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Rule 19 Class d pre-trial diversion protocol

Baldwin's Kentucky Revised Statutes Annotated23rd Judicial Circuit - Estill, Lee and Owsley Circuit Court

Baldwin's Kentucky Revised Statutes Annotated
23rd Judicial Circuit - Estill, Lee and Owsley Circuit Court
KY ELOC Rule 19
Rule 19 Class d pre-trial diversion protocol
Currentness
RULE 1901. DEFINITION
Pre-trial diversion is the postponement of imposition of sentence upon any person who qualifies for this program for a period of time not to exceed five (5) years subject to certain conditions established by the Court.
RULE 1902. PERSONS ELIGIBLE
(a) Any person charged with a Class D Felony offense who has not had a felony conviction for the previous ten (10) years from the commission of the current offense or who has not been on probation or parole or released from felony incarceration within the previous ten (10) years from the commission of the current offense shall be eligible for pre-trial diversion.
(b) The person charged must enter a plea of guilty (or Alford plea) before becoming eligible for pre-trial diversion.
(c) Persons not eligible for probation, parole, or conditional discharge under KRS 532.045 shall not be eligible for this program.
(d) A person convicted of a felony offense involving driving under the influence shall not be eligible for this program.
(e) No person shall be eligible for this program more than once in any five (5) year period.
(f) No person shall be eligible for this program who has committed a sex crime as defined in KRS 17.500.
RULE 1903. PROCEDURE
(a) An eligible person may petition the Circuit Court, with notice to the Commonwealth's Attorney, for the entry of a pre-trial diversion order not less than fourteen (14) days before trial.
(b) In applying for pre-trial diversion, counsel for the defendant must state, and the defendant must agree on the record, that in the event diversion is granted, any right to a speedy trial or disposition of the charge against him/her is waived.
(c) The Commonwealth's Attorney shall make a recommendation to the Court in writing in response to each petition.
(d) Before making a recommendation to the Court, the Commonwealth's Attorney shall:
(1) Have a criminal record check made by telephoning Pretrial Services at the Administrative Office of the Courts (AOC) at 1-800-928-6381 or faxing the request to (502) 573-1669. DO NOT send requests to the local Pretrial Services Officer.
(2) Interview and seek input from the victim and/or the victim's family and advise them of the time, date, and place of the hearing of the petition by the Court; and
(3) Make recommendations to the Court in writing of conditions for pre-trial diversion.
RULE 1904. ORDER OF PRE-TRIAL DIVERSION
(a) The Court may, in its discretion, order pre-trial diversion for eligible petitioners upon terms and conditions which it deems appropriate. (AOC Form 345)
(b) The Order of Diversion shall include:
(1) Restitution, if applicable;
(2) Whether the diversion shall be supervised or unsupervised (and include supervision fees, if applicable);
(3) Duration of the diversion;
(4) A requirement that the defendant obey all rules and regulations imposed by Probation & Parole; and
(5) As required by KRS 533.030(1) (conditions of probation-restitution), a directive requiring the defendant to not commit any offense during the period of the pretrial diversion and specifically directing the defendant to comply with any other provisions of KRS 533.030 or any other conditions the Court deems appropriate.
(c) The Order of Diversion may include:
(1) That the petitioner remain drug and alcohol free and be subject to random testing;
(2) That the petitioner have no violation of the Penal Code or the Controlled Substances Act; and
(3) That the petitioner possess no firearm or any other deadly weapon.
(d) The duration of pre-trial diversion shall not exceed five (5) years without the agreement of the petitioner. The duration of the diversion shall not be less than the time required to make restitution in full.
RULE 1905. VOIDING A DIVERSION ORDER
(a) After a hearing, with notice to the Commonwealth and to the defendant, the Court may void a person's participation in pre-trial diversion upon a showing of failure to comply with the conditions of diversion or a failure to make satisfactory progress. AOC Form 346, styled Order Voiding Pre-trial Diversion of a Class D Felony, was designed for this purpose.
(b) If an order of pre-trial diversion is voided, the defendant shall be sentenced according to law based on his/her prior plea of guilty/plea pursuant to North Carolina v. Alford.
(c) Under KRS 533.256(2), the same criteria applicable to a probation revocation hearing apply to a proceeding to void an order granting diversion. Pursuant to KRE 1101(d)(5), the Rules of Evidence are inapplicable in miscellaneous proceedings such as those revoking probation. A hearing to determine whether an order granting diversion should be voided also constitutes a miscellaneous proceeding, and therefore the Rules of Evidence are inapplicable.
RULE 1906. COMPLETION OF DIVERSION PROGRAM
If the defendant successfully completes the provisions of the pre-trial diversion agreement, the charges against the defendant shall be dismissed.

Credits

HISTORY: Amended effective June 13, 2017. Prior amendments effective May 8, 2014.
Estill, Lee and Owsley Circuit Court Rule 19, KY R ESTILL LEE OWSLEY CIR CT Rule 19
Current with amendments received through November 15, 2023. Some rules may be more current, see credits for details.
End of Document