Florida Senate - 2018                      CS for CS for SB 1392
       
       
        
       By the Committees on Appropriations; and Criminal Justice; and
       Senators Brandes and Perry
       
       
       
       
       576-03835-18                                          20181392c2
    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 prearrest diversion program in each judicial
   43         circuit, rather than at the local level, with the
   44         concurrence of specified persons; requiring that the
   45         state attorney and public defender of each circuit,
   46         the clerk of the court for each county in the circuit,
   47         and representatives of participating law enforcement
   48         agencies create a civil citation or similar prearrest
   49         diversion program and develop its policies and
   50         procedures; authorizing such entities to solicit
   51         stakeholders for input in developing the program’s
   52         policies and procedures; requiring the Department of
   53         Juvenile Justice to annually develop and provide
   54         guidelines on civil citation or similar prearrest
   55         diversion programs to the judicial circuits; providing
   56         requirements for the civil citation or similar
   57         prearrest diversion program; requiring the state
   58         attorney of each judicial circuit to operate the civil
   59         citation or similar prearrest diversion program;
   60         providing an exception; providing construction;
   61         requiring the arresting law enforcement officer to
   62         make a determination if a juvenile does not
   63         successfully complete the civil citation or similar
   64         prearrest diversion program; deleting provisions
   65         relating to the operation of and requirements for a
   66         civil citation or similar prearrest diversion program;
   67         requiring that a copy of each civil citation or
   68         similar prearrest diversion program notice be provided
   69         to the Department of Juvenile Justice; conforming
   70         provisions to changes made by the act; deleting
   71         provisions relating to requirements for a civil
   72         citation or similar prearrest diversion program;
   73         amending s. 985.125, F.S.; conforming a provision to
   74         changes made by the act; creating s. 985.126, F.S.;
   75         defining the term “diversion program”; requiring a
   76         diversion program to submit to the Department of Law
   77         Enforcement a certification for expunction of the
   78         nonjudicial arrest record of a juvenile under
   79         specified circumstances; requiring a diversion program
   80         to submit to the Department of Juvenile Justice
   81         specified data relating to diversion programs;
   82         requiring each law enforcement agency to submit to the
   83         Department of Juvenile Justice specified data about
   84         juveniles eligible to participate in diversion
   85         programs; requiring the Department of Juvenile Justice
   86         to compile and publish the data in a specified manner;
   87         authorizing a juvenile under certain circumstances to
   88         deny or fail to acknowledge his or her participation
   89         in a diversion program or the expunction of a certain
   90         nonjudicial arrest record unless an exception applies;
   91         providing an effective date.
   92          
   93  Be It Enacted by the Legislature of the State of Florida:
   94  
   95         Section 1. Section 901.40, Florida Statutes, is created to
   96  read:
   97         901.40 Prearrest diversion programs.—
   98         (1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
   99  that the creation and implementation of prearrest diversion
  100  programs at the judicial circuit level promotes public safety,
  101  aids interagency cooperation, and provides the greatest chance
  102  of success for prearrest diversion programs. The Legislature
  103  further finds that the widespread use of prearrest diversion
  104  programs has a positive effect on the criminal justice system
  105  and contributes to an overall reduction in the crime rate and
  106  recidivism in the state. The Legislature encourages but does not
  107  mandate that counties, municipalities, and public or private
  108  educational institutions participate in a prearrest diversion
  109  program created by their judicial circuit under this section.
  110         (2) JUDICIAL CIRCUIT PREARREST DIVERSION PROGRAM
  111  DEVELOPMENT, IMPLEMENTATION, OPERATION.—
  112         (a) In each judicial circuit in the state, the public
  113  defender, the state attorney, the clerk of the court for each
  114  county in the circuit, and representatives of participating law
  115  enforcement agencies in the circuit shall create a prearrest
  116  diversion program and develop its policies and procedures. In
  117  developing the program’s policies and procedures, input from
  118  other interested stakeholders may be solicited.
  119         (b) Each judicial circuit’s prearrest diversion program
  120  must specify:
  121         1. The misdemeanor offenses that qualify an adult for
  122  participation in the program;
  123         2. The eligibility criteria for the program;
  124         3.The program’s implementation and operation;
  125         4. The program’s requirements, including, but not limited
  126  to, the completion of community service hours, payment of
  127  restitution, if applicable, and intervention services indicated
  128  by a needs assessment of the adult, such as urinalysis
  129  monitoring and substance abuse and mental health treatment
  130  services; and
  131         5. A program fee, if any, to be paid by an adult
  132  participating in the program. If the program imposes a fee, the
  133  clerk of the court of the applicable county must receive a
  134  reasonable portion of the fee.
  135         (c) The state attorney of each circuit shall operate a
  136  prearrest diversion program in each circuit. A sheriff, police
  137  department, county, municipality, or public or private
  138  educational institution may continue to operate an independent
  139  prearrest diversion program that is in operation as of October
  140  1, 2018, if the independent program is reviewed by the state
  141  attorney of the applicable circuit and he or she determines that
  142  the independent program is substantially similar to the
  143  prearrest diversion program developed by the circuit. If the
  144  state attorney determines that the independent program is not
  145  substantially similar to the prearrest diversion program
  146  developed by the circuit, the operator of the independent
  147  diversion program may revise the program and the state attorney
  148  may conduct an additional review of the independent program.
  149         (d) A judicial circuit may model an existing sheriff,
  150  police department, county, municipality, or public or private
  151  educational institution’s independent prearrest diversion
  152  program in developing the prearrest diversion program for the
  153  circuit.
  154         (e) If an adult does not successfully complete the
  155  prearrest diversion program, the arresting law enforcement
  156  officer shall determine if there is good cause to arrest the
  157  adult for the original misdemeanor offense and refer the case to
  158  the state attorney to determine if prosecution is appropriate or
  159  allow the adult to continue in the program.
  160         (f) Upon intake of an adult participating in the prearrest
  161  diversion program, the state attorney or the person operating
  162  the independent prearrest diversion program shall electronically
  163  provide the adult’s personal identifying information to the
  164  clerk of the court for the county in which the adult is
  165  participating in the prearrest diversion program. Such
  166  information is not a court record, and the clerk of the court
  167  shall maintain the confidentiality of the adult’s personal
  168  identifying information as provided in subsection (3). The clerk
  169  of the court shall maintain such information as a separate
  170  component of the Comprehensive Case Information System created
  171  and operated pursuant to s. 28.24, which must provide a single
  172  point of access for all such statewide information.
  173         Section 2. Section 943.0582, Florida Statutes, is amended
  174  to read:
  175         943.0582 Prearrest, postarrest, or teen court diversion
  176  program expunction.—
  177         (1) Notwithstanding any law dealing generally with the
  178  preservation and destruction of public records, the department
  179  shall adopt rules to may provide, by rule adopted pursuant to
  180  chapter 120, for the expunction of a any nonjudicial record of
  181  the arrest of a minor who has successfully completed a prearrest
  182  or postarrest diversion program for a misdemeanor offense minors
  183  as authorized by s. 985.125.
  184         (2)(a) As used in this section, the term:
  185         (a)“Diversion program” means a program under s. 985.12, s.
  186  985.125, s. 985.155, or s. 985.16 or a program to which a
  187  referral is made by a state attorney under s. 985.15(1)(g).
  188         (b) “Expunction” has the same meaning ascribed in and has
  189  the same effect as in s. 943.0585, except that:
  190         1. Section The provisions of s. 943.0585(4)(a) does do not
  191  apply, except that the criminal history record of a person whose
  192  record is expunged pursuant to this section shall be made
  193  available only to criminal justice agencies for the purpose of:
  194         a. Determining eligibility for prearrest, postarrest, or
  195  teen court diversion programs;
  196         b.when the record is sought as part of A criminal
  197  investigation; or
  198         c.Making a prosecutorial decision under s. 985.15; or when
  199  the subject of the record is a candidate for employment with a
  200  criminal justice agency. For all other purposes, a person whose
  201  record is expunged under this section may lawfully deny or fail
  202  to acknowledge the arrest and the charge covered by the expunged
  203  record.
  204         2. Records maintained by local criminal justice agencies in
  205  the county in which the arrest occurred that are eligible for
  206  expunction pursuant to this section shall be sealed as the term
  207  is used in s. 943.059.
  208         (b)As used in this section, the term “nonviolent
  209  misdemeanor” includes simple assault or battery when prearrest
  210  or postarrest diversion expunction is approved in writing by the
  211  state attorney for the county in which the arrest occurred.
  212         (3) The department shall expunge the nonjudicial arrest
  213  record of a minor who has successfully completed a prearrest or
  214  postarrest diversion program if the minor has never previously
  215  received an expunction under this section and the diversion
  216  program submits a certification for expunction that minor:
  217         (a)Submits an application for prearrest or postarrest
  218  diversion expunction, on a form prescribed by the department,
  219  signed by the minor’s parent or legal guardian, or by the minor
  220  if he or she has reached the age of majority at the time of
  221  applying.
  222         (b)Submits to the department, with the application, an
  223  official written statement from the state attorney for the
  224  county in which the arrest occurred certifying that he or she
  225  has successfully completed that county’s prearrest or postarrest
  226  diversion program, that his or her participation in the program
  227  was based on an arrest for a nonviolent misdemeanor, and
  228  that he or she has not otherwise been charged by the state
  229  attorney with, or found to have committed, any criminal offense
  230  or comparable ordinance violation.
  231         (c)Participated in a prearrest or postarrest diversion
  232  program that expressly authorizes or permits such expunction.
  233         (d)Participated in a prearrest or postarrest diversion
  234  program based on an arrest for a nonviolent misdemeanor that
  235  would not qualify as an act of domestic violence as that term is
  236  defined in s. 741.28.
  237         (e)Has never been, before filing the application for
  238  expunction, charged by the state attorney with, or found to have
  239  committed, any criminal offense or comparable ordinance
  240  violation.
  241         (4) The department is authorized to charge a $75 processing
  242  fee for each request received for prearrest or postarrest
  243  diversion program expunction, for placement in the Department of
  244  Law Enforcement Operating Trust Fund, unless such fee is waived
  245  by the executive director.
  246         (5) Expunction or sealing granted under this section does
  247  not prevent the minor who receives such relief from petitioning
  248  for the expunction or sealing of a later criminal history record
  249  as provided for in ss. 943.0583, 943.0585, and 943.059, if the
  250  minor is otherwise eligible under those sections.
  251         Section 3. Section 985.12, Florida Statutes, is amended to
  252  read:
  253         985.12 Civil citation or similar prearrest diversion
  254  programs.—
  255         (1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
  256  that the creation and implementation of civil citation or
  257  similar prearrest diversion programs at the judicial circuit
  258  level promotes public safety, aids interagency cooperation, and
  259  provides the greatest chance of success for civil citation and
  260  similar prearrest diversion programs. The Legislature further
  261  finds that the widespread use of civil citation and similar
  262  prearrest diversion programs has a positive effect on the
  263  criminal justice system and contributes to an overall reduction
  264  in the crime rate and recidivism in the state. The Legislature
  265  encourages but does not mandate that counties, municipalities,
  266  and public or private educational institutions participate in a
  267  civil citation or similar prearrest diversion program created by
  268  their judicial circuit under this section. There is established
  269  a juvenile civil citation process for the purpose of providing
  270  an efficient and innovative alternative to custody by the
  271  Department of Juvenile Justice for children who commit
  272  nonserious delinquent acts and to ensure swift and appropriate
  273  consequences. The department shall encourage and assist in the
  274  implementation and improvement of civil citation programs or
  275  other similar diversion programs around the state.
  276         (2) JUDICIAL CIRCUIT CIVIL CITATION OR SIMILAR PREARREST
  277  DIVERSION PROGRAM DEVELOPMENT, IMPLEMENTATION AND OPERATION.—
  278         (a) A The civil citation or similar prearrest diversion
  279  program shall be established in each judicial circuit in the
  280  state. The at the local level with the concurrence of the chief
  281  judge of the circuit, state attorney and, public defender of
  282  each circuit, the clerk of the court for each county in the
  283  circuit, and representatives of participating law enforcement
  284  agencies in the circuit shall create a civil citation or similar
  285  prearrest diversion program and develop its policies and
  286  procedures. In developing the program’s policies and procedures,
  287  input from other interested stakeholders may be solicited. The
  288  department shall annually develop and provide guidelines on best
  289  practice models for civil citation or similar prearrest
  290  diversion programs to the judicial circuits as a resource.
  291         (b) Each judicial circuit’s civil citation or similar
  292  prearrest diversion program must specify:
  293         1. The misdemeanor offenses that qualify a juvenile for
  294  participation in the program;
  295         2. The eligibility criteria for the program;
  296         3. The program’s implementation and operation;
  297         4. The program’s requirements, including, but not limited
  298  to, the completion of community service hours, payment of
  299  restitution, if applicable, and intervention services indicated
  300  by a needs assessment of the juvenile, approved by the
  301  department, such as family counseling, urinalysis monitoring,
  302  and substance abuse and mental health treatment services; and
  303         5. A program fee, if any, to be paid by a juvenile
  304  participating in the program. If the program imposes a fee, the
  305  clerk of the court of the applicable county must receive a
  306  reasonable portion of the fee.
  307         (c) The state attorney of each circuit shall operate a
  308  civil citation or similar prearrest diversion program in each
  309  circuit. A sheriff, police department, county, municipality, or
  310  public or private educational institution may continue to
  311  operate an independent civil citation or similar prearrest
  312  diversion program that is in operation as of October 1, 2018, if
  313  the independent program is reviewed by the state attorney of the
  314  applicable circuit and he or she determines that the independent
  315  program is substantially similar to the civil citation or
  316  similar prearrest diversion program developed by the circuit. If
  317  the state attorney determines that the independent program is
  318  not substantially similar to the civil citation or similar
  319  prearrest diversion program developed by the circuit, the
  320  operator of the independent diversion program may revise the
  321  program and the state attorney may conduct an additional review
  322  of the independent program.
  323         (d)A judicial circuit may model an existing sheriff,
  324  police department, county, municipality, or public or private
  325  educational institution’s independent civil citation or similar
  326  prearrest diversion program in developing the civil citation or
  327  similar prearrest diversion program for the circuit.
  328         (e) If a juvenile does not successfully complete the civil
  329  citation or similar prearrest diversion program, the arresting
  330  law enforcement officer shall determine if there is good cause
  331  to arrest the juvenile for the original misdemeanor offense and
  332  refer the case to the state attorney to determine if prosecution
  333  is appropriate or allow the juvenile to continue in the program
  334  and the head of each local law enforcement agency involved. The
  335  program may be operated by an entity such as a law enforcement
  336  agency, the department, a juvenile assessment center, the county
  337  or municipality, or another entity selected by the county or
  338  municipality. An entity operating the civil citation or similar
  339  diversion program must do so in consultation and agreement with
  340  the state attorney and local law enforcement agencies. Under
  341  such a juvenile civil citation or similar diversion program, a
  342  law enforcement officer, upon making contact with a juvenile who
  343  admits having committed a misdemeanor, may choose to issue a
  344  simple warning or inform the child’s guardian or parent of the
  345  child’s infraction, or may issue a civil citation or require
  346  participation in a similar diversion program, and assess up to
  347  50 community service hours, and require participation in
  348  intervention services as indicated by an assessment of the needs
  349  of the juvenile, including family counseling, urinalysis
  350  monitoring, and substance abuse and mental health treatment
  351  services.
  352         (f) A copy of each civil citation or similar prearrest
  353  diversion program notice issued under this section shall be
  354  provided to the department, and the department shall enter
  355  appropriate information into the juvenile offender information
  356  system. Use of the civil citation or similar diversion program
  357  is not limited to first-time misdemeanors and may be used in up
  358  to two subsequent misdemeanors. If an arrest is made, a law
  359  enforcement officer must provide written documentation as to why
  360  an arrest was warranted.
  361         (g) At the conclusion of a juvenile’s civil citation
  362  program or similar prearrest diversion program, the state
  363  attorney or operator of the independent program agency operating
  364  the program shall report the outcome to the department. The
  365  issuance of a civil citation or similar prearrest diversion
  366  program notice is not considered a referral to the department.
  367         (2) The department shall develop guidelines for the civil
  368  citation program which include intervention services that are
  369  based upon proven civil citation or similar diversion programs
  370  within the state.
  371         (h)(3) Upon issuing such a civil citation or similar
  372  prearrest diversion program notice, the law enforcement officer
  373  shall send a copy of to the civil citation or similar prearrest
  374  diversion program notice to county sheriff, state attorney, the
  375  appropriate intake office of the department, or the community
  376  service performance monitor designated by the department, the
  377  parent or guardian of the child, and to the victim.
  378         (4) The child shall report to the community service
  379  performance monitor within 7 working days after the date of
  380  issuance of the citation. The work assignment shall be
  381  accomplished at a rate of not less than 5 hours per week. The
  382  monitor shall advise the intake office immediately upon
  383  reporting by the child to the monitor, that the child has in
  384  fact reported and the expected date upon which completion of the
  385  work assignment will be accomplished.
  386         (5) If the child fails to report timely for a work
  387  assignment, complete a work assignment, or comply with assigned
  388  intervention services within the prescribed time, or if the
  389  juvenile commits a subsequent misdemeanor, the law enforcement
  390  officer shall issue a report alleging the child has committed a
  391  delinquent act, at which point a juvenile probation officer
  392  shall process the original delinquent act as a referral to the
  393  department and refer the report to the state attorney for
  394  review.
  395         (6) At the time of issuance of the citation by the law
  396  enforcement officer, such officer shall advise the child that
  397  the child has the option to refuse the citation and to be
  398  referred to the intake office of the department. That option may
  399  be exercised at any time before completion of the work
  400  assignment.
  401         Section 4. Subsection (3) of section 985.125, Florida
  402  Statutes, is amended to read:
  403         985.125 Prearrest or postarrest diversion programs.—
  404         (3) The prearrest or postarrest diversion program may, upon
  405  agreement of the agencies that establish the program, provide
  406  for the expunction of the nonjudicial arrest record of a minor
  407  who successfully completes such a program pursuant to s.
  408  943.0582.
  409         Section 5. Section 985.126, Florida Statutes, is created to
  410  read:
  411         985.126 Diversion programs; data collection; denial of
  412  participation or expunged record.—
  413         (1)As used in this section, the term “diversion program”
  414  has the same meaning as in s. 943.0582.
  415         (2)Each diversion program shall submit:
  416         (a)A certification for expunction to the Department of Law
  417  Enforcement of the juvenile’s nonjudicial arrest record under s.
  418  943.0582 if the juvenile:
  419         1.Successfully completes the diversion program for a
  420  first-time misdemeanor offense; and
  421         2.Has not otherwise been charged by the state attorney
  422  with, or been found to have committed, a criminal offense or
  423  comparable ordinance violation.
  424         (b)Data to the department in a form prescribed by the
  425  department which identifies for each juvenile who participates
  426  in the diversion program:
  427         1.The race, ethnicity, gender, and age of the juvenile;
  428         2.The offense committed, with citation to the specific law
  429  establishing the offense; and
  430         3.The judicial circuit and county in which the offense was
  431  committed and the law enforcement agency that had contact with
  432  the juvenile for the offense.
  433         (3) Each law enforcement agency shall submit to the
  434  department data that identifies for each juvenile who was
  435  eligible for a diversion program, but was instead referred to
  436  the department, provided a notice to appear, or arrested:
  437         (a)The data required under paragraph (2)(b).
  438         (b)Whether the juvenile was offered the opportunity to
  439  participate in the diversion program. If the juvenile was:
  440         1. Not offered such opportunity, the reason such offer was
  441  not made.
  442         2.Offered such opportunity, whether the juvenile or his or
  443  her parent or legal guardian declined to participate in the
  444  diversion program.
  445         (4)The department shall compile the data required under
  446  subsections (2) and (3) and publish it on the department’s
  447  website in a format that is, at a minimum, sortable by judicial
  448  circuit, county, law enforcement agency, race or ethnicity,
  449  gender, age, and offense committed.
  450         (5)A juvenile who successfully completes a diversion
  451  program for a first-time misdemeanor offense may lawfully deny
  452  or fail to acknowledge his or her participation in the program
  453  and an expunction of a nonjudicial arrest record under s.
  454  943.0582, unless the inquiry is made by a criminal justice
  455  agency, as defined in s. 943.045, for a purpose described in s.
  456  943.0582(2)(b)1.
  457         Section 6. This act shall take effect October 1, 2018.