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