Florida Legislature Makes Third Attempt To Pass Adult Pre-Arrest Diversion

Pre Arrest versus Post Arrest Diversion

Diversion programs are designed within the the criminal justice system to avoid a formal conviction. A pre-arrest diversion program for minors was approved by the Florida Legislature many years ago. "Pre-arrest" avoids a formal arrest and most importantly, a judicial record of that arrest. Although adults can take advantage of post-arrest diversion programs, a law approving a pre-arrest diversion program for adults has never existed. The rationale is likely that adults should be held to a higher standard than juveniles and adults could still take advantage of the "post arrest" Pre-trial intervention program (P.T.I.). Successful completion of PTI results in a dismissal of the charge and eligibility to have the criminal records expunged.

Florida's Failure to Pass Enabling Legislation for APAD - Three Times a Charm?

The Florida legislature has twice before attempted to pass legislation approving a pre-arrest diversion program for adults:

The unconventional law was first proposed under House Bill 1031 and Senate Bill 618. The House of Representatives Staff Analysis for CS/HB 1031 rightly pointed out that although pre-arrest diversion programs for juveniles are approved by Florida law, pre-arrest diversion programs for adults” have never been authorized.

One can only surmise that Pinellas county officials felt very confident that the law would pass. In anticipation of the legislation, Pinellas spent significant money and effort creating the "Adult Pre-Arrest Diversion program (APAD). See Video: You Paid For It: $300,000 Pinellas Arrest Diversion Program Sidesteps Justice System. Unfortunately, Pinellas "lost the bet" since the adult pre-arrest diversion program legislation failed on 3/11/16. Despite the failure to procure an enabling act for APAD and without lawful authorization, on October 17th, 2016 the Pinellas County Sheriff's Office elected to still go ahead with their APAD program. (Read a comprehensive article on how the APAD program works and the constitutional issues raised because of the absence of authorizing legislation.)

A second attempt to pass legislation approving an adult pre arrest diversion program failed again on 5/5/17. This similar law was proposed under House Bill 367 and Senate Bill 448.

Today, Florida State Representative Larry Ahern filed House Bill 1197 which is a companion to Senate Bill 1392 filed late last week.These Bills represent yet a third effort to pass APAD legislation.

How New House Bill 1197 Differs from Pinellas APAD

No Florida law exists giving Pinellas County the authority to create, adopt and administer their current APAD program. Because the Pinellas program is operating without the sanction of the legislature, the program is violating several constitutional protections. This proposed legislation would give the county the authority to enact an APAD program that complies with the proposed new Florida law. (See: lines 1-89)
The House Bill encourages all counties to share data about APAD participants with other Florida counties. Currently, Pinellas county is operating in the dark and may be admitting individuals into their APAD program who would otherwise be ineligible because of their earlier participation in the Leon county APAD program. (See lines 89-91) The House Bill seeks to correct this deficiency by requiring the program to electronically provide the Clerk of Court with each participant’s personal identification information which is required to be maintained in a statewide database. (see lines 139-149)
In Pinellas county, law enforcement officers have no discretion and are required to divert all qualifying individuals into the APAD program. Under the House Bill, law enforcement officers can examine the facts and circumstances of each case and exercise their discretion in deciding which cases are APAD appropriate. (See: Lines 95-99)
The House Bill mandates that only certain individuals are charged with the development and implementation of the APAD program. It does not authorize law enforcement authorities or the Chief Judge of each county to become involved in this process. In Pinellas County, the Chief Judge, Pinellas County Sherriff and all Chiefs of local Police Departments are signatories of the APAD administrative order and APAD operational guidelines. (See; lines 124-134)
The House Bill mandates that in the creation of the APAD program, the authorized representatives creating the program must solicit input from other interested stake holders. In creating the Pinellas County APAD program, several stakeholders were never contacted. These include the criminal defense bar, the Pinellas Association of Criminal Defense Lawyers, the St. Petersburg Bar Association, The Clearwater Bar Association, the Barney Masterson Inn of Court and the Pinellas County Trial Lawyers Association. (See: lines 134-135)
The House Bill enables successful APAD participants to have records related to their case “sealed.” No such provision in the law currently exists. Accordingly, the records of APAD participants are presently available through a simple Public Records Request under Florida Statute Chapter 119.(See lines: 166-172)

How Senate Bill 1392 Differs from House Bill 1197

The Senate Bill includes law enforcement agencies among those charged with the task of developing and implementing the APAD program. (See: SB lines 104-108) The House Bill excludes law enforcement. Neither the Senate Bill or House Bill authorize the Chief Circuit Judge’s participation.
The House Bill requires input from other stakeholders. The Senate Bill merely states that such input “may be solicited.” (See SB lines 276-278)
The Senate Bill discusses pre-existing APAD programs and requires a review by the State Attorney to ensure that their program is “substantially similar” to the model program defined by the new law. (See: SB lines 127-136 and lines 295-310) The House Bill is rightfully silent on the treatment of pre-existing APAD programs since without the passage of the proposed legislation, prior authority for a county to operate an APAD program did not exist.

Our office has consistently opposed the operation of the APAD Program in Pinellas County because it was never created or authorized by state lawmakers. As a result, the court system and the protections of the Federal and Florida Constitutions are regularly side-stepped due to unequal application, errors, omissions, and a lack of any mechanism to correct problems that regularly arise. Although new state legislation would be a "start" towards a more appropriate method of addressing misdemeanor offenders, there are many protections missing in the pending legislative bills. If the Florida Legislature is serious about creating a fair and just "Pre-Arrest Diversion Program" for adults, it should give greater consideration to uniform procedures and implement strict statewide guidelines to prevent abuse and discrimination. As it stands right now, these pending bills are little more than an attempt to retroactively "rubber stamp" the troubled Pinellas APAD Program.

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