38-2361. Sentencing alternatives.
38-2361
38-2361. Sentencing alternatives.(a) Upon adjudication as a juvenile offender pursuant toK.S.A. 2009 Supp.38-2356, and amendments thereto, modification of sentence pursuant to K.S.A.2009 Supp. 38-2367, and amendments thereto, or violation of a condition ofsentence pursuant toK.S.A. 2009 Supp.38-2368, and amendments thereto, andsubject to subsection (a) ofK.S.A. 2009 Supp.38-2365, and amendments thereto,the court may impose one or more of the following sentencing alternatives. Inthe event that any sentencing alternative chosen constitutes an orderauthorizing or requiring removal of the juvenile from the juvenile's home andsuch findings either have not previously been made or the findings are not ormay no longer be current, the court shall make determinations as required byK.S.A. 2009 Supp.38-2334 and 38-2335, and amendments thereto.
(1) Place the juvenile on probation through court services or communitycorrections for afixed period, subject to terms and conditions the court deems appropriateconsistent with juvenilejustice programs in the community.
(2) Order the juvenile to participate in a community based program availablein such judicialdistrict subject to the terms and conditions the court deems appropriate. Thisalternative shall not beordered with the alternative in paragraph (12) and when ordered with thealternative in paragraph (10) shall constitute arecommendation.Requirements pertaining to child support may apply if custody is vested withother than a parent.
(3) Place the juvenile in the custody of a parent or other suitable person,subject to terms andconditions consistent with juvenile justice programs in the community. Thisalternative shall not beordered with the alternative in paragraph (10) or (12). Requirements pertainingto child supportmay apply if custodyis vested with other than a parent.
(4) Order the juvenile to attend counseling, educational, mediation or othersessions, or toundergo a drug evaluation pursuant to subsection (b).
(5) Suspend or restrict the juvenile's driver's license or privilege tooperate a motor vehicleon the streets and highways of this state pursuant to subsection (c).
(6) Order the juvenile to perform charitable or community service work.
(7) Order the juvenile to make appropriate reparation or restitution pursuantto subsection (d).
(8) Order the juvenile to pay a fine not exceeding $1,000 pursuant tosubsection (e).
(9) Place the juvenile under a house arrest program administered by the courtpursuant toK.S.A. 21-4603b, and amendments thereto.
(10) Place the juvenile in the custody of the commissioner as provided inK.S.A. 2009 Supp.38-2365, andamendments thereto. This alternative shall not be ordered with the alternativein paragraph (3) or (12).Except for a mandatory drug and alcoholevaluation, when this alternative is ordered with alternatives in paragraphs(2), (4) and (9),such orders shall constitute a recommendation by the court.Requirements pertaining tochild support shall apply under this alternative.
(11) Commit the juvenile to a sanctions house for a period no longer than 28days subject tothe provisions of subsection (f).
(12) Commit the juvenile directly to the custody of the commissioner for aperiod of confinement in a juvenile correctional facility and a period ofaftercare pursuant toK.S.A. 2009 Supp.38-2369, and amendments thereto. Theprovisions ofK.S.A. 2009 Supp.38-2365, and amendments thereto, shallnot apply to juveniles committed pursuant to this provision. This alternativemay be ordered with the alternative in paragraph (7). Requirements pertainingto child support shall apply under this alternative.
(b) If the court orders the juvenile to attend counseling, educational,mediation or other sessions, or to undergo a drug and alcohol evaluationpursuant to subsection (a)(4), the following provisions apply:
(1) The court may order the juvenile offender to participate in counseling ormediationsessions or a program of education, including placement in an alternativeeducational programapproved by a local school board. The costs of any counseling or mediation maybe assessed asexpenses in the case. No mental health center shall charge a fee forcourt-ordered counseling greaterthan what the center would have charged the person receiving the counseling ifthe person hadrequested counseling on the person's own initiative. No mediator shall charge afee for court-orderedmediation greater than what the mediator would have charged the personparticipating in themediation if the person had requested mediation on the person's own initiative.Mediation mayinclude the victim but shall not be mandatory for the victim; and
(2) if the juvenile has been adjudicated to be a juvenile by reason of aviolation of a statute thatmakes such a requirement, the court shall order and, if adjudicated for anyother offense, the courtmay order the juvenile to submit to and complete a drug and alcohol evaluationby a community-based drug and alcohol safety action program certified pursuantto K.S.A.8-1008, and amendmentsthereto, and to pay a fee not to exceed the fee established by that statute forsuch evaluation. Thecourt may waive the mandatory evaluation if the court finds that the juvenilecompleted a drug andalcohol evaluation, approved by the community-based alcohol and drug safetyaction program,within 12 months before sentencing. If the evaluation occurred more than 12months beforesentencing, the court shall order the juvenile to resubmit to and complete theevaluation and programas provided herein. If the court finds that the juvenile and those legallyliable for the juvenile's support are indigent, the court may waive the fee. Innoevent shall the fee be assessed against thecommissioner or the juvenile justice authority nor shall the fee be assessedagainst the secretaryof social and rehabilitation services or the department of social andrehabilitation services if thejuvenile is in the secretary'scare, custody and control.
(c) If the court orders suspension or restriction of a juvenile offender'sdriver's license orprivilege to operate a motor vehicle on the streets and highways of this statepursuant to subsection(a)(5), the following provisions apply:
(1) The duration of the suspension ordered by the court shall be for adefinite time periodto be determined by the court. Upon suspension of a license pursuant to thissubsection, the courtshall require the juvenile offender to surrender the license to the court. Thecourt shall transmit thelicense to the division of motor vehicles of the department of revenue, to beretained until the periodof suspension expires. At that time, the licensee may apply to the division forreturn of the license.If the license has expired, the juvenile offender may apply for a new license,which shall be issuedpromptly upon payment of the proper fee and satisfaction of other conditionsestablished by law forobtaining a license unless another suspension or revocation of the juvenileoffender's privilege tooperate a motor vehicle is in effect. As used in this subsection, "highway" and"street" have themeanings provided by K.S.A. 8-1424 and 8-1473, and amendments thereto. Anyjuvenile offenderwho does not have a driver's license may have driving privileges revoked. NoKansas driver's licenseshall be issued to a juvenile offender whose driving privileges have beenrevoked pursuant to thissection for a definite time period to be determined by the court; and
(2) in lieu of suspending a juvenile offender's driver's license or privilegeto operate a motorvehicle on the highways of this state, the court may enter an order whichplaces conditions on the juvenile offender's privilege of operating a motorvehicle on the streets and highways of this state,a certified copy of which the juvenile offender shall be required to carry anytime the juvenileoffender is operating a motor vehicle on the streets and highways of thisstate. The order shallprescribe a definite time period for the conditions imposed. Upon entering anorder restricting ajuvenile offender's license, the court shall require the juvenile offender tosurrender such juvenileoffender's license to the court. The court shall transmit the license to thedivision of vehicles,together with a copy of the order. Upon receipt thereof, the division ofvehicles shall issue withoutcharge a driver's license which shall indicate on its face that conditions havebeen imposed on thejuvenile offender's privilege of operating a motor vehicle and that acertified copy of the orderimposing the conditions is required to be carried by the juvenile offender whenoperating a motorvehicle on the streets and highways of this state. If the juvenile offender isa nonresident, the courtshall cause a copy of the order to be transmitted to the division and thedivision shall forward a copyof it to the motor vehicle administrator of the juvenile offender's state ofissuance. The court shallfurnish to any juvenile offender whose driver's license has had conditionsimposed on it under thissection a copy of the order, which shall be recognized as a valid Kansasdriver's license until thedivision issues the restricted license provided for in this subsection. Uponexpiration of the periodof time for which conditions are imposed pursuant to this subsection, thejuvenile offender mayapply to the division for the return of the license previously surrendered bythe juvenile offender. Inthe event the license has expired, the juvenile offender may apply to thedivision for a new license,which shall be issued immediately by the division upon payment of the properfee and satisfactionof the other conditions established by law unless such juvenile offender'sprivilege to operate a motorvehicle on the streets and highways of this state has been suspended or revokedprior thereto. If any juvenile offender violates any of the conditions imposedunder this subsection, the juvenileoffender's driver's license or privilege to operate a motor vehicle on thestreets and highways of thisstate shall be revoked for a period as determined by the court in which thejuvenile offender isconvicted of violating such conditions.
(d) The following provisions apply to the court's determination of whether toorderreparation or restitution pursuant to subsection (a)(7):
(1) The court shall order the juvenile to make reparation or restitution tothe aggrieved partyfor the damage or loss caused by the juvenile offender's offense unless itfinds compellingcircumstances that would render a plan of reparation or restitution unworkable.If the court findscompelling circumstances that would render a plan of reparation or restitutionunworkable, the courtshall enter such findings with particularity on the record. In lieu ofreparation or restitution, the courtmay order the juvenile to perform charitable or social service fororganizations performing servicesfor the community; and
(2) restitution may include, but shall not be limited to, the amount ofdamage or loss causedby the juvenile's offense. Restitution may be made by payment of an amountfixed by the court orby working for the parties sustaining loss in the manner ordered by the court.An order of monetaryrestitution shall be a judgment against the juvenile that may be collected bythe court by garnishmentor other execution as on judgments in civil cases. Such judgment shall not beaffected by thetermination of the court's jurisdiction over the juvenile offender.
(e) If the court imposes a fine pursuant to subsection (a)(8), the followingprovisions apply:
(1) The amount of the fine may not exceed $1,000 for each offense. The amountof the fineshould be related to the seriousness of the offense and the juvenile's abilityto pay. Payment of a finemay be required in a lump sum or installments;
(2) in determining whether to impose a fine and the amount to be imposed, thecourt shallconsider that imposition of a fine is most appropriate in cases where thejuvenile has derivedpecuniary gain from the offense and that imposition of a restitution order ispreferable to impositionof a fine; and
(3) any fine imposed by court shall be a judgment against the juvenile thatmay be collectedby the court by garnishment or other execution as on judgments in civil cases.Such judgment shallnot be affected by the termination of the court's jurisdiction over thejuvenile.
(f) If the court commits the juvenile to a sanctions house pursuant tosubsection (a)(11), thefollowing provisions shall apply:
(1) The court may order commitment for up to 28 days for the same offense orviolation ofsentencing condition. The court shall review the commitment every seven daysand, may shorten theinitial commitment or, if the initial term is less than 28 days, may extend thecommitment;
(2) if, in the sentencing order, the court orders a sanctions house placementfor a verifiableprobation violation and such probation violation occurs, the juvenile mayimmediately be taken toa sanctions house and detained for no more than 48 hours, excluding Saturdays,Sundays andholidays, prior to court review of the placement. The court and all partiesshall be notified of thesanctions house placement; and
(3) a juvenile over 18 years of age and less than 23 years of age atsentencing shall becommitted to a county jail, in lieu of a sanctions house, under the same timerestrictions imposed by paragraph (1), but shall not becommitted to or confined in a juvenile detentionfacility.
(g) Any order issued by the judge pursuant to this section shall be in effectimmediately uponentry into the court's minutes.
(h) In addition to the requirements ofK.S.A. 2009 Supp.38-2373, andamendments thereto, if a person is under 18 years of age and convicted of afelony or adjudicated as a juvenile offender for an offense if committed by anadult would constitute the commission of a felony, the court shall forward asigned copy of the journal entry to the commissioner within 30 days of finaldisposition.
(i) Except as further provided, if a juvenile has been adjudged to be ajuvenile offender for an offensethat if committed by an adult would constitute the commission of: (1)Aggravated trafficking, as defined inK.S.A. 2009 Supp.21-3447, and amendmentsthereto, if the victim is less than 14 years of age; (2) rape, as defined insubsection (a)(2) of K.S.A. 21-3502, and amendments thereto; (3) aggravatedindecent liberties with a child, as defined in subsection (a)(3) of K.S.A.21-3504, and amendments thereto; (4) aggravated criminal sodomy, as defined insubsection (a)(1) or (a)(2) of K.S.A. 21-3506, and amendments thereto; (5)promoting prostitution, as defined in K.S.A. 21-3513, and amendments thereto,if the prostitute is less than 14 years of age; (6) sexual exploitation of achild, as defined in subsection (a)(5) or (a)(6) of K.S.A. 21-3516, andamendments thereto; or (7) an attempt, conspiracy or criminal solicitation, asdefined in K.S.A. 21-3301, 21-3302 or 21-3303, and amendments thereto, of anoffense defined in parts (1) through (6); the court shall issue an orderprohibiting the juvenile from attending the attendance center that the victimof the offense attends. If only oneattendance center exists, for which the victim and juvenile are eligible toattend, in the school district where thevictim and the juvenile reside, the court shall hear testimony and takeevidence from thevictim, the juvenile, their families and a representative of the schooldistrict as to why the juvenile should or should not be allowed to remain atthe attendance center attended by the victim. After such hearing, the court mayissue an order prohibiting the juvenile from attending the attendance centerthat the victim of the offense attends.
(j) The sentencing hearing shall be open to the public as provided in K.S.A.2009 Supp. 38-2353, andamendments thereto.
History: L. 2006, ch. 169, § 61; Jan. 1, 2007.