Florida Senate - 2018                             CS for SB 1392
       
       
        
       By the Committee on Criminal Justice; and Senator Brandes
       
       
       
       
       
       591-02326-18                                          20181392c1
    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; requiring the Department of Juvenile
   53         Justice to annually develop and provide guidelines on
   54         civil citation or similar diversion programs to the
   55         judicial circuits; providing requirements for the
   56         civil citation or similar diversion program; requiring
   57         the state attorney of each judicial circuit to operate
   58         the civil citation or similar diversion program;
   59         providing an exception; providing construction;
   60         requiring the arresting law enforcement officer to
   61         make a determination if a juvenile does not
   62         successfully complete the civil citation or similar
   63         diversion program; deleting provisions relating to the
   64         operation of and requirements for a civil citation or
   65         similar diversion program; requiring that a copy of
   66         each civil citation or similar diversion program
   67         notice be provided to the Department of Juvenile
   68         Justice; conforming provisions to changes made by the
   69         act; deleting provisions relating to requirements for
   70         a civil citation or similar diversion program;
   71         amending s. 985.125, F.S.; conforming a provision to
   72         changes made by the act; creating s. 985.126, F.S.;
   73         defining the term “diversion program”; requiring a
   74         diversion program to submit to the Department of Law
   75         Enforcement a certification for expunction of the
   76         nonjudicial arrest record of a juvenile under
   77         specified circumstances; requiring a diversion program
   78         to submit to the Department of Juvenile Justice
   79         specified data relating to diversion programs;
   80         requiring each law enforcement agency to submit to the
   81         Department of Juvenile Justice specified data about
   82         juveniles eligible to participate in diversion
   83         programs; requiring the Department of Juvenile Justice
   84         to compile and publish the data in a specified manner;
   85         authorizing a juvenile under certain circumstances to
   86         deny or fail to acknowledge his or her participation
   87         in a diversion program or the expunction of a certain
   88         nonjudicial arrest record unless an exception applies;
   89         providing an effective date.
   90          
   91  Be It Enacted by the Legislature of the State of Florida:
   92  
   93         Section 1. Section 901.40, Florida Statutes, is created to
   94  read:
   95         901.40 Prearrest diversion programs.—
   96         (1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
   97  that the creation and implementation of prearrest diversion
   98  programs at the judicial circuit level promotes public safety,
   99  aids interagency cooperation, and provides the greatest chance
  100  of success for prearrest diversion programs. The Legislature
  101  further finds that the widespread use of prearrest diversion
  102  programs has a positive effect on the criminal justice system
  103  and contributes to an overall reduction in the crime rate and
  104  recidivism in the state. The Legislature encourages but does not
  105  mandate that counties, municipalities, and public or private
  106  educational institutions participate in a prearrest diversion
  107  program created by their judicial circuit under this section.
  108         (2) JUDICIAL CIRCUIT PREARREST DIVERSION PROGRAM
  109  DEVELOPMENT, IMPLEMENTATION, OPERATION.—
  110         (a) In each judicial circuit in the state, the public
  111  defender, the state attorney, the clerk of the court for each
  112  county in the circuit, and representatives of participating law
  113  enforcement agencies in the circuit shall create a prearrest
  114  diversion program and develop its policies and procedures. In
  115  developing the program’s policies and procedures, input from
  116  other interested stakeholders may be solicited.
  117         (b) Each judicial circuit’s prearrest diversion program
  118  must specify:
  119         1. The misdemeanor offenses that qualify an adult for
  120  participation in the program;
  121         2. The eligibility criteria for the program;
  122         3.The program’s implementation and operation;
  123         4. The program’s requirements, including, but not limited
  124  to, the completion of community service hours, payment of
  125  restitution, if applicable, and intervention services indicated
  126  by a needs assessment of the adult, such as urinalysis
  127  monitoring and substance abuse and mental health treatment
  128  services; and
  129         5. A program fee, if any, to be paid by an adult
  130  participating in the program. If the program imposes a fee, the
  131  clerk of the court of the applicable county must receive a
  132  reasonable portion of the fee.
  133         (c) The state attorney of each circuit shall operate a
  134  prearrest diversion program in each circuit. A sheriff, police
  135  department, county, municipality, or public or private
  136  educational institution may continue to operate an independent
  137  prearrest diversion program that is in operation as of October
  138  1, 2018, if the independent program is reviewed by the state
  139  attorney of the applicable circuit and he or she determines that
  140  the independent program is substantially similar to the
  141  prearrest diversion program developed by the circuit. If the
  142  state attorney determines that the independent program is not
  143  substantially similar to the prearrest diversion program
  144  developed by the circuit, the operator of the independent
  145  diversion program may revise the program and the state attorney
  146  may conduct an additional review of the independent program.
  147         (d) A judicial circuit may model an existing sheriff,
  148  police department, county, municipality, or public or private
  149  educational institution’s independent prearrest diversion
  150  program in developing the prearrest diversion program for the
  151  circuit.
  152         (e) If an adult does not successfully complete the
  153  prearrest diversion program, the arresting law enforcement
  154  officer shall determine if there is good cause to arrest the
  155  adult for the original misdemeanor offense and refer the case to
  156  the state attorney to determine if prosecution is appropriate or
  157  allow the adult to continue in the program.
  158         (f) Upon intake of an adult participating in the prearrest
  159  diversion program, the state attorney or the person operating
  160  the independent prearrest diversion program shall electronically
  161  provide the adult’s personal identifying information to the
  162  clerk of the court for the county in which the adult is
  163  participating in the prearrest diversion program. Such
  164  information is not a court record, and the clerk of the court
  165  shall maintain the confidentiality of the adult’s personal
  166  identifying information as provided in subsection (3). The clerk
  167  of the court shall maintain such information as a separate
  168  component of the Comprehensive Case Information System created
  169  and operated pursuant to s. 28.24, which must provide a single
  170  point of access for all such statewide information.
  171         Section 2. Section 943.0582, Florida Statutes, is amended
  172  to read:
  173         943.0582 Prearrest, postarrest, or teen court diversion
  174  program expunction.—
  175         (1) Notwithstanding any law dealing generally with the
  176  preservation and destruction of public records, the department
  177  shall adopt rules to may provide, by rule adopted pursuant to
  178  chapter 120, for the expunction of a any nonjudicial record of
  179  the arrest of a minor who has successfully completed a prearrest
  180  or postarrest diversion program for a misdemeanor offense minors
  181  as authorized by s. 985.125.
  182         (2)(a) As used in this section, the term:
  183         (a)“Diversion program” means a program under s. 985.12, s.
  184  985.125, s. 985.155, or s. 985.16 or a program to which a
  185  referral is made by a state attorney under s. 985.15(1)(g).
  186         (b) “Expunction” has the same meaning ascribed in and has
  187  the same effect as in s. 943.0585, except that:
  188         1. Section The provisions of s. 943.0585(4)(a) does do not
  189  apply, except that the criminal history record of a person whose
  190  record is expunged pursuant to this section shall be made
  191  available only to criminal justice agencies for the purpose of:
  192         a. Determining eligibility for prearrest, postarrest, or
  193  teen court diversion programs;
  194         b.when the record is sought as part of A criminal
  195  investigation; or
  196         c.Making a prosecutorial decision under s. 985.15; or when
  197  the subject of the record is a candidate for employment with a
  198  criminal justice agency. For all other purposes, a person whose
  199  record is expunged under this section may lawfully deny or fail
  200  to acknowledge the arrest and the charge covered by the expunged
  201  record.
  202         2. Records maintained by local criminal justice agencies in
  203  the county in which the arrest occurred that are eligible for
  204  expunction pursuant to this section shall be sealed as the term
  205  is used in s. 943.059.
  206         (b)As used in this section, the term “nonviolent
  207  misdemeanor” includes simple assault or battery when prearrest
  208  or postarrest diversion expunction is approved in writing by the
  209  state attorney for the county in which the arrest occurred.
  210         (3) The department shall expunge the nonjudicial arrest
  211  record of a minor who has successfully completed a prearrest or
  212  postarrest diversion program if the minor has never previously
  213  received an expunction under this section and the diversion
  214  program submits a certification for expunction that minor:
  215         (a)Submits an application for prearrest or postarrest
  216  diversion expunction, on a form prescribed by the department,
  217  signed by the minor’s parent or legal guardian, or by the minor
  218  if he or she has reached the age of majority at the time of
  219  applying.
  220         (b)Submits to the department, with the application, an
  221  official written statement from the state attorney for the
  222  county in which the arrest occurred certifying that he or she
  223  has successfully completed that county’s prearrest or postarrest
  224  diversion program, that his or her participation in the program
  225  was based on an arrest for a nonviolent misdemeanor, and
  226  that he or she has not otherwise been charged by the state
  227  attorney with, or found to have committed, any criminal offense
  228  or comparable ordinance violation.
  229         (c)Participated in a prearrest or postarrest diversion
  230  program that expressly authorizes or permits such expunction.
  231         (d)Participated in a prearrest or postarrest diversion
  232  program based on an arrest for a nonviolent misdemeanor that
  233  would not qualify as an act of domestic violence as that term is
  234  defined in s. 741.28.
  235         (e)Has never been, before filing the application for
  236  expunction, charged by the state attorney with, or found to have
  237  committed, any criminal offense or comparable ordinance
  238  violation.
  239         (4) The department is authorized to charge a $75 processing
  240  fee for each request received for prearrest or postarrest
  241  diversion program expunction, for placement in the Department of
  242  Law Enforcement Operating Trust Fund, unless such fee is waived
  243  by the executive director.
  244         (5) Expunction or sealing granted under this section does
  245  not prevent the minor who receives such relief from petitioning
  246  for the expunction or sealing of a later criminal history record
  247  as provided for in ss. 943.0583, 943.0585, and 943.059, if the
  248  minor is otherwise eligible under those sections.
  249         Section 3. Section 985.12, Florida Statutes, is amended to
  250  read:
  251         985.12 Civil citation or similar diversion programs.—
  252         (1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
  253  that the creation and implementation of civil citation or
  254  similar diversion programs at the judicial circuit level
  255  promotes public safety, aids interagency cooperation, and
  256  provides the greatest chance of success for civil citation and
  257  similar diversion programs. The Legislature further finds that
  258  the widespread use of civil citation and similar diversion
  259  programs has a positive effect on the criminal justice system
  260  and contributes to an overall reduction in the crime rate and
  261  recidivism in the state. The Legislature encourages but does not
  262  mandate that counties, municipalities, and public or private
  263  educational institutions participate in a civil citation or
  264  similar diversion program created by their judicial circuit
  265  under this section. There is established a juvenile civil
  266  citation process for the purpose of providing an efficient and
  267  innovative alternative to custody by the Department of Juvenile
  268  Justice for children who commit nonserious delinquent acts and
  269  to ensure swift and appropriate consequences. The department
  270  shall encourage and assist in the implementation and improvement
  271  of civil citation programs or other similar diversion programs
  272  around the state.
  273         (2) JUDICIAL CIRCUIT CIVIL CITATION OR SIMILAR DIVERSION
  274  PROGRAM DEVELOPMENT, IMPLEMENTATION AND OPERATION.—
  275  (a) A The civil citation or similar diversion program shall be
  276  established in each judicial circuit in the state. The at the
  277  local level with the concurrence of the chief judge of the
  278  circuit, state attorney and, public defender of each circuit,
  279  the clerk of the court for each county in the circuit, and
  280  representatives of participating law enforcement agencies in the
  281  circuit shall create a civil citation or similar diversion
  282  program and develop its policies and procedures. In developing
  283  the program’s policies and procedures, input from other
  284  interested stakeholders may be solicited. The department shall
  285  annually develop and provide guidelines on best practice models
  286  for civil citation or similar diversion programs to the judicial
  287  circuits as a resource.
  288         (b) Each judicial circuit’s civil citation or similar
  289  diversion program must specify:
  290         1. The misdemeanor offenses that qualify a juvenile for
  291  participation in the program;
  292         2. The eligibility criteria for the program;
  293         3. The program’s implementation and operation;
  294         4. The program’s requirements, including, but not limited
  295  to, the completion of community service hours, payment of
  296  restitution, if applicable, and intervention services indicated
  297  by a needs assessment of the juvenile, approved by the
  298  department, such as family counseling, urinalysis monitoring,
  299  and substance abuse and mental health treatment services; and
  300         5. A program fee, if any, to be paid by a juvenile
  301  participating in the program. If the program imposes a fee, the
  302  clerk of the court of the applicable county must receive a
  303  reasonable portion of the fee.
  304         (c) The state attorney of each circuit shall operate a
  305  civil citation or similar diversion program in each circuit. A
  306  sheriff, police department, county, municipality, or public or
  307  private educational institution may continue to operate an
  308  independent civil citation or similar diversion program that is
  309  in operation as of October 1, 2018, if the independent program
  310  is reviewed by the state attorney of the applicable circuit and
  311  he or she determines that the independent program is
  312  substantially similar to the civil citation or similar diversion
  313  program developed by the circuit. If the state attorney
  314  determines that the independent program is not substantially
  315  similar to the civil citation or similar diversion program
  316  developed by the circuit, the operator of the independent
  317  diversion program may revise the program and the state attorney
  318  may conduct an additional review of the independent program.
  319         (d)A judicial circuit may model an existing sheriff,
  320  police department, county, municipality, or public or private
  321  educational institution’s independent civil citation or similar
  322  diversion program in developing the civil citation or similar
  323  diversion program for the circuit.
  324         (e) If a juvenile does not successfully complete the civil
  325  citation or similar diversion program, the arresting law
  326  enforcement officer shall determine if there is good cause to
  327  arrest the juvenile for the original misdemeanor offense and
  328  refer the case to the state attorney to determine if prosecution
  329  is appropriate or allow the juvenile to continue in the program
  330  and the head of each local law enforcement agency involved. The
  331  program may be operated by an entity such as a law enforcement
  332  agency, the department, a juvenile assessment center, the county
  333  or municipality, or another entity selected by the county or
  334  municipality. An entity operating the civil citation or similar
  335  diversion program must do so in consultation and agreement with
  336  the state attorney and local law enforcement agencies. Under
  337  such a juvenile civil citation or similar diversion program, a
  338  law enforcement officer, upon making contact with a juvenile who
  339  admits having committed a misdemeanor, may choose to issue a
  340  simple warning or inform the child’s guardian or parent of the
  341  child’s infraction, or may issue a civil citation or require
  342  participation in a similar diversion program, and assess up to
  343  50 community service hours, and require participation in
  344  intervention services as indicated by an assessment of the needs
  345  of the juvenile, including family counseling, urinalysis
  346  monitoring, and substance abuse and mental health treatment
  347  services.
  348         (f) A copy of each civil citation or similar diversion
  349  program notice issued under this section shall be provided to
  350  the department, and the department shall enter appropriate
  351  information into the juvenile offender information system. Use
  352  of the civil citation or similar diversion program is not
  353  limited to first-time misdemeanors and may be used in up to two
  354  subsequent misdemeanors. If an arrest is made, a law enforcement
  355  officer must provide written documentation as to why an arrest
  356  was warranted.
  357         (g) At the conclusion of a juvenile’s civil citation
  358  program or similar diversion program, the state attorney or
  359  operator of the independent program agency operating the program
  360  shall report the outcome to the department. The issuance of a
  361  civil citation or similar diversion program notice is not
  362  considered a referral to the department.
  363         (2) The department shall develop guidelines for the civil
  364  citation program which include intervention services that are
  365  based upon proven civil citation or similar diversion programs
  366  within the state.
  367         (h)(3) Upon issuing such a civil citation or similar
  368  diversion program notice, the law enforcement officer shall send
  369  a copy of to the civil citation or similar diversion program
  370  notice to county sheriff, state attorney, the appropriate intake
  371  office of the department, or the community service performance
  372  monitor designated by the department, the parent or guardian of
  373  the child, and to the victim.
  374         (4) The child shall report to the community service
  375  performance monitor within 7 working days after the date of
  376  issuance of the citation. The work assignment shall be
  377  accomplished at a rate of not less than 5 hours per week. The
  378  monitor shall advise the intake office immediately upon
  379  reporting by the child to the monitor, that the child has in
  380  fact reported and the expected date upon which completion of the
  381  work assignment will be accomplished.
  382         (5) If the child fails to report timely for a work
  383  assignment, complete a work assignment, or comply with assigned
  384  intervention services within the prescribed time, or if the
  385  juvenile commits a subsequent misdemeanor, the law enforcement
  386  officer shall issue a report alleging the child has committed a
  387  delinquent act, at which point a juvenile probation officer
  388  shall process the original delinquent act as a referral to the
  389  department and refer the report to the state attorney for
  390  review.
  391         (6) At the time of issuance of the citation by the law
  392  enforcement officer, such officer shall advise the child that
  393  the child has the option to refuse the citation and to be
  394  referred to the intake office of the department. That option may
  395  be exercised at any time before completion of the work
  396  assignment.
  397         Section 4. Subsection (3) of section 985.125, Florida
  398  Statutes, is amended to read:
  399         985.125 Prearrest or postarrest diversion programs.—
  400         (3) The prearrest or postarrest diversion program may, upon
  401  agreement of the agencies that establish the program, provide
  402  for the expunction of the nonjudicial arrest record of a minor
  403  who successfully completes such a program pursuant to s.
  404  943.0582.
  405         Section 5. Section 985.126, Florida Statutes, is created to
  406  read:
  407         985.126 Diversion programs; data collection; denial of
  408  participation or expunged record.—
  409         (1)As used in this section, the term “diversion program”
  410  has the same meaning as in s. 943.0582.
  411         (2)Each diversion program shall submit:
  412         (a)A certification for expunction to the Department of Law
  413  Enforcement of the juvenile’s nonjudicial arrest record under s.
  414  943.0582 if the juvenile:
  415         1.Successfully completes the diversion program for a
  416  first-time misdemeanor offense; and
  417         2.Has not otherwise been charged by the state attorney
  418  with, or been found to have committed, a criminal offense or
  419  comparable ordinance violation.
  420         (b)Data to the department in a form prescribed by the
  421  department which identifies for each juvenile who participates
  422  in the diversion program:
  423         1.The race, ethnicity, gender, and age of the juvenile;
  424         2.The offense committed, with citation to the specific law
  425  establishing the offense; and
  426         3.The judicial circuit and county in which the offense was
  427  committed and the law enforcement agency that had contact with
  428  the juvenile for the offense.
  429         (3) Each law enforcement agency shall submit to the
  430  department data that identifies for each juvenile who was
  431  eligible for a diversion program, but was instead referred to
  432  the department, provided a notice to appear, or arrested:
  433         (a)The data required under paragraph (2)(b).
  434         (b)Whether the juvenile was offered the opportunity to
  435  participate in the diversion program. If the juvenile was:
  436         1. Not offered such opportunity, the reason such offer was
  437  not made.
  438         2.Offered such opportunity, whether the juvenile or his or
  439  her parent or legal guardian declined to participate in the
  440  diversion program.
  441         (4)The department shall compile the data required under
  442  subsections (2) and (3) and publish it on the department’s
  443  website in a format that is, at a minimum, sortable by judicial
  444  circuit, county, law enforcement agency, race or ethnicity,
  445  gender, age, and offense committed.
  446         (5)A juvenile who successfully completes a diversion
  447  program for a first-time misdemeanor offense may lawfully deny
  448  or fail to acknowledge his or her participation in the program
  449  and an expunction of a nonjudicial arrest record under s.
  450  943.0582, unless the inquiry is made by a criminal justice
  451  agency, as defined in s. 943.045, for a purpose described in s.
  452  943.0582(2)(a)1.
  453         Section 6. This act shall take effect October 1, 2018.