Bad diversion agreement

Ryan Eddinger won in State v. Moses, No. 96,897 (Kan. App. Dec. 21, 2007), reversing a Douglas County forgery conviction and remanding for further proceedings. Moses had entered into a diversion agreement and, after violating the terms of the agreement, was convicted by trial on stipulated facts. On appeal, the COA agreed that the diversion agreement did not comply with some fairly strict requirements imposed by statute. Specifically, the agreement failed to include an explicit waiver of any right to a preliminary hearing:

While K.S.A. 22-2909(a) lacks negative language and does not specify a penalty or other consequence for noncompliance, strict compliance with the provision is essential to the preservation of the rights of parties affected. The requirement that the defendant specifically waive certain rights is not simply a technical or procedural requirement, but a condition required for the formation of an enforceable diversion agreement. Accordingly, the term "shall" as used in K.S.A. 22-2909(a) is mandatory rather than directory.

Because the diversion agreement did not contain a specific waiver of Moses' right to a preliminary hearing, as mandated by K.S.A. 22-2909(a), we conclude the agreement was invalid and unenforceable.

As a result, the parties are placed back to their pre-diversion agreement status. This is a standard diversion agreement in Douglas County, so anyone there who would like to have it set aside probably has a good argument. And other practitioners should look closely at the diversion agreement used in other jurisdictions. I expect that Douglas County is probably not the only county with such a deficiency.

[Update: the state did not file a PR and the mandate issued on January 24, 2008.]