Judges: Carla J. Stovall, Attorney General of Kansas
Filed Date: 8/7/1997
Status: Precedential
Modified Date: 7/5/2016
William R. Mott Sumner County Attorney Sumner County Courthouse 500 North Washington Wellington, Kansas 67152-0497
Dear Mr. Mott:
You request our opinion on the legality of the diversion program you have proposed for speeding infractions charged in Sumner County. We limit our opinion to the specific questions you ask. You first inquire whether speeding infraction diversions that require defendants to pay diversion fees in excess of actual diversion program costs and/or donations to charity violate K.S.A.
K.S.A.
"Compounding a crime is accepting or agreeing to accept anything of value as consideration for a promise: (1) Not to initiate or aid in the prosecution of a person who has committed a crime; or (2) to intentionally conceal or destroy evidence of a crime."
Compounding or concealing a crime was derived from the common law concept of "theftbote" where the party robbed knew the thief and took his stolen goods back or accepted other amends on agreement not to prosecute. "The gravamen of the offense of compounding, or theftbote as it was once called, consists in the stifling of a public prosecution, or in some way perverting public justice." 15A C.J.S. CompoundingOffenses § 1a (1967). While most jurisdictions no longer limit compounding to the victim, there is limited authority indicating that a prosecuting attorney may be held liable for such actions. See State v. Henning,
The fundamental rule of statutory construction is that the intent of the Legislature controls. Florida Dept. ofHRS v. Breeden,
"A diversion agreement shall provide that if the defendant fulfills the obligations of the program described therein, as determined by the attorney general or county or district attorney, such attorney shall act to have the criminal charges against the defendant dismissed with prejudice. . . . The diversion agreement may include, but is not limited to, provisions concerning payment of restitution, including court costs and diversion costs. . . ." (Emphasis added.)
Attorney General Robert Stephan concluded that a county attorney has great discretion in fashioning a diversion agreement and requiring a defendant to make a contribution to charity as a condition of diversion is within that discretion. Attorney General Opinion No.
Other established rules of statutory construction provide that an older statute is subordinate to a newer one if the statutes conflict, and "a statute complete in itself, relating to a specific thing, takes precedence over general statutes or over other statutes which deal only incidentally with the same question or which might be construed to relate to it." Breeden,
Your second inquiry concerns compliance with K.S.A.
According to a well-established maxim of statutory construction, expressio unius est exclusio alterius, if the Legislature expressly includes specific items in a statute, it intends to exclude any items not included.State Dept. of Administration v. Public EmployeesRelations Bd.,
In Aves v. Shah,
"In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law." Aves,
258 Kan. at 513 , quoting Todd v. Kelly,251 Kan. 512 ,516 (1992). (Emphasis in original).
A court must also presume that the Legislature intends that an act be interpreted reasonably to avoid unreasonable or absurd results. Foulk v. ColonialTerrace,
The Court has found that in enacting diversion statutes, "the objective sought by the legislature would appear to be to encourage a uniform procedure to provide an alternative to formal conviction of first-time offenders." State v. Greenlee,
If the purpose of the notification requirement is to safeguard a defendant from discrimination by a prosecutor, not informing a traffic offender who does not appear before the court does not violate that purpose because the prosecutor has no control over which traffic offenders make a written rather than a physical court appearance. That decision is made solely by the defendant. In order to meet the notification requirement, the traffic citation form could include notification of diversion and provide for waiving any right to divert along with waiving the right to trial by signing and sending in the citation with the fine payment. Another alternative is to provide copies of diversion policies and guidelines to all law enforcement officers who write traffic citations in the county, and request that the officers provide them to traffic offenders along with the citation.
Although a county attorney has prosecutorial discretion to dismiss a traffic citation without a diversion agreement, in order to carry out the legislative objective to create uniform diversion policies, a county attorney should follow the statutory diversion requirements for traffic offense diversions. In our opinion, the notification provision of K.S.A.
Your final question concerns whether in offering diversion for traffic offenders a county attorney can comply with K.S.A.
"In determining whether diversion of a defendant is in the interests of justice and of benefit to the defendant and the community, the county or district attorney shall consider at least the following factors among all factors considered: . . . (3) 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. . . ." (Emphasis added.)
You note that the State does not keep records of speeding infraction diversions. Therefore, the only indication of whether the defendant has previously participated in diversion is the defendant's own assertion. K.S.A.
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Donna M. Voth Attorney General of Kansas
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