Pursuant to K.S.A. 22-2906 et seq. the Ford County Attorney has established a Diversion Program for the Sixteenth Judicial District. Diversion 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 a Diversion Program will serve the ends of justice and the interests of the community.
All defendants charged in a single case who have not been granted a diversion in the past, nor convicted of any felony, may be eligible for diversion. All defendants charged with a person felony are ineligible to apply for diversion except those charged with violating or attempting to violate K.S.A. 2011 Supp. 21-5807(a)(1), 21-5807(b), 21-5607(a), and 21-5608(a), or by special exception granted by the prosecutor assigned to the case when in the interest of justice. All defendants charged with an anticipatory crime under Article 53 of Kansas Statutes Annotated, where the underlying crime is an offense that is not a divertible offense as described above, are ineligible for diversion. Defendants who have holds from other jurisdictions or law enforcement agencies for separate legal actions are ineligible for diversion. First time offenders charged with DUI or defendants charged with certain traffic infractions may be eligible for diversion under separate diversion programs administered by the Ford County Attorney.
The application is available in the Ford County Attorney’s Office. The completed application must be submitted to the Diversion Office prior to the first Preliminary Hearing date if the case is a felony, or within thirty (30) days of the initial court date if case is a misdemeanor. Applications filed after that time will not be considered unless the prosecutor on the case waives the deadline in the interest of justice. The defendant shall give such information as may be necessary for the Diversion Officer to determine his/her suitability for diversion, including information which would otherwise be privileged.
The following factors will be considered in determining whether diversion of the defendant is in the best interest of justice and will be of benefit to the defendant and the community:
- Nature of the crime charged and the surrounding circumstances
- Any special characteristics or circumstances of the defendant’s conduct bearing on eligibility for diversion
- Any restitution owing to a victim and the defendant’s desire/ability to pay such
- Defendant’s affiliation or participation in gang related activity
- Defendant’s willingness to be held accountable for the actions giving rise to charges
The Diversion Officer and Prosecutor assigned to the case will review the defendant’s suitability for diversion and make a recommendation to the County Attorney. The County Attorney reserves the right to accept or reject the recommendations of the Diversion Officer and assigned Prosecutor in making the final determination of the defendant’s suitability for diversion. Once a defendant is denied diversion, an application will not be reconsidered unless in cases where there has been a material change in circumstances.
If the defendant is found suitable for the Diversion Program, a written Agreement for Pretrial Diversion shall be offered to the defendant for acceptance or rejection. If no action is taken within fourteen (14) days after the mailing of the offer to enter into a written agreement to the defendant or counsel for the defendant, the offer will be considered to be withdrawn. If the offer is accepted by the defendant, all parties shall sign the written Agreement for Pretrial Diversion with the approval of the Court. This Agreement may contain:
- Restitution, Court Costs, Attorney fees, fines, donations as required to be paid by the defendant,
- The terms of the diversion period (length in months) and any special provisions allowing for early termination,
- An order for defendant to obey all laws and notify the diversion office of any law enforcement contact,
- A stipulation of facts supporting the charge for which the defendant is being diverted,
- Special conditions such as evaluations, counseling, school attendance, drug testing, which are conditions of entering into or remaining in the diversion program,
- Any other conditions agreed to by the parties.