Diversion Program
In accordance with K.S.A. 22-2906 et. seq., the Sherman County Attorney’s Office hereby adopts a pre-trial diversion program for those accused of committing a crime.
Factors to be considered
The Sherman County Attorney’s Office shall consider those factors enumerated in K.S.A. 22-2908(1) in determining if diversion is appropriate:
- the nature of the crime charged and circumstances surrounding it;
- any special characteristics or circumstances of the defendant;
- whether the defendant is a first-time offender and if the defendant has previously participated in diversion, according to the certification of the Kansas Bureau of Investigation or the Division of Vehicles of the Department of Revenue;
- whether there is a probability that the defendant will cooperate with and benefit from diversion;
- whether the available diversion program is appropriate to the needs of the defendant;
- whether there is a probability that the defendant committed such crime as a result of an injury, including major depressive disorder, poly-trauma, post-traumatic stress disorder, or traumatic brain injury, connected to service in a combat zone, as defined in section 112 of the federal internal revenue code of 1986, in the armed forces of the United States of America;
- if subsection (a)(6) applies to the defendant, whether there is a probability that the defendant will cooperate with and benefit from inpatient or outpatient treatment from any treatment facility or program operated by the United States Department of Defense, the United States Department of Veterans Affairs, or the Kansas National Guard with the consent of the defendant, as a condition of diversion;
- the impact of the diversion of the defendant upon the community;
- recommendations, if any, of the involved law enforcement agency;
- recommendations, if any, of the victim;
- provisions for restitution; and
- any mitigating circumstances.
Disqualifying Factors
The Sherman County Attorney’s Office will not grant diversion if the accused:
- is charged with a felony;
- is charged with a violation of the Uniform Controlled Substances Act, K.S.A. 65-4101 et.seq.; paraphernalia charges are excluded;
- has previously been in a diversion program, or has a prior criminal history;
- is charged with a worthless check offense;
- is charged with non-support of a child;
- is charged with any sex crime;
- is charged with Interference with Law Enforcement or if the accused, in any way, hindered the investigation;
- is charged with Battery of a Law Enforcement Officer;
- is charged with violation of a Protection from Abuse Order;
- is charged with an Article 34 or 35 crime (crimes against persons, excluding Domestic Violence Battery), any crime in which a firearm is used, or an attempt to commit any of those crimes;
- is charged with residential burglary;
- is charged with a criminal complaint with more than five (5) consecutive counts/victims, regardless of what the charges are;
- is unable to pay restitution in monthly installments;
- is unable to secure the approval of the involved law enforcement agency;
- is unable to secure the approval of the victim;
- is unable to pay court costs and application fees before diversion is filed;
- is charged with driving under the influence of alcohol/drugs (DUI) and:
- has previously been convicted of DUI or been diverted, regardless of when the conviction or diversion occurred;
- refused a blood alcohol test or drug screen on the current charge;
- has a blood alcohol content of .20% or more on the current charge;
- was involved in an accident resulting in death or personal injury.
Application Procedure
The accused seeking diversion shall apply on a Diversion Application available at the Sherman County Attorney’s Office, or on the Sherman County Attorney's website. The application must be made, and the appropriate fees paid, prior to the preliminary hearing.
Continuances
If diversion is being considered, it will be the defendant’s responsibility to obtain a continuance of the case.
Diversion Agreement and Stay Order
The agreement and stay order shall be prepared by the Diversion Coordinator.
Diversionary Term
Providing that all conditions of the diversion agreement have been met/completed, and the accused has had no further violations of the law while on diversion, the accused may be considered for early dismissal after completing at least half of the original diversionary term.
Juvenile Diversions
The same diversion requirements apply to both juvenile and adult offenders, except that the fee/fine schedule may be different.
General Information on Diversions
A diversion is an agreement between the County Attorney and the defendant whereby the Prosecutor agrees to stay prosecution of the criminal charge for a period of time. During this time, the criminal charge is still on file with the Court but court action has stayed. After a period of supervision (usually 6 to 12 months), the Prosecutor agrees to dismiss the charge if the defendant has complied with all the conditions of the diversion agreement and has had no violations. If the defendant successfully completes the supervision period, the case is dismissed. There is no conviction and the case cannot be refiled.
If the defendant does not agree with the terms of the diversion agreement, or if the defendant does not successfully complete the supervision period, the case stay will be lifted and the case will resume.
The County Attorney reserves the right to file a motion to terminate the diversion if the defendant violates any of the conditions in the diversion agreement during the supervision period. The motion and a notice of the hearing date will be sent to the defendant’s last known address. If the defendant fails to appear at the motion hearing, the County Attorney will request a warrant for his/her arrest. If a violation is proven, then the diversion is terminated and prosecution is reinstated.
The defendant is required to stipulate a factual basis in the agreement. Any subsequent trial will be on stipulated facts as set forth in the agreement. By agreement, all law enforcement reports generated for the case will be admitted without additional foundation. The defendant will be asked to waive his/her right to a speedy trial and the right to confront witnesses. If you are representing yourself, you will be asked to waive your right to an attorney. If you cannot afford an attorney, contact the court to have a counsel appointment.
In order to determine whether a person qualifies for diversion, several factors are taken into consideration. First, a criminal history check is conducted. Diversions are generally for first-time offenders. Also, the defendant has to have been cooperative with law enforcement. If there is a victim in the case, the victim will be notified that the Defendant is applying for diversion. If a victim does not want a defendant to receive a diversion, they are disqualified. Other factors that may disqualify a person from getting a diversion include cases where crimes occurred over a period of time, rather than just a single incident; crimes that involve several victims or counts; and crimes that involve a large amount of restitution. There are some cases that never qualify for diversion, due to their severity level.