If you have received a “Notice of Referral” and have been requested to report within 48 hours to the Pinellas County Jail on 49th Street in Clearwater, it is because you have been accused of a criminal offense. A limited number of misdemeanor offenses qualify under the new APAD program and the law enforcement officer ascertained that you may qualify for participation. Your referral to APAD enabled the law enforcement officer to avoid arresting you or issuing you a “notice to appear” in court in lieu of a physical arrest. All aspects of the APAD program are administered by the “Alternative Sentencing Unit of the Pinellas County Sheriff’s Office.
The decision to issue you a “Notice of Referral” was not discretionary on the part of the investigating officer. To the contrary, the terms of the APAD program expressly state that if the crime is one of the approved criminal offenses and the individual otherwise qualifies, the officer “shall not arrest” and “shall issue a notice of referral” to the APAD program.
It is important to understand that the APAD program is very different from the Pre-Trial Intervention Program (PTI). APAD is for people who were not arrested or charged, whereas PTI participants have been arrested or formally charged with a crime and are already involved in the criminal court system.
Where Do I Report & What Do I need to Bring With Me?
You should report to the “Reception Center” of the Pinellas County Jail located 14400 49th Street North, Clearwater, FL 33762. It will be necessary for you to bring the following three items:
1. State issued photo identification;
2. The “Notice of Referral” issued by the law enforcement officer;
3. Proof that you are covered by health insurance. If you are not covered by health insurance, you will be charged a $5.00 insurance fee to cover medical care for any injuries you could sustain while completing your community service requirement.
Why Does the APAD Program Exist?
There have been roughly 45,000 bookings into the Pinellas County Jail each year. (This number includes both felonies and misdemeanors.) The jail maintains a rather steady general population of about 2,800 inmates. Between supervising the jail, the Safe Harbor Homeless Shelter and the misdemeanor probation program, the PCSO has been managing approximately 7,000 people on an annual basis. The APAD program was developed to decrease the number of people booked into the Pinellas County Jail and prosecuted within the Pinellas County Criminal Court System. It commenced operation on October 17th, 2016. Avoiding the costly expense associated with incarceration and court proceedings was a significant factor that motivated local governmental officials to start the Adult Pre-Arrest Diversion Program. Pinellas officials justify the program in part by contending that it will keep people who commit certain offenses from having a criminal record that could interfere with their future employment, acceptance into academic institutions and avoid housing or occupational licensing problems.
What Misdemeanor Offenses Qualify for the APAD Program?
- Possession of up to ten grams of marijuana or up to 20 grams if it is clearly established that the marijuana is intended solely for personal use and it does not appear ready for sale
- Possession of marijuana paraphernalia
- Possession of alcohol under 21 years of age
- Petit Theft (Under $300)
- Retail Theft (Under $300)
- Criminal mischief (under $1,000 damage)
- Misdemeanor assault (Non domestic related)
- Misdemeanor battery (Must be no injuries or very minor injuries and non-domestic related)
- Disorderly intoxication
*Multiple qualifying offenses from one incident may be referred to APAD and will be considered one referral.
Am I Eligible to Participate in APAD?
In order to qualify to participate in the program, a “risk assessment” must first be performed by an APAD staff member. It also requires compliance with all of the following conditions:
1. You must admit that you committed the criminal offense, acknowledge responsibility for your actions and accept responsibility;
2. You must agree to make restitution to the victim, if applicable;
3. You must not present a safety risk to others;
4. You cannot have a prior misdemeanor adjudication or withhold of adjudication within the preceding two years;
5. You cannot have a prior felony adjudication or withhold of adjudication within the preceding five years;
6. You must not have participated in APAD within the previous three months;
7. The maximum number of times you can participate in APAD is three times;
8. You must have sufficient ties to the Pinellas County community.
What Will Happen if I Fail to Timely Report to the APAD Office at the County Jail?
You are required to report to 14250 49th Street North, Clearwater (near the Pinellas County Jail) within 48 hours for initial screening by the APAD staff. They are responsible for program placement and for imposing appropriate sanctions. The ADAP office is open 24 hours each day, seven days a week. There is no requirement that you make an appointment.
If you fail to timely report to the APAD office the Pinellas County State Attorney’s Office mandates that the APAD staff forward your case within seven days to be reviewed for conventional prosecution within the court system. Depending on the facts and circumstances of your case, along with a review of the evidence, the State Attorney may elect to proceed with a prosecution or find that prosecution is not warranted.
Your failure to timely report or your subsequent non-compliance with the sanctions imposed in your case will cause you to be permanently disqualified from future participation in the APAD program.
If I Agree to Participate in APAD, What Penalties Can I Expect?
- If it is your first time participating in APAD, you will be required to complete 24 hours of community service within thirty days;
- If it is your second time participating in APAD, you will be required to complete 32 hours of community service within sixty days;
- If it is your third time participating in APAD, you will be required to complete 48 hours of community service within ninety days;
The APAD staff currently has an extensive list of governmental entities and non-profit organizations from which to assign you a place to perform your community service obligation.
Other sanctions are tailored to the particular criminal offense. For example, theft related offenses could require attendance at a “shoplifter's awareness” class. If you are accused of a first time possession of marijuana charge, you will not be required to get drug counseling. However, those individuals caught with marijuana on more than one occasion will be required to attend a drug class. Both the “shoplifter’s awareness class and “drug class” are conducted by the PCSO. As a result, there is no charge for participation. If the crime entailed assault or battery, you may be required to attend an anger management class. If a victim suffered a financial loss as a result of your conduct, you will be required to make restitution.
What is the Cost of My Participation in APAD?
There are no monthly cost of supervision fees, as the program is currently fully funded by the Board of County Commissioners in the amount of $360,000 as part of the PCSO budget. All programs offered by the PCSO will be of no cost to the participant. However, program services offered by outside entities carry a fee that will need to be paid by the APAD participant.
Will I Have a Criminal Record if I Complete APAD?
If you participate in the APAD program it means that you were not booked into the county jail. Likewise, you were not issued a “Notice to Appear.” As a result:
- No entry about your case will appear on the PCSO website;
- Because no documents associated with your case will be filed with the Pinellas Clerk of the Court, none will be available for viewing by members of the public at the Clerk’s office. In the same vein, there will be nothing reflected on the Clerk’s Odyssey online website service;
- Because you were not formally arrested or charged with a criminal offense, your name will not appear on an FCIC rap sheet maintained by the Florida Department of Law Enforcement;
- Because you were not formally arrested or charged with a criminal offense, your name will not appear on an NCIC rap sheet maintained by the Federal Bureau of Investigation.
Can Anyone Discover My Participation in APAD?
You should not be misled into believing that records of your admission to the crime and participation in the APAD program do not exist and will therefore be unavailable to the public. To the contrary, in order to effectively administer the APAD program, the Pinellas County Sheriff’s Office is required to maintain a database of participants. Without such a database, they would, for example, be unable to determine how many times you have participated in the APAD program, or whether your failure to complete the program in the past makes you automatically disqualified to participate in the future.
Currently, Florida Statutes Section 943.0585 and 943.059 and Florida Rule of Criminal Procedure 3.692 govern the sealing and expungment of criminal records. No provision of law has been enacted to enable the sealing or expungment of records associated with Pinellas County’s APAD Program.
Florida Statute Section 119.01(1) provides that “It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person.” Thus, although your involvement with law enforcement will not be reflected on an FCIC or NCIC rap sheet, a public records request made to the police agency who issued you the “notice of referral” or to the PCSO who administers the APAD program would reveal information about your case.
What is the Legality of the APAD Program?
Our legal research revealed that legislation for an adult pre-arrest diversion program failed on 3/11/16 under House Bill 1031 and Senate Bill 618. The House of Representatives Staff Analysis for CS/HB 1031 concerning the proposed legislation to create F.S. ss. 901.40 for an Adult Pre-Arrest Diversion Program points out that although pre-arrest diversion programs for juveniles are authorized under Florida law, “Florida law does not specifically address adult civil citation programs or other pre-arrest diversion programs for adults.” It was for this very reason that the legislature felt the need to pass Florida Statute Section 901.40 as an “enabling act” approving pre-arrest diversion programs for adults. Thus, although the Pre-Trial Intervention Program (i.e., post-arrest “diversion”) is authorized by Florida Statute Section 948.08, no statutory approval currently exists for an adult pre-arrest diversion program.
Nevertheless, the failure of the legislation didn’t stop local Pinellas “Stake Holders” (the State Attorney, local police chiefs, Clerk of Court, Chief Judge and the Public Defender) from creating APAD by entering into a (MOU) Memorandum of Understanding. It is interesting to note that the Pinellas Association of Criminal Defense Lawyers, The Florida Association of Criminal Defense Attorneys, nor the Pinellas County Board of Commissioners were included as “Stakeholders.”
A memorandum of understanding (MOU) “describes a bilateral or multilateral agreement between two or more parties. It expresses a convergence of will between the parties, indicating an intended common line of action. It is often used in cases where parties either do not imply a legal commitment or in situations where the parties cannot create a legally enforceable agreement.”(Emphasis added)
Pinellas County and local municipalities could have legally enacted non-criminal civil citation laws as Hillsborough County recently did for Possession of Marijuana offenses. However, Pinellas County Government officials chose not to do so. The Pinellas (MOU) is an agreement to ignore Florida Law as it pertains to the prosecution of certain misdemeanor offenses. The stakeholders appear to be agreeing to “look the other way” when it comes to certain misdemeanor crimes. They also have agreed amongst themselves not to interfere with law enforcement’s plans for the APAD Program. It is, in essence, saying “I won’t complain, if you don’t complain.”
Does The Victim Have Any Input?
There are further potential legal problems with respect to the APAD program as it pertains to victims. Six of the twelve qualifying offenses typically involve a victim. Yet, unlike the PTI program, the victim is not asked if they object to the accused’s participation in APAD. In fact, such an objection is “irrelevant” to the participant’s eligibility and plays no factor whatsoever in the case. The program solicits no input from a victim other than for an APAD staff member to inquire about the amount of restitution due. In the event of a dispute over the restitution amount, no process or procedure is available to reconcile the issue. If the accused simply fails to pay the restitution, there is no opportunity for a judge to order a default judgment in favor of the victim. In fact, the only remedy available to the APAD staff is to declare the accused “unsuccessful” in completing the terms of the program. His only penalty for failure to meet the restitution requirement will be that he is forever thereafter precluded in the future from participating in the APAD program. If more than seven days have passed since the date of the original incident, referral to the State Attorney’s office for prosecution is prohibited.
The failure to fully involve a victim in the APAD process appears to be in direct conflict with the spirit, purpose and intent of Section 16, Article 1 of the Florida Constitution and Florida Statute Section 960.0021. The “Victim Rights” afforded by this legislation affords victims the absolute right to be informed, heard and to also make an oral or written impact statement. Florida Statute Section 960.001 provides a host of additional mandatory requirements associated with crime victims.
Will All People Have Equal Access to APAD?
Because this was a locally created program, as opposed to a state wide initiative, there are inherent problems:
- If a qualified individual is caught committing one of the specified offenses he is on track to avoid arrest unless the investigating officer is a member of the Florida Highway Patrol. That particular law enforcement agency has not agreed to participate in APAD. The absence of a state law governing the parameters of a pre-arrest diversion program gives the FHP the right to continue arresting individuals for the very same crimes the FHP’s local counterparts are writing APAD Notice of Referrals;
- Let’s say Spring Break season arrives and Pinellas County gets its anticipated influx of celebrating college students. If a University of Florida college student from Gainesville is observed smoking marijuana on St. Pete Beach with a local St. Pete USF student, the investigating PCSO Sheriff Deputy will be forced to treat each person differently. The USF student avoids arrest, but the UF student lacks local ties to the community and is now saddled with a criminal record. If you are a local Pinellas County resident, you avoid arrest and prosecution. But if you are a tourist or snow bird and violate the law, you will arrive on vacation and leave on probation.
The Separation of Powers Problem
The government of the United States and the State of Florida is based on the concept of “limited government,” also referred to as a system of “checks and balances.” Generally, this principle is illustrated by the fact that the government is divided into three different branches, each with its own powers and responsibilities. The Legislative Branch is responsible for creating the law, the Executive Branch is responsible for enforcing the law, and the Judicial Branch is responsible for administering and interpreting the law. Because each branch of government has its own duties and powers, none of the branches of government can become all powerful or in full control of any one aspect of the law.
The APAD Program fundamentally violates the Separation of Powers doctrine because it establishes law enforcement as the creator, enforcer, and administrator of the law. In essence, the “stake holders” have, without the authorization of the Florida Legislature, designated certain misdemeanor offenses that are no longer “crimes” in the practical sense and decided that they will simply not make an arrest despite the existence of probable cause to believe a crime has been committed. The police then administer the law through a system of “punishments” or “sanctions” designed by the very same agency that made the accusation of criminal conduct. The court system is completely circumvented, along with all of the protections afforded by the U.S. Constitution, the Florida Constitution, the Florida Statutes, and 240 years of legal jurisprudence. Said another way, the APAD Program is a method for law enforcement to accuse a person of a crime, extract an admission of guilt, impose a punishment, and then ascertain whether the participant fulfilled the terms of the punishment. The fear of a system that operates in this manner has long found expression in the saying, “Judge, Jury, and Executioner.”
In Constitutional Law, a violation of the Separation of Powers by one branch of government into the affairs of another branch of government is referred to as “encroachment.” Historically The U.S. Supreme Court and the Florida Supreme Court have shown very little tolerance for efforts to drain power from one branch of government for the purpose of consolidating it in another branch.
Violation of Constitutional Rights
The United States Constitution and the Florida Constitution guarantee certain rights to every person who is accused of a crime. These rights were not arrived at by accident. Rather, the bitter experience of the founding fathers during the colonial period leading up to the American Revolution caused them to enshrine these protections in the document that set forth how the United States was to be governed forever after. The founding fathers had seen first hand how forced confessions, deprivation of legal counsel, and secret courts had been used as effective instruments of oppression and tyranny.
The APAD Program runs afoul of many of the protections that are guaranteed by the U.S. and Florida Constitutions. These problems include:
- No right to counsel (A violation of the sixth amendment);
- Requiring a confession or admission to a police officer at the time of the investigation in order to avoid arrest (a violation of the right to remain silent found in the fifth amendment, commonly referred to as “Miranda Warnings”);
- Treating similarly situated people differently (a violation of equal protection as found in the 14th amendment);
- Selectively prosecuting/arresting certain misdemeanor offenses while “diverting” other misdemeanor offenses arbitrarily (a violation of due process protections in the fifth amendment and equal protection as found in the 14th amendment); and
- Imposing a punishment without providing an individual with the right to examine the evidence against him, confront witnesses, or otherwise contest the charge (a violation of the fifth, sixth, and fourteenth amendments).
The Legal and Practical Questions Raised by the APAD Program are Cause for Concern
- The questionable authority in creating the original APAD program absent enabling statutory legislation;
- The failure of the program to be employed by all law enforcement agencies empowered with enforcing the law within Pinellas County;
- The program’s failure to properly address the rights of crime victims;
- The failure to make the program available in an equal and fair manner to all persons accused of a “qualifying” criminal offense within the borders of Pinellas County;
- The encroachment of the executive branch (i.e., law enforcement) into the judicial branch;
- The routine violation of due process, right to counsel, and the right to remain silent that is inherent in the program;
- The securing of a coerced admission to the crime based on a promise that if the accused person admits to the offense he will avoid arrest; and
- Rank and file law enforcement officers have been expressing their displeasure about APAD and are exposing practical problems. For example, what happens to evidence secured through a “search incident to an arrest” if the subject is subsequently deemed immune from arrest under the APAD guidelines?
Do We Provide Legal Representation for APAD Clients?
Our office is comprised of three highly experienced criminal defense attorneys. Each of us previously served as a state prosecutor. We only represent clients who have been formally arrested or charged with DUI, misdemeanor and felony offenses. Because the APAD Program does not involve the court system and is, in our opinion, not authorized by Florida Law, we are unable to offer any help or advice to individuals who find themselves given a “Notice of Referral.”
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