KANSAS OFFICE of
  REVISOR of STATUTES

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21-4610.

History: L. 1969, ch. 180, § 21-4610; L. 1972, ch. 317, § 100; L. 1976, ch. 169, § 1; L. 1978, ch. 120, § 9; L. 1981, ch. 147, § 1; L. 1983, ch. 112, § 1; L. 1984, ch. 126, § 2; L. 1986, ch. 128, § 2; L. 1986, ch. 123, § 10; L. 1986, ch. 136, § 2; L. 1988, ch. 115, § 9; L. 1991, ch. 88, § 3; L. 1992, ch. 239, § 244; L. 1993, ch. 259, § 14; L. 1995, ch. 257, § 2; L. 1997, ch. 181, § 19; L. 2000, ch. 182, § 5; Repealed, L. 2010, ch. 136, § 307; July 1, 2011.

Source or Prior Law:

62-2241.

Revisor's Note:

This section was also amended by L. 1992, ch. 298, § 93, effective July 1, 1993, see 21-4610b.

Cross References to Related Sections:

Probation unavailable for defendants who used firearms in certain crimes committed prior to July 1, 1993, see 21-4118.

Law Review and Bar Journal References:

"Constitutional Law—Imprisonment of Convicted Indigent for Nonpayment of Fine," John Terry Moore, 10 W.L.J. 120, 127 (1970).

"Creative Punishment: A Study of Effective Sentencing Alternatives," David F. Fisher, 14 W.L.J. 57, 68 (1975).

Subsection (k) cited in "Kansas Recoupment: A Recurring Constitutional Concern," Roger N. Walter, 19 W.L.J. 38, 46, 48 (1979).

"Kansas Diversion: Defendant's Remedies and Prosecutorial Opportunities," Joseph Brian Cox, 20 W.L.J. 344, 346, 371 (1981).

"Reform in Kansas Domestic Violence Legislation," David J. Gottlieb and L. Eric Johnson, 31 K.L.R. 527, 550 (1983).

"Nonsupport of Children: Criminal Prosecution as an Alternative," Michael W. Laster, J.K.T.L.A. Vol. XV, No. 5, 27, 28 (1992).

"Criminal Law: The Exclusionary Rule: Has it Worked its Way into the Probationary System? [State v. Turner, 891 P.2d 317 (Kan. 1995)]," L. Christopher Wittman, 35 W.L.J. 528 (1996).

"Criminal Law: Computer Hackers Must Do More Than Dial Phone Numbers to be Charged with Computer Crime in Kansas [State v. Allen, 917 P.2d 848 (Kan. 1996)]," Angela N. Loehr, 36 W.L.J. 530 (1997).

"Durational and Dispositional Departures Under the Kansas Sentencing Guidelines Act: The Kansas Supreme Court's Uneasy Passage Through Apprendi-land [State v. Carr, 53 P.3d 843 (Kan. 2002)]," Steven J. Crossland, 42 W.L.J. 687 (2003).

Attorney General's Opinions:

Code; sentencing; community or public service work as condition of probation. 81-98.

Driving while under influence of alcohol; performance of public or community service work by convicted violators. 82-183.

Payment of restitution funds in "sting operations." 82-275.

Sentencing; probation; incarceration in county jail. 83-103.

Classification of crimes and penalties; effect of legislation providing for reduction of sentences. 84-57.

Reporting of abuse or neglect of children; court services officers. 89-100.

State's subrogation rights; criminal restitution. 90-65.

Farm animal and research facilities protection act; (K.S.A. 47-1825 et seq.). 90-72.

DUI conviction; penalties; public service. 91-27.

Sentencing; authorized dispositions; sentencing; probation; costs; home rule powers. 92-90.

Trial court may not order interest as part of restitution from person convicted of theft of obtaining ineligible unemployment compensation. 92-107.

Neither court services officers nor community corrections officers have unilateral authority to restrict the liberty of those under their supervision. 93-11.

Driving under the influence; place of incarceration for third or subsequent offense; penalties. 94-43.

Community correctional officer held not a law enforcement officer under law enforcement training act. 96-33.

Claims arising out of court service officer's use of personal motor vehicle while acting within scope of employment; state liability under tort claims act; reimbursement for additional insurance premiums. 1999-17.

CASE ANNOTATIONS

1. Probation properly revoked; defendant's appearance at hearing waived notice objection; evidence showed conditions of probation violated. State v. Dunham, 213 Kan. 469, 477, 517 P.2d 150.

2. Order revoking probation under suspended sentence upheld; not necessary that commission of offense be proven beyond reasonable doubt. State v. Rasler, 216 Kan. 292, 532 P.2d 1077.

3. Subsection (k) referred to in holding recoupment statute (K.S.A. 22-4513) unconstitutional. Simmons v. James, 467 F. Supp. 1068, 1070, 1071, 1079.

4. Individual engaging in unofficial narcotics investigation is not exempted as a law enforcement officer from K.S.A. 21-4201 because of commission as a special deputy or school security guard. State v. Hargis, 5 Kan. App. 2d 608, 611, 620 P.2d 1181.

5. Modification of restitution order to substitute secondarily aggrieved party for original aggrieved party affirmed. State v. Yost, 232 Kan. 370, 372, 374, 654 P.2d 458 (1982).

6. Cited; no authority in felony case to commit to community corrections facility (K.S.A. 21-4603) except as condition of probation. State v. Fowler, 238 Kan. 326, 334, 710 P.2d 1268 (1985).

7. Legislature did not intend that manpower costs in capturing escaped prisoner be reimbursed to state by prisoner. State v. Jones, 11 Kan. App. 2d 428, 429, 431, 724 P.2d 146 (1986).

8. Limitations on conditions of probation and parole (K.S.A. 21-4602) determined. State v. Mosburg, 13 Kan. App. 2d 257, 258, 768 P.2d 313 (1989).

9. Measure of restitution as actual loss suffered; rights of victim's insurer against defendant determined. State v. Hinckley, 13 Kan. App. 2d 417, 777 P.2d 857 (1989).

10. Broad authority of court to impose or modify any general or specific conditions of probation or parole examined. State v. Garrett, 14 Kan. App. 2d 8, 10, 780 P.2d 168 (1989).

11. Trial court's authority to impose or modify any condition of probation includes imposition of jail time. State v. Walbridge, 14 Kan. App. 2d 483, 486, 794 P.2d 316 (1990); reversed 248 Kan. 65, 805 P.2d 15 (1991).

12. Court need not consider defendant's financial ability to reimburse for legal services provided until hearing on petition to waive payment. State v. Crawford, 248 Kan. 42, 49, 804 P.2d 1385 (1991).

13. Restitution order not within meaning of K.S.A. 40-3104(j); driver's license determined suspended until minor's claim resolved. Creamer v. Kansas Dept. of Revenue, 15 Kan. App. 2d 573, 576, 812 P.2d 330 (1991).

14. Discretion regarding reparation or restitution, tangential costs examined; "aggrieved party" defined. State v. Beechum, 251 Kan. 194, 203, 833 P.2d 988 (1992).

15. No credit allowed toward controlling sentence (K.S.A. 21-4614a) for time spent under house arrest (K.S.A. 21-4603b); inpatient drug treatment issue remanded. State v. Williams, 18 Kan. App. 2d 424, 427, 856 P.2d 158 (1993).

16. Whether court abused discretion by refusing to apportion restitution between defendants and other attackers examined. State v. Wells, 18 Kan. App. 2d 735, 736, 861 P.2d 828 (1993).

17. Cited; whether house arrest constitutes imprisonment under K.S.A. 21-3405b(b)(2) examined. State v. Scherzer, 254 Kan. 926, 936, 869 P.2d 729 (1994).

18. Whether court may order restitution for offenses dismissed pursuant to plea bargain examined. State v. Ball, 255 Kan. 71, 72, 77, 872 P.2d 274 (1994).

19. Cited; whether habitual offender ordinance requiring increasing fines is constitutional for repeat indigent criminal offenders examined. Wichita v. Lucero, 255 Kan. 437, 449, 874 P.2d 1144 (1994).

20. Whether sentencing court may award restitution for charges in original complaint dismissed pursuant to plea agreement examined. State v. Ball, 255 Kan. 694, 696, 700, 877 P.2d 955 (1994).

21. Whether municipal judge has authority to order defendant to reimburse city for appointed counsel examined. City of Dodge City v. Anderson, 20 Kan. App. 2d 272, 273, 886 P.2d 901 (1994).

22. Trial court's award of restitution reversed where award exceeded reasonable market value of item before being damaged. State v. Casto, 22 Kan. App. 2d 152, 153, 912 P.2d 772 (1996).

23. Authority of court to order restitution on crimes defendant did not plead to not limited by subsection (d)(1). State v. Turner, 22 Kan. App. 2d 564, 567, 919 P.2d 370 (1996).

24. Discretion of court in requiring defendant to provide support for dependents as condition of probation considered. State v. Windom, 23 Kan. App. 2d 429, 432, 434, 932 P.2d 1019 (1997).

25. Inpatient drug treatment program probation condition qualifies for jail time credit irrespective whether under community corrections program. State v. Theis, 262 Kan. 4, 9, 936 P.2d 710 (1997).

26. Defendant convicted of criminal nonsupport may be ordered to pay child support owed outside period alleged in complaint as probation condition. State v. Loffer, 24 Kan. App. 2d 495, 496, 947 P.2d 458 (1997).

27. Order of restitution entered six months after sentencing constituted an illegal sentence. State v. Cooper, 25 Kan. App. 2d 459, 460, 966 P.2d 688 (1998).

28. No abuse of court's discretion in determining settlement in civil action satisfied requirement for restitution in criminal case. State v. Applegate, 266 Kan. 1072, 1079, 976 P.2d 936 (1999).

29. Court has discretion to extend time to determine amount of restitution to be paid by defendant. State v. Cooper, 267 Kan. 15, 17, 977 P.2d 960 (1999).

30. Appropriate exercise of judicial discretion in releasing defendant of obligation to make further restitution payments based on defendant's current financial condition. State v. Schulze, 267 Kan. 749, 751, 985 P.2d 1169 (1999).

31. Court had no authority to incarcerate defendant beyond 30 days permitted by section. State v. Thomas, 26 Kan. App. 2d 171, 175, 981 P.2d 1178 (1999).

32. Unpaid order of restitution in earlier case may be imposed as condition of probation in later case. State v. Hymer, 27 Kan. App. 2d 1054, 11 P.3d 94 (2000).

33. Payment of $250 to county to pay for jail time as a condition of probation not an abuse of discretion. State v. Calhoun, 28 Kan. App. 2d 340, 19 P.3d 179 (2000).

34. Court may not require as condition of probation payment of restitution ordered in prior case. State v. Hymer, 271 Kan. 716, 26 P.3d 63 (2001).

35. No error in including cost of audit as part of restitution to victim when it is reasonable consequence of crime. State v. Bausch, 29 Kan. App. 2d 649, 29 P.3d 989 (2001).

36. Court follows American rule on attorney's fees; victim's hiring of private attorney for restitution hearing not a causal link to damages and attorney's fee not includable in restitution award. State v. Hunziker, 274 Kan. 655, 56 P.3d 202 (2002).

37. No abuse of discretion in trial court ordering defendant to pay restitution including victim's attorney fees; contra: 30 Kan. App. 2d 407. State v. Hunziker, 30 Kan. App. 2d 279, 41 P.3d 880 (2002).

38. Private attorney's fee not includable as part of claim for restitution; contra: 30 Kan. App. 2d 279. State v. Cox, 30 Kan. App. 2d 407, 42 P.3d 182 (2002).

39. No causal connection between crime committed and damage to victim; restitution not justified. State v. Hall, 30 Kan. App. 2d 746, 49 P.3d 19 (2002).

40. Absent an agreement to pay restitution, there must be causal connection between crime and damage suffered by victim to require payment of restitution. State v. Zeiner, 31 Kan. App. 2d 606, 69 P.3d 213 (2003).

41. Fair market value, not cost of property taken, to be used in ordering restitution. State v. Rhodes, 31 Kan. App. 2d 1040, 77 P.3d 502 (2003).

42. Restitution order must be based upon causal link between defendant's actions and victim's losses; defendant deemed to acquiesce in amount in excess of charged amount. State v. Dyer, 33 Kan. App. 2d 766, 108 P.3d 1010 (2005).

43. Defendant's probation may be revoked under statute based on multiple misdemeanor convictions. State v. Gumfory, 281 Kan. 1168, 1175, 135 P.3d 1191 (2006).

44. Probation conditions may not retroactively encompass conduct prior to sentencing. State v. Gary, 282 Kan. 232, 238, 144 P.3d 644 (2006).

45. Restitution reversed, purchase of security system tangential cost incurred not cost caused by the crime. State v. Chambers, 36 Kan. App. 2d 228, 241, 138 P.3d 405 (2006).

46. Where there is no readily ascertainable fair market value, district court may consider other factors in determining restitution, including purchase price, condition, age, and replacement cost. State v. Maloney, 36 Kan. App. 2d 711, 713, 143 P.3d 417 (2006).

47. Section imposes no requirement that court consider a defendant's financial circumstances in making a restitution order. State v. Cole, 37 Kan. App. 2d 633, 634, 638, 639, 155 P.3d 739 (2007).

48. Section discussed in holding that a restitution hearing before sentencing is directory, not mandatory. State v. Burton, 37 Kan. App. 2d 924, 927, 163 P.3d 325 (2007).

49. Illegal alien status does not automatically render a defendant unamenable to probation. State v. Martinez, 38 Kan. App. 2d 324, 330, 332, 335, 165 P.3d 1050 (2007).

50. Mentioned; statute does not address whether community corrections officer may offer recommendation on probation. State v. Chetwood, 38 Kan. App. 2d 620, 170 P.3d 436 (2007).

51. Cited in opinion holding that juveniles have a constitutional right to jury trials. In re L.M., 286 Kan. 460, 468, 469, 186 P.3d 164 (2008).

52. Cited; no jail time credit for time in inpatient treatment required by mandatory drug abuse treatment program. State v. Preston, 287 Kan. 181, 185, 195 P.3d 240 (2008).

53. Mentioned; court enforces property settlement agreement with hold harmless agreement; restitution order discussed. In re Marriage of Hudson, 39 Kan. App. 2d 417, 432, 433, 182 P.3d 25 (2008).

54. Cited; condition of probation that authorizes nonconsensual, suspicionless searches held unconstitutional. State v. Bennett, 39 Kan. App. 2d 890 to 892, 896, 185 P.3d 320 (2008).

55. Officials must have rational, articulable suspicion of probation violation or criminal activity before searching probationer's person or property. State v. Bennett, 288 Kan. 86, 200 P.3d 455 (2009).

56. Probation condition requiring defendant to post signs on house and car declaring his sex offender status not authorized. State v. Schad, 41 Kan. App. 2d 805, 206 P.3d 22 (2009).

57. Restitution based on inventory's retail market value, as opposed to wholesale cost, reversed. State v. Hall, 45 Kan. App. 2d 290, 247 P.3d 1050 (2011).

58. Notice and opportunity requirements satisfied; no due process violation. State v. Grossman, 45 Kan. App. 2d 420, 248 P.3d 776 (2011).

59. Restitution ordered exceeded the fair market value; restitution reversed and remanded. State v. Phillips, 45 Kan. App. 2d 788, 253 P.3d 372 (2011).

60. The trial court is held in error in awarding lost profits to the property crime victim when evidence is speculative. State v. Behrendt, 47 Kan. App. 2d 396, 274 P.3d 704 (2012).

61. Restitution statute does not require sentencing judge to rely on wholesale cost rather than retail value. State v. Hall, 297 Kan. 709, 304 P.3d 677 (2013).

62. Defendant's death did not render state's petition for review moot as it was in the interest of the public that the issue raised be adjudicated on the merits. State v. Hand, 297 Kan. 734, 304 P.3d 1234 (2013).


 



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