Printable Format22-2303. Prosecution begun by filing indictment or information; issuance of warrant; summons. (1) When an indictment is returned, as provided by K.S.A. 22-3011, and amendments thereto, a prosecution shall be deemed to have been begun. In misdemeanor cases, cigarette or tobacco infraction cases and traffic infraction cases a prosecution may be begun by filing an information in the district court. Such information shall be verified positively or shall be accompanied by affidavits stating the facts constituting the crime charged. When an information is filed under this section further proceedings shall be had only after the judge has determined from the information, or from an affidavit or affidavits filed with the information or from other evidence that there is probable cause to believe both that a crime has been committed and that the defendant has committed it.
(2) Except in traffic infraction and cigarette or tobacco infraction cases, when a prosecution is begun by the filing of an indictment or information, upon which the judge has made a finding of probable cause as provided in subsection (1), a warrant for the arrest of the defendant shall issue forthwith unless otherwise directed by the court. In felony and misdemeanor cases, the court may order that a summons issue instead of a warrant. In traffic infraction and cigarette or tobacco infraction cases the court shall order that a summons issue instead of a warrant.
History: L. 1970, ch. 129, § 22-2303; L. 1971, ch. 114, § 3; L. 1984, ch. 39, § 36; L. 1996, ch. 214, § 28; L. 2007, ch. 56, § 1; July 1.
Source or Prior Law:
62-603, 62-1101, 62-1102, 62-1814.
Law Review and Bar Journal References:
"Notes on the Code of Criminal Procedure," Richard H. Seaton and Paul E. Wilson, 39 J.B.A.K. 97, 98 (1970).
"Arrest Under the New Kansas Criminal Code," Keith G. Meyer, 20 K.L.R. 685, 693 (1972).
"Criminal Procedure: Distinctions and Interactions—Fifth and Sixth Amendment Rights to Counsel [State v. Norris, 244 Kan. 326, 768 P.2d 296 (1989)]," Mary Lynch Matthews, 29 W.L.J. 106, 115 (1989).
CASE ANNOTATIONS
1. Cited; prosecution begun when indictment returned. State v. Marshall & Brown-Sidorowicz, 2 Kan. App. 2d 182, 194, 577 P.2d 803.
2. Subsection (2) cited; court may order issuance of summons instead of warrant. State v. Marshall & Brown-Sidorowicz, 2 Kan. App. 2d 182, 194, 577 P.2d 803.
3. Section mentioned in general discussion of commencement of prosecutions and right to speedy trial. State v. Taylor, 3 Kan. App. 2d 316, 318, 595 P.2d 262.
4. Felony murder conviction; when right to counsel attaches discussed. State v. Waugh, 238 Kan. 537, 546, 712 P.2d 1243 (1986).
5. Cited; prosecution for DUI (K.S.A. 8-1567) commenced only by filing complaint or information examined. State v. Fraker, 12 Kan. App. 2d 259, 260, 739 P.2d 940 (1987).
6. Accused, when promptly bonded, as suffering no prejudice when not taken immediately before judge determined. State v. Lieurance, 14 Kan. App. 2d 87, 89, 782 P.2d 1246 (1989).
7. When the prosecution of a traffic citation commences examined. State v. Donlay, 253 Kan. 132, 137, 853 P.2d 680 (1993).
8. Cited in case involving an unlawfully detained person when outstanding warrant discovered; evidence not suppressed. State v. Martin, 285 Kan. 994, 1001, 179 P.3d 457 (2008).