Law Office Of Kari Nelson
"Helping the scales of justice balance in your favor."
Understanding
District Court
for
Criminal and Traffic Cases
If you're like most people, this is probably the first time you have ever come in contact with the criminal justice system.This brochure is designed to help you understand court procedures and to make you aware of your rights and duties.
First, we should explain that District Court is part of the judicial branch of state government. Traffic violations, fish& game violations, juvenile cases, and criminal violations of state statutes are handled in this court. Appeals from municipal courts are also handled by District Court.
Trials are conducted under the Code of Criminal Procedure and the Kansas Rules of Evidence as adopted by the Kansas Legislature.
Bringing a Case to Trial
You, as a defendant, have the right to inspect the complaint or citation before trial and have it read to you.
Jury trials cannot be held for traffic infraction violations. Jury trials for misdemeanor cases are tried to a 6-person panel and felony cases are tried to a 12-person panel.
Arraignment
On a criminal or juvenile complaint, a summons will probably be issued giving you a date to appear. Occasionally a warrant will be issued. When you bond out of jail, the bond will state the date you are to appear in court.
On criminal felony cases, the arraignment does not occur until a preliminary hearing has been held or is waived and the defendant is bound over for arraignment.
Many people may be appearing for arraignment at the same time. Though a judge tries to proceed as quickly and efficiently as possible, things sometimes get delayed. You should appear at the time that is stated on your ticket,summons, or appearance bond.
At the arraignment, you will be given an opportunity to enter a plea.(Signing a citation in front of an officer does not mean you plead guilty. It means only that you promise to appear in court by that date or pay your traffic citation by that date.) The officers do have fine schedules to which they can refer and enter the amount due on the back of your copy of the citation. If they do not have a fine schedule for your violation, you must contact the court to obtain the amount of your fine. Some violations require that you must appear before the judge. Whether you plead guilty and pay the citation by mail or come to court, Kansas statute assesses court costs or a docketing fee for each traffic case that it filed.
You may enter one of three pleas: guilty, no contest (nolo contendere), or not guilty.
The Right to An Attorney
If you are less than 18 years old, a parent should be present and, in some cases, will be required to attend your court hearings.
If an attorney is appointed to represent you and you plead guilty, no contest, or are found guilty by the court, attorney fees may be assessed against you.
Pleading Guilty
Some people, when pleading guilty, want to explain extenuating circumstances surrounding a charge. A judge may take these mitigating circumstances into consideration when ordering fines or jail time.
What you should know before entering a plea of guilty:
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Pleading No Contest
Pleading Not Guilty
The Trial
After each prosecution witness testifies, you have a right to cross-examine each witness. Your cross examination must be in the form of questions; you are not allowed to argue with a witness. This is not the time for you to tell your side of the story. That opportunity comes later in the trial.
You have the right:
To have the court issue subpoenas for witnesses to ensure their appearance at trial. However, you must furnish names, addresses and telephone numbers of these witnesses to the court as quickly as possible so they can be located and subpoenas served.
To testify and a constitutional right not to testify. Choosing not to testify will not be used against you in determining guilt or innocence.However, if you do testify, the prosecutor has a right to cross-examine you.
Anyone appearing in Court is required to obey the following rules:
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The Verdict
If you are found guilty, the penalty will be announced either at that time or after a pre-sentence investigation. Pre-sentence investigations are normally requested when some type of psychological, alcohol or drug evaluation, or prior criminal history is needed prior to sentencing.
Fines and Fees
If you are found guilty, court costs are added to the initial fine. There may be other fees assessed as well.
If you cannot afford to pay the amounts assessed against you, you may request of the judge that he allow you time to pay. The judge will probably ask you how much time you need and set a show cause hearing date for you to either pay the matter in full or appear in court to explain why the amounts due have not been paid.
If you fail to appear for a show cause hearing, the judge may order a bench warrant to be issued for your arrest. The matter may also be turned over to a collection agency which will result in additional monies being owed by you.
If you are convicted of a DUI and are required to use a steering wheel locking device, that cost is assessed to you.
Probation
Supervised probation is where you will have a probation officer who will work with you on your case. There is a probation fee charge that you are required to pay. They will require that you sign conditions of probation and those conditions are then approved by the judge who heard your case. The probation officer will require you to make office visits and will monitor your payments to the court.
As a condition of some probations, you may be required to submit to urinalysis testing or obtaining evaluations, such as psychological or drug and alcohol. These items are at your expense.
Unsupervised probation is where you are not really supervised by anyone except the court and the county attorney's office.
If you do not abide by the conditions set out in your probation, you will betaken back to court to pay any amounts due or serve any jail time originally ordered.
Parole
The Appeal
You have 10 days after the conviction of a district magistrate judge to file a "Notice of Appeal."
An appeal from a magistrate judge will be a trial "de novo" before a district judge, a whole new trial as if the trial to the magistrate judge had never taken place. It may take some time for the matter to be heard by a district judge.
You may be required to post an appeal bond. If you fail to appear at that time or at any other time during the course of the appeal, your appearance bond will be forfeited and the sentence imposed by the magistrate judge will been forced.
Expunging A Conviction
You can petition for expungement for most state statute convictions after three years if you have satisfied the sentence imposed, or were discharged from probation, parole, conditional release, or a suspended sentence.
The time for expungement may be longer for other convictions.
Once you have petitioned for expungement, the court will set a hearing date and send a notice to the prosecutor. Anyone who has relevant information about you may testify at the hearing. The prosecutor will look into your back ground to see if there have been any subsequent convictions and present its findings to the court.
At the hearing, your conviction may be expunged if the Court finds:
- You have not been convicted of a felony in the past two years, and no criminal proceedings are currently pending or being instituted.
- Your behavior and circumstances warrant it.
- Expunging your conviction is consistent with the public welfare.
- You are convicted of another crime. In that case, the conviction that was expunged can be viewed as a prior conviction at sentencing.
- You apply for admission or for an order of reinstatement to the practice of law in this state.
- You apply for employment with a criminal justice agency, private detective agency, a private patrol operator, or with the Department of Social and Rehabilitation Services.
- You apply for a job with the Kansas Lottery or Racing commissions.
- You apply for a commercial driver's license.
- Other circumstances under which the conviction is to be disclosed are discussed in K.S.A. 21-4619.
Do All Cases Go toTrial?
Many criminal, juvenile and traffic cases are concluded without a trial. A case may be disposed of without a trial through a plea agreement or diversion program.Plea Agreement
Under a plea agreement, you agree to plead guilty or no contest to certain charges, and the prosecutor agrees to ask the court to dismiss others.Sometimes, a prosecutor may amend the complaint to a lesser charge or be more lenient on sentencing recommendations if you agree to plead guilty.
Plea negotiations cannot be initiated by the prosecutor. The prosecutor has no obligation to discuss or negotiate your case. In plea negotiations, a prosecutor will consider the effect of the criminal offense on the victim, your criminal history, and the seriousness of the crime.
Please remember that a plea agreement is made with the prosecutor. The judge is not bound by the plea negotiations and may reject any agreements.
Diversion
In some cases, a prosecutor, if you are qualified and apply, may decide to place you in a diversion program instead of proceeding with a trial.
In a diversion, you enter into a contract to comply with certain conditions and to be supervised by the county attorney for a period of time. Other conditions of a diversion may include attending classes (e.g., substance abuse,anger control, etc.), counseling, restitution, or a no-contact order with the victim(s).
When entering into a diversion contract -
- There may be a diversion fee. The amount will depend on the nature of the charges and is set by the prosecutor.
- Any evaluation, education or treatment programs required as part of this agreement will be at your expense. Some of these items may be included in the diversion fee.
- You may not be allowed to consume alcohol or drugs while on a diversion. Breath, blood, and urine tests may also be requested at any time for certain diversions.
However, if you successfully complete all of the conditions in the agreement, the charges will be dismissed.
If you fail to meet a condition, the diversion may be terminated, the charges immediately reinstated, and a trial held.
Diversions are usually for first-time offenders and those who do not appear likely to engage in further criminal conduct.
| Remember: Plea agreements and diversions are solely at the prosecutor's discretion. They are a privilege, not a right. In most cases, the prosecutor will consult with the victim prior to entering into a plea agreement or diversion contract. |
Nutshell Kansas Criminal Justice Process An event, believed to be a crime, is reported to law enforcement officials. They investigate the offense in order to determine if a crime has occurred and then to try and determine who is responsible for the"crime'. If the offense is of a serious enough nature, and/or the officer observes the offense occurring, the officer may make an arrest. Such an arrest is often referred to as a "probable cause' arrest, wherein the officer makes the determination, initially, without a judge's approval, that probable cause exists that a crime occurred and the person arrested committed the crime.
For all other offenses, upon the completion of the investigation, the information is forwarded to a prosecuting attorney. For offenses classified as violations of Kansas state statutes, this will be a district or county attorney with jurisdiction,authority, over the county where the crime allegedly occurred. If the offense falls below the dollar amount, typically $150 in many jurisdictions, oris of a lower severity level and it occurred within city limits, then the information may be forwarded to the city prosecutor for the appropriate city.
Upon receipt, an attorney within the prosecutor's office reviews the reports and information to determine if a case should be pursued. The criteria for determination of whether an event should be pursued, as a criminal case in Kansas is somewhat left to the discretion of the prosecutor. Such things as existence of evidence, likelihood of success, existing case load, criminal history, or lack thereof, of the alleged offender, and alternative resolutions are a few things that the prosecutor may consider when deciding whether to seek prosecution. Each county/district attorney in Kansas has the authority to set their own standards for what meets the requirement to attempt to pursue a matter in court.
If the prosecutor decides to pursue the matter, a complaint is drafted, which accompanied by an affidavit setting forth probable cause, is forwarded to the Court for review. The prosecutor can elect to forward a request for either a summons or an arrest warrant.A summons is simply that, a document setting forth the date and time when the accused must appear at court to begin to answer to the charges. If a person, who has been served a summons, fails to come to court as directed, then a warrant, typically called a bench warrant, will be issued and the person will be "brought' to court. This process is very similar to what you might expect if you ignore the appearance date/time listed on a traffic ticket issued in Kansas.
When a judge reviews the request for a warrant, if it is approved, a bond amount will be set and included upon the warrant, for most offenses. The warrant, is then forwarded to the law enforcement agency in the jurisdiction from which it arose. Typically,law enforcement agencies have a minimal staff for actively seeking out those for who warrants exist on lower severity level offenses. For these low level warrants, they are entered into the Kansas Criminal Justice system and ifa "wanted' person is stopped for a traffic offense, then the officer stopping them will be notified of the warrant when they call into dispatch to check the license.
Once a law enforcement officer arrests either on a warrant, or on probable cause a person is given an opportunity to post bond. Bond is an amount of money "put up' to guarantee the appearance of the accused at all court proceedings and the safety of the community. If the person appears at all court proceedings and does not commit any additional violations of the law, or violate any conditions the court may put on the bond, the money will be returned, if posted by the accused. Companies, known as bail bondsman, exist to assist with the bonding process. Bail bonding companies, typically, require a nonrefundable payment of a percentage of the bond amount.
If the accused does not post bond and remains in custody, then they must be brought before a judge within 48 hours of arrest. This does not require physical presence before the court and can be accomplished via video link systems. For those charged with misdemeanors, they will be required to enter a plea to the charges at this time, this is called an arraignment.
For those charged with felonies, a plea will not be accepted at this time, but the matter will be set for a preliminary hearing. A preliminary hearing is a hearing whereby the state must present evidence to the court setting forth probable cause that a felony crime occurred and probable cause that the accused is the person who committed the offense. If the judge hearing the preliminary hearing makes these findings, then the accused is "bound over' for trial. This simply means,the accused will be required to go to trial on the matter or matters, which went before the court. If the judge does not believe that the state provided evidence of probable cause that a felony offense occurred or that this was the person, then the court will dismiss any felony where the state failed in it's proof. For those bound over for trial, they will be arraigned,required to enter a plea, to the offenses.
The right to hear evidence at a preliminary hearing belongs to a defendant, but the requirement to present evidence at a preliminary hearing is on the state. If the defendant does not wish to have a preliminary hearing, he and only he may waive the right to the hearing.
Arraignment may happen immediately following the preliminary hearing, or it may be set over for a different date/time. Following arraignment, for either a misdemeanor or felony, a trial date will be set. If there are issues that need to be addressed by the court, such as illegal search and seizure, invalid or confessions obtained in violation of an accused's rights, a date will be set by the court to consider these matters.
Plea bargaining, including entering into a diversion, can occur at any stage of this process. Plea bargaining and the granting of diversions, are left to the discretion of the prosecuting attorney(s) involved in the case. If the case or offenses, involve victim(s) other than the State, then the victim must be notified of plea bargaining and have the opportunity to provide input regarding these matters. Plea bargaining can involve pleading guilty to any/all of the charges which a person faces, or may involve amendment(s) of the charges to something other than what is charged, but which fits the events.
Once a conviction is obtained, either through trial or plea, the Court will set a date for sentencing of the defendant. If the conviction(s) is for a misdemeanor, the court may elect to proceed to sentencing immediately. However, typically, the court sets the matter to another date and directs the preparation of a presentence investigative report. This will be a report which provides some information to the court, not only about the crime, but also about the offender such as prior criminal history, and other background information, along with the criminal history score and crime severity level for felonies.
For any felony that the defendant is convicted, the sentencing is mandated by the Kansas Sentencing Guidelines Act,or Grid, a standardized sentencing scheme which considers the crime severity level of conviction and the criminal history of the offender.Within the grid, there are offenses that are presumed imprisonment,presumed probation and border box offenses. The Court can deviate from the presumed sentence, upon motion of the Defendant, the State, or it's own motion with notice. Deviations from the presumption may occur as to the number of months of the sentence, whether the sentence shall be served in prison or on probation or both. If the court sentences an offender to the presumed sentence, then an appeal is only allowed in exceptional circumstances. Border box offenses, are offense that are presumed to be imprisonable offenses, but the standard for the court to deviate from that is lower than presumptive imprisonment boxes.
Appeal, is the opportunity for review by a higher court, the Kansas Court of Appeals and the Kansas Supreme Court, of the lower court's rulings and actions. If a conviction results from a plea,then the Defendant gives up, or waives his right to an appeal. If conviction is the result of trial, then an appeal can be filed with the appellate courts. The time for appeals is very specific, so these matters must be pursued in a timely fashion.
The use of this website does not create an attorney-client relationship. Although I hope the information contained on this website will be helpful, it should not be a substitute for legal advice from an attorney that has reviewed the intricacy of your case.
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Law Office of Kari Nelson
PO Box 44-2588
Lawrence, KS 66044
Telephone: (785) 979-4985
Fax: (785) 312-9052
kari@knlawoffice.com