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22-2804. Release after conviction. (1) A person who has been convicted of a crime and is either awaiting sentence or has filed a notice of appeal may be released by the district court under the conditions provided in K.S.A. 22-2802, and amendments thereto, if the court or judge finds that the conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community.

(2) A person who has been convicted of a crime and has filed a notice of appeal to the supreme court or court of appeals shall make application to be released to the court whose judgment is appealed from or to a judge thereof. If an application to such court or judge has been made and denied or action on the application did not afford the relief sought by the applicant, the applicant may make an application for release to the appellate court. An application to the appellate court or a justice or judge thereof shall state the disposition of the application made by the district court or judge. Any application made under this subsection shall be heard after reasonable notice to the prosecuting attorney. Such notice shall be given not less than one day prior to the hearing. Any appearance bond which may be required under this subsection shall be filed in the court from which the appeal was taken.

(3) A person who has been convicted of a crime before a district magistrate judge may, upon taking an appeal to a district judge, apply to be released as provided herein. If the application is made before the case has been referred to the chief judge for assignment, the conditions of release shall be determined by the district magistrate judge from whom the appeal is taken. If the application is made thereafter, the chief judge or the district judge to whom the case has been assigned shall determine the conditions of release. Any appearance bond which may be required under this subsection shall be deposited in the court where it is fixed.

History: L. 1970, ch. 129, § 22-2804; L. 1971, ch. 115, § 1; L. 1976, ch. 163, § 8; L. 1977, ch. 112, § 6; L. 1986, ch. 115, § 57; L. 1999, ch. 57, § 29; July 1.

Source or Prior Law:

62-619.

Law Review and Bar Journal References:

"Of Justice Delayed in Propinquity," Gary N. Gorup, J.K.T.L.A. Vol. XV, No. 2, 17, 21 (1991).

Attorney General's Opinions:

Uniform criminal extradition act; bail. 79-58.

Conditions of release—release prior to trial; appearance bonds. 89-37.

CASE ANNOTATIONS

1. Subsection (3) compared with K.S.A. 22-3609 and 13-611 which are construed to be complementary statutes. City of Overland Park v. Nikias, 209 Kan. 643, 647, 498 P.2d 56.

2. Mentioned in holding that a defendant is to be considered convicted of a crime even though not yet sentenced. State v. Holmes, 222 Kan. 212, 214, 563 P.2d 480.

3. Logical to assume that standards for judging post-conviction release more onerous than pretrial release; only conditions same. Garton v. Marsteller, 545 F. Supp. 994, 997 (1982).

4. Cited in holding that K.S.A. 22-3402 not applicable where defendant not incarcerated solely by reason of charges involved in appeal. State v. Strong, 8 Kan. App. 2d 589, 593, 596, 663 P.2d 668 (1983).

5. Cited in holding defendant released on bond after conviction but prior to sentencing subject to mandatory consecutive sentencing provisions of K.S.A. 21-4608. State v. Sayles, 10 Kan. App. 2d 180, 181, 694 P.2d 918 (1985).

6. Consecutive sentences (K.S.A. 21-4608(4)) required for felony committed while on release for prior felony. State v. Reed, 237 Kan. 685, 688, 690, 703 P.2d 756 (1985).

7. Statute examined where appellate court ruled one cannot be charged with aggravated failure to appear (K.S.A. 21-3814) for absence at probation revocation proceeding. State v. Miller, 15 Kan. App. 2d 566, 568, 811 P.2d 1256 (1991).

8. Whether defendant is entitled to rehearing on motion to modify where state violated plea agreement examined. State v. McDaniel, 20 Kan. App. 2d 883, 885, 893 P.2d 294 (1995).


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