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 to may provide, by rule adopted pursuant to
  172  chapter 120, for the expunction of a any nonjudicial record of
  173  the arrest of a minor who has successfully completed a prearrest
  174  or postarrest diversion program for a misdemeanor offense minors
  175  as 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. Section The provisions of s. 943.0585(4)(a) does do not
  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 for prearrest, postarrest, or
  187  teen court diversion programs;
  188         b.when the record is sought as part of A criminal
  189  investigation; or
  190         c.Making a prosecutorial decision under s. 985.15; or when
  191  the subject of the record is a candidate for employment with a
  192  criminal justice agency. For all other purposes, a person whose
  193  record is expunged under this section may lawfully deny or fail
  194  to acknowledge the arrest and the charge covered by the expunged
  195  record.
  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 “nonviolent
  201  misdemeanor” includes simple assault or battery when prearrest
  202  or postarrest diversion expunction is approved in writing by the
  203  state attorney for the county in which the arrest occurred.
  204         (3) The department shall expunge the nonjudicial arrest
  205  record of a minor who has successfully completed a prearrest or
  206  postarrest diversion program if the minor has never previously
  207  received an expunction under this section and the diversion
  208  program submits a certification for expunction that minor:
  209         (a)Submits an application for prearrest or postarrest
  210  diversion expunction, on a form prescribed by the department,
  211  signed by the minor’s parent or legal guardian, or by the minor
  212  if he or she has reached the age of majority at the time of
  213  applying.
  214         (b)Submits to the department, with the application, an
  215  official written statement from the state attorney for the
  216  county in which the arrest occurred certifying that he or she
  217  has successfully completed that county’s prearrest or postarrest
  218  diversion program, that his or her participation in the program
  219  was based on an arrest for a nonviolent misdemeanor, and
  220  that he or she has not otherwise been charged by the state
  221  attorney with, or found to have committed, any criminal offense
  222  or comparable ordinance violation.
  223         (c)Participated in a prearrest or postarrest diversion
  224  program that expressly authorizes or permits such expunction.
  225         (d)Participated in a prearrest or postarrest diversion
  226  program based on an arrest for a nonviolent misdemeanor that
  227  would not qualify as an act of domestic violence as that term is
  228  defined in s. 741.28.
  229         (e)Has never been, before filing the application for
  230  expunction, charged by the state attorney with, or found to have
  231  committed, any criminal offense or comparable ordinance
  232  violation.
  233         (4) The department is authorized to charge a $75 processing
  234  fee for each request received for prearrest or postarrest
  235  diversion program expunction, for placement in the Department of
  236  Law Enforcement Operating Trust Fund, unless such fee is waived
  237  by 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 civil
  260  citation process for the purpose of providing an efficient and
  261  innovative alternative to custody by the Department of Juvenile
  262  Justice for children who commit nonserious delinquent acts and
  263  to ensure swift and appropriate consequences. The department
  264  shall encourage and assist in the implementation and improvement
  265  of civil citation programs or other similar diversion programs
  266  around the state.
  267         (2) JUDICIAL CIRCUIT CIVIL CITATION OR SIMILAR DIVERSION
  268  PROGRAM DEVELOPMENT, IMPLEMENTATION AND OPERATION.—
  269         (a) A The civil citation or similar diversion program shall
  270  be established in each judicial circuit in the state. The at the
  271  local level with the concurrence of the chief judge of the
  272  circuit, 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
  322  and the head of each local law enforcement agency involved. The
  323  program may be operated by an entity such as a law enforcement
  324  agency, the department, a juvenile assessment center, the county
  325  or municipality, or another entity selected by the county or
  326  municipality. An entity operating the civil citation or similar
  327  diversion program must do so in consultation and agreement with
  328  the state attorney and local law enforcement agencies. Under
  329  such a juvenile civil citation or similar diversion program, a
  330  law enforcement officer, upon making contact with a juvenile who
  331  admits having committed a misdemeanor, may choose to issue a
  332  simple warning or inform the child’s guardian or parent of the
  333  child’s infraction, or may issue a civil citation or require
  334  participation in a similar diversion program, and assess up to
  335  50 community service hours, and require participation in
  336  intervention services as indicated by an assessment of the needs
  337  of the juvenile, including family counseling, urinalysis
  338  monitoring, and substance abuse and mental health treatment
  339  services.
  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. Use
  344  of the civil citation or similar diversion program is not
  345  limited to first-time misdemeanors and may be used in up to two
  346  subsequent misdemeanors. If an arrest is made, a law enforcement
  347  officer must provide written documentation as to why an arrest
  348  was warranted.
  349         (g) At the conclusion of a juvenile’s civil citation
  350  program or similar diversion program, the state attorney agency
  351  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 civil
  356  citation program which include intervention services that are
  357  based upon proven civil citation or similar diversion programs
  358  within the state.
  359         (h)(3) Upon issuing such a civil citation or similar
  360  diversion program notice, the law enforcement officer shall send
  361  a copy of to the civil citation or similar diversion program
  362  notice to county sheriff, state attorney, the appropriate intake
  363  office of the department, or the community service performance
  364  monitor 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 service
  367  performance monitor within 7 working days after the date of
  368  issuance of the citation. The work assignment shall be
  369  accomplished at a rate of not less than 5 hours per week. The
  370  monitor shall advise the intake office immediately upon
  371  reporting by the child to the monitor, that the child has in
  372  fact reported and the expected date upon which completion of the
  373  work assignment will be accomplished.
  374         (5) If the child fails to report timely for a work
  375  assignment, complete a work assignment, or comply with assigned
  376  intervention services within the prescribed time, or if the
  377  juvenile commits a subsequent misdemeanor, the law enforcement
  378  officer shall issue a report alleging the child has committed a
  379  delinquent act, at which point a juvenile probation officer
  380  shall process the original delinquent act as a referral to the
  381  department and refer the report to the state attorney for
  382  review.
  383         (6) At the time of issuance of the citation by the law
  384  enforcement officer, such officer shall advise the child that
  385  the child has the option to refuse the citation and to be
  386  referred to the intake office of the department. That option may
  387  be exercised at any time before completion of the work
  388  assignment.
  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, upon
  393  agreement of the agencies that establish the program, provide
  394  for the expunction of the nonjudicial arrest record of a minor
  395  who successfully completes such a program pursuant to s.
  396  943.0582.
  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.