Bill Text: FL S1392 | 2018 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Criminal Justice
Spectrum: Bipartisan Bill
Status: (Passed) 2018-04-02 - Chapter No. 2018-127 [S1392 Detail]
Download: Florida-2018-S1392-Introduced.html
Bill Title: Criminal Justice
Spectrum: Bipartisan Bill
Status: (Passed) 2018-04-02 - Chapter No. 2018-127 [S1392 Detail]
Download: Florida-2018-S1392-Introduced.html
Florida Senate - 2018 SB 1392 By Senator Brandes 24-00499C-18 20181392__ 1 A bill to be entitled 2 An act relating to prearrest diversion programs; 3 creating s. 901.40, F.S.; providing legislative 4 findings and intent; encouraging counties, 5 municipalities, and public or private educational 6 institutions to implement prearrest diversion 7 programs; requiring that in each judicial circuit the 8 public defender, the state attorney, the clerks of the 9 court, and representatives of participating law 10 enforcement agencies create a prearrest diversion 11 program and develop its policies and procedures; 12 authorizing such entities to solicit stakeholders for 13 input in developing the program’s policies and 14 procedures; providing requirements for the prearrest 15 diversion program; requiring the state attorney of 16 each circuit to operate the prearrest diversion 17 program; providing an exception; providing 18 construction; requiring the arresting law enforcement 19 officer to make a determination if an adult does not 20 successfully complete the prearrest diversion program; 21 requiring the state attorney or the person operating 22 an independent prearrest diversion program to 23 electronically provide certain information to the 24 clerk of the court; requiring the clerk of the court 25 to maintain the confidentiality of such information; 26 requiring the clerk of the court to maintain that 27 information in a statewide database; amending s. 28 943.0582, F.S.; requiring, rather than authorizing, 29 the Department of Law Enforcement to adopt rules for 30 the expunction of certain nonjudicial records of the 31 arrest of a minor upon his or her successful 32 completion of a certain diversion program; authorizing 33 such expunctions for certain first-time misdemeanor 34 offenses; defining and revising terms; revising the 35 circumstances under which the department must expunge 36 certain nonjudicial arrest records; deleting the 37 department’s authority to charge a processing fee for 38 the expunction; amending s. 985.12, F.S.; providing 39 legislative findings and intent; deleting provisions 40 establishing a juvenile civil citation process with a 41 certain purpose; establishing a civil citation or 42 similar diversion program in each judicial circuit, 43 rather than at the local level with the concurrence of 44 specified persons; requiring that the state attorney 45 and public defender of each circuit, the clerk of the 46 court for each county in the circuit, and 47 representatives of participating law enforcement 48 agencies create a civil citation or similar diversion 49 program and develop its policies and procedures; 50 authorizing such entities to solicit stakeholders for 51 input in developing the program’s policies and 52 procedures; providing requirements for the civil 53 citation or similar diversion program; requiring the 54 state attorney of each judicial circuit to operate the 55 civil citation or similar diversion program; providing 56 an exception; providing construction; requiring the 57 arresting law enforcement officer to make a 58 determination if a juvenile does not successfully 59 complete the civil citation or similar diversion 60 program; deleting provisions relating to the operation 61 of and requirements for a civil citation or similar 62 diversion program; requiring that a copy of each civil 63 citation or similar diversion program notice be 64 provided to the Department of Juvenile Justice; 65 conforming provisions to changes made by the act; 66 deleting provisions relating to requirements for a 67 civil citation or similar diversion program; amending 68 s. 985.125, F.S.; conforming a provision to changes 69 made by the act; creating s. 985.126, F.S.; defining 70 the term “diversion program”; requiring a diversion 71 program to submit to the Department of Law Enforcement 72 a certification for expunction of the nonjudicial 73 arrest record of a juvenile under specified 74 circumstances; requiring a diversion program to submit 75 to the Department of Juvenile Justice specified data 76 relating to diversion programs; requiring the 77 Department of Juvenile Justice to compile and publish 78 the data in a specified manner; authorizing a juvenile 79 under certain circumstances to deny or fail to 80 acknowledge his or her participation in a diversion 81 program or the expunction of a certain nonjudicial 82 arrest record unless an exception applies; providing 83 an effective date. 84 85 Be It Enacted by the Legislature of the State of Florida: 86 87 Section 1. Section 901.40, Florida Statutes, is created to 88 read: 89 901.40 Prearrest diversion programs.— 90 (1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds 91 that the creation and implementation of prearrest diversion 92 programs at the judicial circuit level promotes public safety, 93 aids interagency cooperation, and provides the greatest chance 94 of success for prearrest diversion programs. The Legislature 95 further finds that the widespread use of prearrest diversion 96 programs has a positive effect on the criminal justice system 97 and contributes to an overall reduction in the crime rate and 98 recidivism in the state. The Legislature encourages but does not 99 mandate that counties, municipalities, and public or private 100 educational institutions participate in a prearrest diversion 101 program created by their judicial circuit under this section. 102 (2) JUDICIAL CIRCUIT PREARREST DIVERSION PROGRAM 103 DEVELOPMENT, IMPLEMENTATION, OPERATION.— 104 (a) In each judicial circuit in the state, the public 105 defender, the state attorney, the clerk of the court for each 106 county in the circuit, and representatives of participating law 107 enforcement agencies in the circuit shall create a prearrest 108 diversion program and develop its policies and procedures. In 109 developing the program’s policies and procedures, input from 110 other interested stakeholders may be solicited. 111 (b) Each judicial circuit’s prearrest diversion program 112 must specify: 113 1. The misdemeanor offenses that qualify an adult for 114 participation in the program; 115 2. The eligibility criteria for the program; 116 3. The program’s implementation and operation; 117 4. The program’s requirements, including, but not limited 118 to, the completion of community service hours, payment of 119 restitution, if applicable, and intervention services indicated 120 by a needs assessment of the adult, such as urinalysis 121 monitoring and substance abuse and mental health treatment 122 services; and 123 5. A program fee, if any, to be paid by an adult 124 participating in the program. If the program imposes a fee, the 125 clerk of the court of the applicable county must receive a 126 reasonable portion of the fee. 127 (c) The state attorney of each circuit shall operate a 128 prearrest diversion program in each circuit, except that a 129 sheriff, police department, county, municipality, or public or 130 private educational institution that has an independent 131 prearrest diversion program in operation as of October 1, 2018, 132 may continue to operate it if the independent program is 133 reviewed by the state attorney of the applicable circuit and he 134 or she determines that the independent program is substantially 135 similar to the prearrest diversion program developed by the 136 circuit. If the state attorney determines that the independent 137 program is not substantially similar to the prearrest diversion 138 program developed by the circuit, the operator of the 139 independent diversion program may revise the program and the 140 state attorney may conduct an additional review of the 141 independent program. 142 (d) This section does not prevent a judicial circuit from 143 adopting an existing sheriff, police department, county, 144 municipality, or public or private educational institution’s 145 independent prearrest diversion program as the prearrest 146 diversion program for the circuit. 147 (e) If an adult does not successfully complete the 148 prearrest diversion program, the arresting law enforcement 149 officer shall determine if there is good cause to arrest the 150 adult for the original misdemeanor offense and refer the case to 151 the state attorney to determine if prosecution is appropriate or 152 allow the adult to continue in the program. 153 (f) Upon intake of an adult participating in the prearrest 154 diversion program, the state attorney or the person operating 155 the independent prearrest diversion program shall electronically 156 provide the adult’s personal identifying information to the 157 clerk of the court for the county in which the adult is 158 participating in the prearrest diversion program. Such 159 information is not a court record, and the clerk of the court 160 shall maintain the confidentiality of the adult’s personal 161 identifying information as provided in subsection (3). The clerk 162 of the court shall maintain such information in a statewide 163 database, which must provide a single point of access for all 164 such statewide information. 165 Section 2. Section 943.0582, Florida Statutes, is amended 166 to read: 167 943.0582 Prearrest, postarrest, or teen court diversion 168 program expunction.— 169 (1) Notwithstanding any law dealing generally with the 170 preservation and destruction of public records, the department 171 shall adopt rules tomayprovide, by rule adopted pursuant to172chapter 120,for the expunction of aanynonjudicial record of 173 the arrest of a minor who has successfully completed aprearrest174or postarrestdiversion program for a misdemeanor offenseminors175as authorized by s. 985.125. 176 (2)(a)As used in this section, the term: 177 (a) “Diversion program” means a program under s. 985.12, s. 178 985.125, s. 985.155, or s. 985.16 or a program to which a 179 referral is made by a state attorney under s. 985.15(1)(g). 180 (b) “Expunction” has the same meaning ascribed in and has 181 the same effect as in s. 943.0585, except that: 182 1. SectionThe provisions of s.943.0585(4)(a) doesdonot 183 apply, except that the criminal history record of a person whose 184 record is expunged pursuant to this section shall be made 185 available only to criminal justice agencies for the purpose of: 186 a. Determining eligibility forprearrest, postarrest, or187teen courtdiversion programs; 188 b.when the record is sought as part ofA criminal 189 investigation; or 190 c. Making a prosecutorial decision under s. 985.15; or when191the subject of the record is a candidate for employment with a192criminal justice agency. For all other purposes, a person whose193record is expunged under this section may lawfully deny or fail194to acknowledge the arrest and the charge covered by the expunged195record. 196 2. Records maintained by local criminal justice agencies in 197 the county in which the arrest occurred that are eligible for 198 expunction pursuant to this section shall be sealed as the term 199 is used in s. 943.059. 200(b)As used in this section, the term “nonviolent201misdemeanor” includes simple assault or battery when prearrest202or postarrest diversion expunction is approved in writing by the203state attorney for the county in which the arrest occurred.204 (3) The department shall expunge the nonjudicial arrest 205 record of a minorwho has successfully completed a prearrest or206postarrest diversion programif the minor has never previously 207 received an expunction under this section and the diversion 208 program submits a certification for expunctionthat minor:209(a)Submits an application for prearrest or postarrest210diversion expunction,on a form prescribed by the department,211signed by the minor’s parent or legal guardian, or by the minor212if he or she has reached the age of majority at the time of213applying. 214(b)Submits to the department, with the application, an215official written statement from the state attorney for the216county in which the arrest occurred certifying that he or she217has successfully completed that county’s prearrest or postarrest218diversion program, that his or her participation in the program219was based on an arrest for a nonviolent misdemeanor, and220that he or she has not otherwise been charged by the state221attorney with, or found to have committed, any criminal offense222or comparable ordinance violation.223(c)Participated in a prearrest or postarrest diversion224program that expressly authorizes or permits such expunction.225(d)Participated in a prearrest or postarrest diversion226program based on an arrest for a nonviolent misdemeanor that227would not qualify as an act of domestic violence as that term is228defined in s. 741.28.229(e)Has never been, before filing the application for230expunction, charged by the state attorney with, or found to have231committed, any criminal offense or comparable ordinance232violation.233 (4)The department is authorized to charge a $75 processing234fee for each request received for prearrest or postarrest235diversion program expunction, for placement in the Department of236Law Enforcement Operating Trust Fund, unless such fee is waived237by the executive director.238(5)Expunction or sealing granted under this section does 239 not prevent the minor who receives such relief from petitioning 240 for the expunction or sealing of a later criminal history record 241 as provided for in ss. 943.0583, 943.0585, and 943.059, if the 242 minor is otherwise eligible under those sections. 243 Section 3. Section 985.12, Florida Statutes, is amended to 244 read: 245 985.12 Civil citation or similar diversion programs.— 246 (1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds 247 that the creation and implementation of civil citation or 248 similar diversion programs at the judicial circuit level 249 promotes public safety, aids interagency cooperation, and 250 provides the greatest chance of success for civil citation and 251 similar diversion programs. The Legislature further finds that 252 the widespread use of civil citation and similar diversion 253 programs has a positive effect on the criminal justice system 254 and contributes to an overall reduction in the crime rate and 255 recidivism in the state. The Legislature encourages but does not 256 mandate that counties, municipalities, and public or private 257 educational institutions participate in a civil citation or 258 similar diversion program created by their judicial circuit 259 under this section.There is established a juvenile civil260citation process for the purpose of providing an efficient and261innovative alternative to custody by the Department of Juvenile262Justice for children who commit nonseriousdelinquent acts and263to ensure swift and appropriate consequences. The department264shall encourage and assist in the implementation and improvement265of civil citation programs or other similar diversion programs266around the state.267 (2) JUDICIAL CIRCUIT CIVIL CITATION OR SIMILAR DIVERSION 268 PROGRAM DEVELOPMENT, IMPLEMENTATION AND OPERATION.— 269 (a) AThecivil citation or similar diversion program shall 270 be established in each judicial circuit in the state. Theat the271local level with the concurrence of the chief judge of the272circuit,state attorney and,public defender of each circuit, 273 the clerk of the court for each county in the circuit, and 274 representatives of participating law enforcement agencies in the 275 circuit shall create a civil citation or similar diversion 276 program and develop its policies and procedures. In developing 277 the program’s policies and procedures, input from other 278 interested stakeholders may be solicited. 279 (b) Each judicial circuit’s civil citation or similar 280 diversion program must specify: 281 1. The misdemeanor offenses that qualify a juvenile for 282 participation in the program; 283 2. The eligibility criteria for the program; 284 3. The program’s implementation and operation; 285 4. The program’s requirements, including, but not limited 286 to, the completion of community service hours, payment of 287 restitution, if applicable, and intervention services indicated 288 by a needs assessment of the juvenile, such as family 289 counseling, urinalysis monitoring, and substance abuse and 290 mental health treatment services; and 291 5. A program fee, if any, to be paid by a juvenile 292 participating in the program. If the program imposes a fee, the 293 clerk of the court of the applicable county must receive a 294 reasonable portion of the fee. 295 (c) The state attorney of each circuit shall operate a 296 civil citation or similar diversion program in each circuit, 297 except that a sheriff, police department, county, municipality, 298 or public or private educational institution that has an 299 independent civil citation or similar diversion program in 300 operation as of October 1, 2018, may continue to operate it if 301 the independent program is reviewed by the state attorney of the 302 applicable circuit and he or she determines that the independent 303 program is substantially similar to the civil citation or 304 similar diversion program developed by the circuit. If the state 305 attorney determines that the independent program is not 306 substantially similar to the civil citation or similar diversion 307 program developed by the circuit, the operator of the 308 independent diversion program may revise the program and the 309 state attorney may conduct an additional review of the 310 independent program. 311 (d) This section does not prevent a judicial circuit from 312 adopting an existing sheriff, police department, county, 313 municipality, or public or private educational institution’s 314 independent civil citation or similar diversion program as the 315 civil citation or similar diversion program for the circuit. 316 (e) If a juvenile does not successfully complete the civil 317 citation or similar diversion program, the arresting law 318 enforcement officer shall determine if there is good cause to 319 arrest the juvenile for the original misdemeanor offense and 320 refer the case to the state attorney to determine if prosecution 321 is appropriate or allow the juvenile to continue in the program 322and the head of each local law enforcement agencyinvolved.The323program may be operated by an entity such as a law enforcement324agency, the department, a juvenile assessment center, the county325or municipality, or another entity selected by the county or326municipality. An entity operating the civil citation or similar327diversion program must do so in consultation and agreement with328the state attorney and local law enforcement agencies. Under329such a juvenile civil citation or similar diversion program, a330law enforcement officer, upon making contact with a juvenile who331admits having committed a misdemeanor, may choose to issue a332simple warning or inform the child’s guardian or parent of the333child’s infraction, or may issue a civil citation or require334participation in a similar diversion program, and assess up to33550 community service hours, and require participation in336intervention services as indicated by an assessment of the needs337of the juvenile, including family counseling, urinalysis338monitoring, and substance abuse and mental health treatment339services.340 (f) A copy of each civil citation or similar diversion 341 program notice issued under this section shall be provided to 342 the department, and the department shall enter appropriate 343 information into the juvenile offender information system.Use344of the civil citation or similar diversion program is not345limited to first-time misdemeanors and may be used in up to two346subsequent misdemeanors. If an arrest is made, a law enforcement347officer must provide written documentation as to why an arrest348was warranted.349 (g) At the conclusion of a juvenile’s civil citation 350programor similar diversion program, the state attorneyagency351 operating the program shall report the outcome to the 352 department. The issuance of a civil citation or similar 353 diversion program notice is not considered a referral to the 354 department. 355(2) The department shall develop guidelines for the civil356citation program which include intervention services that are357based upon proven civil citation or similar diversion programs358within the state.359 (h)(3)Upon issuingsucha civil citation or similar 360 diversion program notice, the law enforcement officer shall send 361 a copy oftothe civil citation or similar diversion program 362 notice tocounty sheriff, state attorney, the appropriate intake363office of the department, or the community service performance364monitor designated by the department,the parent or guardian of 365 the child,and to the victim. 366(4) The child shall report to the community service367performance monitor within 7 working days after the date of368issuance of the citation. The work assignment shall be369accomplished at a rate of not less than 5 hours per week. The370monitor shall advise the intake office immediately upon371reporting by the child to the monitor, that the child has in372fact reported and the expected date upon which completion of the373work assignment will be accomplished.374(5) If the child fails to report timely for a work375assignment, complete a work assignment, or comply with assigned376intervention services within the prescribed time, or if the377juvenile commits a subsequent misdemeanor, the law enforcement378officer shall issue a report alleging the child has committed a379delinquent act, at which point a juvenile probation officer380shall process the original delinquent act as a referral to the381department and refer the report to the state attorney for382review.383(6) At the time of issuance of the citation by the law384enforcement officer, such officer shall advise the child that385the child has the option to refuse the citation and to be386referred to the intake office of the department. That option may387be exercised at any time before completion of the work388assignment.389 Section 4. Subsection (3) of section 985.125, Florida 390 Statutes, is amended to read: 391 985.125 Prearrest or postarrest diversion programs.— 392(3) The prearrest or postarrest diversion program may, upon393agreement of the agencies that establish the program, provide394for the expunction of the nonjudicial arrest record of a minor395who successfully completes such a program pursuant to s.396943.0582.397 Section 5. Section 985.126, Florida Statutes, is created to 398 read: 399 985.126 Diversion programs; data collection; denial of 400 participation or expunged record.— 401 (1) As used in this section, the term “diversion program” 402 has the same meaning as in s. 943.0582. 403 (2) Each diversion program shall submit: 404 (a) A certification for expunction to the Department of Law 405 Enforcement of the juvenile’s nonjudicial arrest record under s. 406 943.0582 if the juvenile: 407 1. Successfully completes the diversion program for a 408 first-time misdemeanor offense; and 409 2. Has not otherwise been charged by the state attorney 410 with, or been found to have committed, a criminal offense or 411 comparable ordinance violation. 412 (b) Data to the department in a form prescribed by the 413 department which identifies for each juvenile who participates 414 in the diversion program: 415 1. The race, ethnicity, gender, and age of the juvenile; 416 2. The offense committed, with citation to the specific law 417 establishing the offense; and 418 3. The judicial circuit and county in which the offense was 419 committed and the law enforcement agency that had contact with 420 the juvenile for the offense. 421 (3) The department shall provide the following data for 422 each juvenile who is eligible for the diversion program, but 423 who, instead, is referred to the department, is provided a 424 notice to appear, or is arrested: 425 (a) The data required under paragraph (2)(a); and 426 (b) Whether the juvenile was offered the opportunity to 427 participate in the diversion program. If the juvenile: 428 1. Was not offered such opportunity, the department must 429 attempt to find out the reason the law enforcement officer 430 declined to make the offer. 431 2. Was offered such opportunity, the department must 432 indicate whether the juvenile or his or her parent or legal 433 guardian declined to participate in the diversion program. 434 (4) The department shall compile the data required under 435 subsections (2) and (3) and publish it on the department’s 436 website in a format that is, at a minimum, sortable by judicial 437 circuit, county, law enforcement agency, race or ethnicity, 438 gender, age, and offense committed. 439 (5) A juvenile who successfully completes a diversion 440 program for a first-time misdemeanor offense may lawfully deny 441 or fail to acknowledge his or her participation in the program 442 and an expunction of a nonjudicial arrest record under s. 443 943.0582, unless the inquiry is made by a criminal justice 444 agency, as defined in s. 943.045, for a purpose described in s. 445 943.0582(2)(a)1. 446 Section 6. This act shall take effect October 1, 2018.