There’s a couple things you should know about human nature before we delve into the case law today. First, there’s the ever present Murphy’s Law. I don’t agree that “Anything that can go wrong, will go wrong”, but, I can’t deny the bumper sticker truth of “Sh** Happens”. And, while we’re talking bumper stickers, I prefer the “If Anything Can Go Well, It Will”. That being said, I’m here to tell you that once the government gets involved in your life, you’re probably operating under Murphy’s Law, and not the more fuzzy positive laws out there. It seems to me that the government just doesn’t attract positivity to anyone’s lives (yes, that’s a tad pessimistic, and I have no statistics to back that up).
Remember, American “justice” incarcerates more human beings than any other government on planet earth. Even more than China’s “published rates”. And sure, some countries probably just put folks before a firing squad rather than incarcerate them for life. I get that. So, these incarceration statistics don’t tell the whole story, but they’re still pretty scary. And, Florida’s incarceration rate ranks our state in the Top Ten of all the countries in the world. Yes, business is good. But no, I’m not proud of this.
The good news is, first time offenders have several options that provide a glimmer of hope. First offenders are eligible for programs designed to dismiss all charges–once the citizen completes community service and drug treatment. Usually, these programs are run by the prosecutor’s office, and are called things like “pretrial diversion (PTD)”, pretrial intervention (PTI), or County Diversion Program (CDP). Whatever the title, they all fall under the general heading of “diversion programs”. The prosecutors control the vast majority of these programs, but some programs may be initiated by the judge (even if the state disagrees; click here for more info). In Orange County, Seminole County, and Osceola County, the prosecutors run their own “diversion” programs that require a few hoops to be jumped through, and then the case is dismissed (even DUI’s). It’s a beautiful thing. The question is, what power does the prosecutor have in revoking diversion, once a citizen is enrolled?
This was one of the issues presented to the Third District Court of Appeal in Harris v. Ryan (Fla. 3rd DCA, October 1, 2014, No. 3D14-1595). Three defendants sued the State Attorney’s Office after they were kicked out of pretrial intervention, and their bonds were revoked. All three were kicked out of PTI due to a new arrest. Diversion can be very strict on this issue, in that any new arrest often results in revocation from the program, regardless of how bogus the new arrest may be. That’s a tough pill to swallow, especially when we’re all taught in middle school about that forgotten concept known as “innocent until proven guilty”. Innocent until proven guilty does not apply if you’re in diversion. So, these defendants decided to sue, and lost.
The Pretrial Intervention program statute, found in Section 948.08 of the Florida Statutes, states:
(1) The department shall supervise pretrial intervention programs for persons charged with a crime, before or after any information has been filed or an indictment has been returned in the circuit court. Such programs shall provide appropriate counseling, education, supervision, and medical and psychological treatment as available and when appropriate for the persons released to such programs.
(2) Any first offender, or any person previously convicted of not more than one nonviolent misdemeanor, who is charged with any misdemeanor or felony of the third degree is eligible for release to the pretrial intervention program on the approval of the administrator of the program and the consent of the victim, the state attorney, and the judge who presided at the initial appearance hearing of the offender….
The court’s logic was simple. The problem with Harris’ lawsuit is that it’s the state’s program. They own it. They get to say who gets in, and who gets out. As a result, the state can kick a person out of the program for a new arrest. Plain and simple. And, all of these programs have contracts for the defendant’s to sign. The defendants in this case signed a contract agreeing that their PTI will be terminated if “re-arrested for any criminal offense”. This clause if found in every diversion agreement. So, how do we get around this without a lawsuit. My advice to clients is that they should complete every single requirement of the (now revoked) PTI program before their next court date. Sometimes, prosecutors will agree to nolle pros (drop) the charge once all the conditions are completed, so it’s worth the effort to at least attempt such a resolution. This only works about half the time, but it’s worth a try.