by George E. Tragos and Peter A. Sartes
We all know that diversion programs exist and we take advantage of them for many of our clients on a frequent basis, but how many of us actually know the difference between the statutory requirements as opposed to your particular state attorney’s prerogative? How many of us know the effect of the specific terms in the intervention agreement and their effect on the client? Well . . . here is more than you ever wanted to know.
First things first. Pretrial intervention (PTI) is actually provided for through F.S. §948.08 and §948.16. The stated statutory intent of the program is to provide counseling, supervision, education, and, when applicable, medical and psychological services. The felony-level intervention programs are supervised by the Department of Corrections, although the misdemeanor programs can be monitored through contract agencies such as Salvation Army Correctional Services.
Any first offender or person convicted of not more than one nonviolent misdemeanor charged with any misdemeanor or third degree felony is eligible. In addition, a person with a second degree felony charge of possession of a controlled substance enumerated in Ch. 893; prostitution; tampering with evidence; solicitation for possession of controlled substances; or obtaining prescriptions by fraud is also statutorily eligible, as long as he or she is not charged with a crime of violence such as murder, sexual battery, robbery, home-invasion robbery, or carjacking. Further, if the person has no prior felony conviction and has never participated in a prior felony PTI program, he or she is eligible for a pretrial substance abuse, education and treatment program, as long as he/she has never rejected a prior offer of pretrial substance abuse program on the record in the past.
In order to be accepted into a pretrial intervention program, the statute requires that the defendant has consulted with an attorney; voluntarily agrees to participate in the program; knowingly and intelligently waives the right to speedy trial for the duration of the program; and has the consent of the victim, the state, and the judge. The one exception exists with misdemeanor pretrial substance abuse intervention and treatment programs, where eligible defendants may be admitted into the program upon motion by any of the parties, or by the court’s own motion. The time frame discussed in the pretrial intervention statute is a segmented 180-day period. The initial segment calls for the satisfactory participation in the program for 90 days, and then, if “the program administrator and the [s]tate consent and the participation is satisfactory,” the person will have to do a subsequent 90 days. In other words: 90 days minimum participation. It further indicates that at the end of those 180 days, the program administrator must either recommend a return to the normal channels for prosecution, dismissal without prejudice, or continued treatment. In contrast, the substance abuse, education, and treatment program has a mandatory one-year requirement, and the misdemeanor substance abuse program has no specified time frame.
The rest of the terms of pretrial intervention programs is basically the prerogative of the state attorney for the circuit. There are as many different terms in intervention agreements in the state as there are circuits. What the authors have found to be issues of concern are the following.
Acceptance of Guilt or Responsibility
One of the problematic terms that the authors have come across is a requirement that the defendant either accept responsibility or admit guilt as a prerequisite to acceptance into the program. Even though this acceptance of guilt cannot be used as a confession or admission later should the intervention fail and the case reverts to prosecution, it has been known to cause problems with employers whose employee conduct manuals include language about accepting responsibility or guilt as a cause for termination. It has been found that this element may be waived if evidence, such as an excerpt from the client’s employment manual that the provision would adversely affect the defendant, is provided to the state attorney’s office.
Notice to Employer and Visits to Work and School
This element normally causes a considerable amount of grief for a professional client who has hired the attorney for no other reason than the simple fact that the client wants this to go away quickly and quietly. Obviously, the client may not want to notify his or her employer because of possible termination, and the client does not want a probation officer showing up to the work place. If the state attorney is agreeable, this term can be satisfied by substituting the notice requirement with monthly production of pay stubs, and alleviating visits by allowing the probation officer to call during business hours without announcing indentity as the client’s probation officer.
Preclusion to Expunction
This type of requirement seems to defeat the purpose of PTI. The state normally tries to sell the fact that one can seal, but the reality is that sealed documents are far more likely to be discovered by background search firms since the sealed records are not permanently destroyed and inevitably leave a paper trail. In many instances this is not a cause for alarm, but if the client is someone doing business as a federal contractor, or if he or she is a foreign national, sealing verse expunction will make a world of difference to the client.
Mandatory Donation Provisions
The best example of this provision is within the famed DUI diversion program in the Ninth Judicial Circuit (Orlando) where the defendant is required to “make a $250.00 monetary donation to either the Victim Service Center or MADD.” This is not a fine, restitution, cost of supervision, or court cost; it is a monetary donation. As such the client may wish to collect a receipt and notify his or her accountant of this monetary donation during tax season.
Consequences of Violation of Diversion Program
As shown, intervention agreements require consultation with an attorney. The reason is that the violation of the terms of the diversion program can be held against a client on the criminal punishment code scoresheet.1
Community sanction violation points are assessed when a community sanction violation is before the court for sentencing. Six community sanction violation points must be assessed for each violation or if the violation results from a new felony conviction.
Where there are multiple violations, points may be assessed only for each successive violation that follows a continuation of supervision, or modification or revocation of the community sanction before the court for sentencing and are not to be assessed for violation of several conditions of a single community sanction. Multiple counts of community sanction violations before the sentencing court may not be the basis for multiplying the assessment of points.
Legal status violations receive a score of four sentence points and are scored when an offense committed while under legal status is before the court for sentencing. Points for a legal status violation must only be assessed once regardless of the existence of more than one form of legal status at the time an offense is committed or the number of offenses committed while under any form of legal status.
1 See Fla. R. Crim. Pro.704 and 3.992.