In the State of Florida Pre-trial Diversion (PTD), also commonly referred to as Pre-trial Intervention (PTI), is an alternative prosecution program that is structured by the county division of corrections for misdemeanor crimes, and the Florida State Department of Corrections for felony offenses. Florida Statute 948.08 explicitly provides that PTI may be offered to any first offender, or any person previously convicted of not more than one nonviolent misdemeanor.
However, it is important to note that the PTI mentioned in F.S. 948.08 is not the only alternative prosecution program that may be available in the county of your offense. While these local alternative prosecution programs may be labeled the same as court-ordered PTI it is important to note that admission into such programs are dependent on the approval of the administrator of the program, the specific assistant state attorney and judge assigned to the case, and the consent of the victim of the crime.
The victim of the crime for which an offender is seeking PTI must consent to participate in the alternative prosecution program before the offender may be recommended. However, retail victims such as Walmart, Target, etc. will not be required to consent to an offender’s participation in PTI as there typically is no one person who can agree or disagree with the recommendation. However, smaller retail victims like locally owned stores and restaurants, and in some cases even major rental companies, like Enterprise and Budget will have the personnel available to consent to PTI before the offender is approved.
To participate in PTI as an alternative prosecution program there are rights that offenders must give up knowingly and intelligently including a waiver of the right to a speedy trial at the very least until the program is successfully completed. Alternatively, if the program is not successfully completed in a timely manner the case would then be remanded back to the court docket from which it originated, and prosecution of the offense will continue.
Failure to comply with the terms of PTI can lead to a revocation of access to the program which would be promptly filed with the court and reignite the prosecution of the crime despite how far into the PTI program you may have been able to get prior to the revocation. In rare cases, offenders who have been kicked out of the PTI program may be re-enrolled. However, that once again will require the renewed approval of the administrator of the program, the specific assistant state attorney and judge assigned to the case, and the consent of the victim of the crime.
When it comes to driving under the influence (DUI) offenses there are additional considerations besides the criminal history of the offender that the Assistant State Attorney assigned to the case will consider before referring the case. The first disqualifying fact of a DUI offense that will disqualify an offender from participating in the alternative prosecution program is a crash. A crash –even where no one was injured severely—will disqualify an offender from being eligible for PTI.
An enhanced Breath Alcohol Content (BAC) will also disqualify an offender from being eligible for PTI once it surpasses over twice the legal limit. The legal limit for driving under the influence in the state of Florida is 0.08, and around 0.22 most prosecution offices in Florida will not recommend the offender to PTI due to the aggravated nature of the offense.
Prior criminal history from over 10 years ago may not disqualify an offender from participating in an alternative prosecution program by a local State Attorney’s office if the crimes committed were nonviolent, and not the crime for which the offender is seeking PTI. Additionally, prior juvenile criminal history may not disqualify an offender from participating in an alternative prosecution program if it has been 5 years since the juvenile offense.
Upon successful completion of PTI, or any other alternative prosecution program, the prosecuting agency will notify the court that the program is complete and will ensure the prosecution of the state is dismissed. The administrator of the PTI program will instruct the assigned Assistant State Attorney that the PTI is complete and that the charges should be dismissed immediately. This dismissal of the charges does not erase the arrest record. However, following the dismissal the offender will be able to apply for a sealing or expungement of the arrest record.
If an offender fails to successfully complete a PTI program, or any other alternative prosecution program, the program administrator may order the case return to the court docket for further prosecution. When this occurs, the legal prosecution does not restart but merely resumes from where it was prior to the offender’s entry into the program. Depending on the reason for unsuccessful completion of the alternative prosecution program, or revocation from it, the assistant state attorney assigned to the case may consider allowing the offender to plea with minimal sanctions. In some scenarios, the assistant state attorney may offer a plea offer to a lesser included offense, or even a civil infraction with a fine or a class.
Please call O’Mara Law Group to schedule a free initial consultation if you’re interested in learning more about how pretrial diversion works in Florida.
