISTRICT ATTORNEY Third Judicial District Of Kansas Michael F. Kagay, District Attorney Shawnee County Courthouse Fax: (785) 251-4909 200 SE 7th Street, Suite 214 Family Law Fax: (785) 251-4966 Topeka, Kansas 66603 Web: www.snco.us Phone: (785) 251-4330 General E-mail: [email protected] ACCELERATED FELONY DIVERSION PROGRAM OVERVIEW In an effort to expand the availability of diversion for certain low-level felonies, the District Attorney’s Office, in cooperation with the District Court, has created the Accelerated Felony Diversion Program. The purpose of the program is to immediately identify cases that would likely be eligible for diversion and create a stream-lined process for those defendants that wish to pursue that option. Through the efficiency created in this process, the District Attorney is able to reduce the cost that is passed on to each defendant and also reduce the number of court settings needed. CRITERIA FOR SELECTION The District Attorney’s Office is solely responsible for selecting which cases are eligible for the Diversion Docket. However, the selection process for the Diversion Docket does not ultimately determine which cases will be granted diversion. Some cases selected for the Diversion Docket may be denied diversion. Likewise, cases not selected for the Diversion Docket may still apply for and be granted diversion. Cases the District Attorney is looking to identify include the following: 1. Defendant is charged only with low level non-person felonies (and any included misdemeanors). 2. Defendant is not currently on post-conviction supervision for a felony case. 3. Defendant is presumptive probation.1 4. Defendant has not filed pre-trial motions. Circumstances that may disqualify a defendant from the Accelerated Felony Diversion Program include excessive misdemeanor or non-person felony criminal history; current or past incidents of violence; current or past incidents of manufacturing or distributing illegal narcotics; or the current or past use of a firearm in the commission of criminal activity. PROCEDURE 1. Eligibility: The guidelines for who is ultimately eligible for diversion and the factors the District Attorney will consider remain unchanged. For details, see the Criminal Diversion Program. The criteria for selection to the Accelerated Felony Diversion Program and placement on the Diversion Docket are set forth above. 2. Screening: The Court has created a Diversion Docket that will be held in Division 12, starting at 9:00 AM on the 3rd Friday of every month (with Defendants ordered to appear at 8:30 AM). When a defendant is charged, or when a defendant is seen at first appearances, the District Attorney will 1 The District Attorney may make exceptions if criminal history is based upon extremely old convictions or convictions for crimes that have been re-classified or have been repealed. 1 April 2021 identify cases that may be eligible for diversion based upon the level of offense, the known facts, and the available criminal history. The District Court will then schedule those cases for the Diversion Docket and appoint an attorney if appropriate. Appointed counsel will be notified of the setting and the option of applying for diversion. Counsel, whether appointed or retained, should meet with their clients prior to the scheduled Diversion Docket. 3. Application: Prior to the scheduled diversion docket, the defendant or counsel may request discovery if needed. Defendants should then complete a diversion application and turn it in to the District Attorney at or before the Diversion Docket. There will be no application fee for any case placed on the Diversion Docket. 4. Jury Trial Acknowledgment: During the Diversion Docket, each defendant that is interested in applying for diversion will be advised of their Constitutional right to a jury trial, and they will be further advised that if they are offered a diversion and choose to enter a diversion agreement, they will be waiving their right to a jury trial. Each defendant will then be required to sign a form acknowledging that the Court advised them of this right. 5. DA Review: After turning in the application for diversion and being advised of the impact of waiving a jury trial, the defendant will be ordered to return to the Diversion Docket in 30 days. The District Attorney will then conduct a full review of the case and confer with any necessary victims to determine if diversion is appropriate. 6. Denial: If the defendant is advised that diversion has been denied, the defendant will be provided a date to reappear for a Criminal Assignment Docket in the appropriate criminal division so that future hearings can be scheduled as necessary. 7. Agreement: If the District Attorney offers diversion, a copy of the Agreement will be provided to the defendant prior to the defendant’s scheduled Diversion Docket. The defendant will then appear at their next scheduled Diversion Docket to turn in the executed diversion agreement with any required payments to the District Attorney’s Office. The Court will then order the defendant to appear in 6 months to ensure all terms of the Diversion Agreement are being followed. 8. Revocation: If the defendant violates the terms of the diversion agreement, the District Attorney’s Office will file a motion to revoke and a hearing will be scheduled on the Diversion Docket. If the Court revokes the diversion agreement, the matter will be set for a Criminal Assignment Docket in the appropriate criminal division so that a court trial or plea can be scheduled. 9. Costs: The District Attorney’s Office is waiving all application fees for cases that are placed on the Diversion Docket. For these cases the District Attorney’s Office will also request that the KBI cease all testing in an attempt to avoid unnecessary KBI fees, which will reduce the overall costs to the defendant. Defendants entering into a diversion agreement from the Diversion Docket are still required to pay Court Costs (and surcharge), the Crime Stopper fee, a Diversion Filing fee, and any applicable extradition costs or restitution. EFFECT The Accelerated Diversion Program is simply a procedure for the District Attorney’s Office to more efficiently notify those that may be eligible for a diversion. For those individuals that are likely eligible, the Accelerated Diversion Program is also meant to streamline the process of applying for a diversion and reduce procedural costs for those that may be eligible. This program is not intended to create any additional procedural rights for a defendant. The diversion criteria and eligibility factors for diversion remain the same. The Program is not retroactive, meaning previously filed cases are not eligible to be placed on the Diversion Docket. Once a defendant is removed from the Diversion Docket, that defendant is no longer eligible for the Accelerated Diversion Program. 2 April 2021 .