Appeal from Douglas District Court; PAULA B. MARTIN, judge.
1. It is a general rule that where strict compliance with a provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system, and dispatch of the public business, the provision is directory. Factors which would indicate that the provisions of a statute or ordinance are mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time than that designated, or (2) a provision for a penalty or other consequence of noncompliance.
2. Although 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 constitutional rights of the parties affected. The requirement that a diversion agreement contain a specific waiver of certain rights is not simply a technical or procedural requirement, but a condition required for the formation of an enforceable diversion agreement. Therefore, the term "shall" as used in K.S.A. 22-2909(a) is mandatory rather than directory.
3. Where the defendant is convicted based upon stipulated facts in a revoked diversion agreement but such agreement omits the statutorily required waiver of the defendant's right to a preliminary hearing, the entire agreement is invalid. Under these circumstances, the conviction must be reversed and the case remanded to the district court so that the defendant may be placed in the same position he or she would have been in absent the diversion agreement.
The opinion of the court was delivered by: Caplinger, J.
Before CAPLINGER, P.J., ELLIOTT and LEBEN, JJ.
Nathan Moses appeals his convictions of forgery and misdemeanor possession of marijuana, alleging the district court erred in trying him based upon stipulated facts contained in a revoked diversion agreement. He asserts the diversion agreement was invalid because it failed to specifically include a waiver of his right to a preliminary examination as required by K.S.A. 22-2909(a).
We agree that the diversion agreement's omission of a waiver of the defendant's right to a preliminary hearing rendered the agreement invalid. Thus, the district court erred in trying Moses based on stipulated facts contained in the agreement, and we reverse and remand this case to the district court so that Moses may be placed in the same position he would have been in absent the diversion agreement.
Factual and Procedural Background
The State charged Moses with forgery, a severity level 8, nonperson felony, in violation of K.S.A. 2003 Supp. 21-3710(a)(1) and possession of marijuana in violation of K.S.A. 65-4162(a)(3). The parties entered into a diversion agreement, which was revoked after Moses failed to comply with its terms. Moses filed a motion to dismiss, which the district court denied. Following a bench trial based upon stipulated facts contained in the diversion agreement, the district court found Moses guilty of both charges.
Moses appeals his conviction arguing the district court erred in relying upon the stipulated facts in the diversion agreement. Moses contends the agreement was invalid and unenforceable because it lacked a waiver of his right to a preliminary hearing, as required by K.S.A. 22-2909(a). The State argues the diversion agreement, if read in its entirety, included the statutory requirements, and the district court appropriately relied upon the stipulated facts in trying Moses.
Whether the diversion agreement complied with the requirements of K.S.A. 22-2909(a) is a question of law to be decided upon uncontroverted facts; hence, our review is plenary and unlimited. See Petty v. ...