Florida Senate - 2012                                    SB 1730
       By Senator Garcia
       40-01385-12                                           20121730__
    1                        A bill to be entitled                      
    2         An act relating to pretrial intervention programs;
    3         amending s. 948.08, F.S.; revising criteria for
    4         eligibility for admission to a pretrial release
    5         program; requiring that a pretrial intervention
    6         program give admission preference to a defendant
    7         charged with a misdemeanor over a defendant charged
    8         with a felony; specifying requirements for a finding
    9         of indigence and amenability to treatment; requiring
   10         that certain defendants provide liens to secure costs
   11         of supervision; revising a cross-reference; amending
   12         ss. 397.334, 910.035, and 921.0026, F.S.; conforming
   13         cross-references; making technical and grammatical
   14         changes; providing an effective date.
   16  Be It Enacted by the Legislature of the State of Florida:
   18         Section 1. Subsection (2) of section 948.08, Florida
   19  Statutes, is amended, present subsections (3) through (7) are
   20  renumbered as subsections (4) through (8), respectively, a new
   21  subsection (3) is added to that section, and paragraph (c) of
   22  present subsection (6) of that section is amended, to read:
   23         948.08 Pretrial intervention program.—
   24         (2)(a)A defendant Any first offender, or any person
   25  previously convicted of not more than one nonviolent
   26  misdemeanor, who is charged with any misdemeanor or felony of
   27  the third degree is eligible for release to the pretrial
   28  intervention program on the approval of the administrator of the
   29  program and the consent of the victim, the state attorney, and
   30  the judge who presided at the initial appearance hearing of the
   31  offender unless the defendant:
   32         1. Has more than two prior felony arrests;
   33         2. Has a prior felony conviction; or
   34         3. Is charged with a felony of the second degree or higher.
   35         (b)However, The defendant may not be released to the
   36  pretrial intervention program unless, after consultation with
   37  his or her attorney, he or she has voluntarily agreed to such
   38  program and has knowingly and intelligently waived his or her
   39  right to a speedy trial for the period of his or her diversion.
   40  The defendant or the defendant’s immediate family may not
   41  personally contact the victim or the victim’s immediate family
   42  to acquire the victim’s consent under this section.
   43         (c) A pretrial intervention program must give admission
   44  preference to a defendant charged with a misdemeanor over a
   45  defendant charged with a felony.
   46         (3)(a) Before a defendant may be released to the pretrial
   47  release program, there must be:
   48         1. A finding by the court and the program that the
   49  defendant is indigent after consideration of the defendant’s
   50  assets, property, motor vehicle, other financial resources,
   51  employment, and any other necessary facts. The indigence of the
   52  defendant must be determined within 72 hours after the defendant
   53  completes submission of all financial information required by
   54  the court.
   55         2. A finding by the court and the program that the
   56  defendant is amenable to treatment after consideration of the
   57  following:
   58         a. The circumstances of the defendant’s family, employment,
   59  character, mental condition, and length of residence in the
   60  community.
   61         b. The defendant’s record of convictions, appearances at
   62  the court proceedings, flight to avoid prosecution, or failure
   63  to appear at court proceedings.
   64         c. Any other facts necessary to assist in the determination
   65  of whether the defendant should be released to the pretrial
   66  intervention program.
   67         (b) If the defendant hires private counsel to represent
   68  himself or herself, the pretrial intervention program must place
   69  a lien on property of the defendant in order to secure payment
   70  of the costs of supervision under the program.
   71         (7)(6)
   72         (c) At the end of the pretrial intervention period, the
   73  court shall consider the recommendation of the administrator
   74  pursuant to subsection (6) (5) and the recommendation of the
   75  state attorney as to disposition of the pending charges. The
   76  court shall determine, by written finding, whether the defendant
   77  has successfully completed the pretrial intervention program.
   78  Notwithstanding the coordinated strategy developed by a drug
   79  court team pursuant to s. 397.334(4), if the court finds that
   80  the defendant has not successfully completed the pretrial
   81  intervention program, the court may order the defendant person
   82  to continue in education and treatment, which may include
   83  substance abuse treatment programs offered by licensed service
   84  providers as defined in s. 397.311 or jail-based treatment
   85  programs, or order that the charges revert to normal channels
   86  for prosecution. The court shall dismiss the charges upon a
   87  finding that the defendant has successfully completed the
   88  pretrial intervention program.
   89         Section 2. Subsection (2) of section 397.334, Florida
   90  Statutes, is amended to read:
   91         397.334 Treatment-based drug court programs.—
   92         (2) Entry into any pretrial treatment-based drug court
   93  program is shall be voluntary. Except for a case as described in
   94  s. 948.08(7)(a)1. or 2. When neither s. 948.08(6)(a)1. nor 2.
   95  applies, the court may order a defendant an individual to enter
   96  into a pretrial treatment-based drug court program only upon
   97  written agreement by the defendant individual, which must shall
   98  include a statement that the defendant individual understands
   99  the requirements of the program and the potential sanctions for
  100  noncompliance.
  101         Section 3. Subsection (5) of section 910.035, Florida
  102  Statutes, is amended to read:
  103         910.035 Transfer from county for plea and sentence.—
  104         (5) Any person eligible for participation in a drug court
  105  treatment program pursuant to s. 948.08(7) s. 948.08(6) may be
  106  eligible to have the case transferred to a county other than
  107  that in which the charge arose if the drug court program agrees
  108  and if the following conditions are met:
  109         (a) The authorized representative of the drug court program
  110  of the county requesting to transfer the case shall consult with
  111  the authorized representative of the drug court program in the
  112  county to which transfer is desired.
  113         (b) If approval for transfer is received from all parties,
  114  the trial court shall accept a plea of nolo contendere and enter
  115  a transfer order directing the clerk to transfer the case to the
  116  county that which has accepted the defendant into its drug court
  117  program.
  118         (c) The transfer order must shall include a copy of the
  119  probable cause affidavit; any charging documents in the case;
  120  all reports, witness statements, test results, evidence lists,
  121  and other documents in the case; the defendant’s mailing address
  122  and phone number; and the defendant’s written consent to abide
  123  by the rules and procedures of the receiving county’s drug court
  124  program.
  125         (d) After the transfer takes place, the clerk shall set the
  126  matter for a hearing before the drug court program judge, and
  127  the court shall ensure the defendant’s entry into the drug court
  128  program.
  129         (e) Upon successful completion of the drug court program,
  130  the jurisdiction to which the case has been transferred shall
  131  dispose of the case pursuant to s. 948.08(7) s. 948.08(6). If
  132  the defendant does not complete the drug court program
  133  successfully, the jurisdiction to which the case has been
  134  transferred shall dispose of the case within the guidelines of
  135  the Criminal Punishment Code.
  136         Section 4. Paragraph (m) of subsection (2) of section
  137  921.0026, Florida Statutes, is amended to read:
  138         921.0026 Mitigating circumstances.—This section applies to
  139  any felony offense, except any capital felony, committed on or
  140  after October 1, 1998.
  141         (2) Mitigating circumstances under which a departure from
  142  the lowest permissible sentence is reasonably justified include,
  143  but are not limited to:
  144         (m) The defendant’s offense is a nonviolent felony, the
  145  defendant’s Criminal Punishment Code scoresheet total sentence
  146  points under s. 921.0024 are 60 points or fewer, and the court
  147  determines that the defendant is amenable to the services of a
  148  postadjudicatory treatment-based drug court program and is
  149  otherwise qualified to participate in the program as part of the
  150  sentence. As used in For purposes of this paragraph, the term
  151  “nonviolent felony” has the same meaning as provided in s.
  152  948.08(7) s. 948.08(6).
  153         Section 5. This act shall take effect July 1, 2012.