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Can I just hit that PAUSE button on my case, please? A Beginner's Guide to Diversion

There's nothing quite like your first time.. and when it comes to criminal matters hopefully it's 1) your LAST time and 2) not so serious that you can't hit the PAUSE button on your criminal prosecution!

child-191971_640Back in the day, when you were a kid, there was just something so fun and memorable about digging yourself a little hole and filling it with dirt. Maybe sand. Maybe even the sensation of the sand around your toes and the feeling you got when you tried to wiggle your feet back out of the hole you buried yourself into. But that was sand or dirt and not the Criminal Process. For Criminal Case matters, it can often times be a whole different ballgame to get yourself out of the hole you now find yourself. Now, it's a heck of a lot easier to get the cops involved than to get them uninvolved. Lucky for you, a lot of State Attorney's Offices have a Deferred Prosecution Program, sometimes it's called PTD (Pre-Trial Diversion), sometimes it's called CDP (County Diversion Program), and some go along with the statute and just call it PTI (Pre-Trial Intervention).

Florida Statute 948.08 makes this all possible.

Any first offender, or any person previously convicted of not more than one nonviolent misdemeanor, who is charged with any misdemeanor or felony of the third degree is eligible for release to the pretrial intervention program. It requires the approval of the following people:
  1. Program Administrator
  2. Victim (If there is one)
  3. State Attorney
  4. Judge (for PTI)
The Defendant will have to give up his or her right to a Speedy Trial (90 days for a Misdemeanor, 175 days for a Felony), since the Program will most likely take longer than Speedy Trial runs. Also, the Defendant (or the Defendant's family) can't contact the Victim to get the Victim to agree. This isn't a "family" thing, no making offers the victim can't refuse. You don't want to run afoul of the whole "witness tampering" thing. Offer Cant Refuse

So, what IS Diversion? How does it work?

pauseDiversion is a deferred prosecution program. Cases are typically on a trial docket or trial path. With diversion, the case is taken off the trial docket, kind of like hitting a giant PAUSE button on the case. While the case is "paused", the Defendant has to complete a program which typically includes "donations" or fees, classes, drug testing, community service, and the understanding that the Defendant isn't to commit any crimes while in Diversion. The Defendant signs a contract with the Prosecutor's Office and in exchange for completing the program successfully, the Prosecutor will drop the case in its entirety.

Additionally, you have to QUALIFY for Diversion.

Diversion is for people who typically have no priors or meet certain qualifications based on the facts and circumstances. For instance, with a DUI case in Orange County, Florida, if you are in an accident, you don't qualify. That's it. Do not Pass GO,Do not collect $200. Same thing is said for cases in Orange County involving Employee Theft. The latest rumor for Osceola County is that they will not defer cases if peop yes-238373_640le facing a DUI were stopped because they had no headlights on during a time that it's required. In Lake County, a Felony may not be referred to PTI if the arresting officer doesn't agree to it. If you are charged with any offense where it is alleged that a sale or delivery of a controlled substance is involved, you won't qualify. There are no back up plans for those who risk making a quick buck with drugs, or even just admit to giving something illegal, or even your own prescription drug, to your friends from time to time (aka dealing). Thus sayeth the mighty statute. If you've already done Diversion for another case, that's it. ONE and DONE. You don't get to take another ride on the Diversion Merry Go Round.

Is there a catch?

Now, some Prosecuting offices (like Brevard County, for instance) will include language in their contracts that allow them to prosecute the case anyway if the Defendant commits a new crime within a year of completing diversion. The concept is based on the fact that the case going to diversion is a one time thing, a blip on the radar of your life, and it won't ever happen again. Ultimately, it's up to the Prosecutor to make that call should something happen. In Seminole County, the Defendant has to sign the contract 10 days before their next court date. Each county has their own rules and ways that they handle Diversion, so read the fine print with your attorney.

What if I mess up while on Diversion?

It depends. Typically, you can expect that if a new crime is committed, then you will be kicked out of the Diversion Program and the Judge will "UNPAUSE" the case and you start right back where you left off. You then have to decide between taking a PLEA or going to TRIAL. unicornIn some very, very, very, very rare circumstances, a person can be referred back to Diversion. But we are talking the Unicorn of situations here. Almost like the catching of the red light in the Dear Kitten series. I've seen it done... once. Additionally, you can always Opt Out of Diversion. Sometimes people can't complete Diversion because they don't have the money to complete it, or the time, or any of the other things. Again, the case is UNPAUSED and you go right back to the Trial Court.

It sounds like a lot of work.

It is. It's actually a lot like Probation. But, if the State has you 'dead to rights' and you care about your future, suck it up, do Diversion. At the end of the day, you are ultimately in control of your success. Done the right way, Diversion can sometimes even be terminated early, which means you can start looking to Expunge that case. You Can Do It

Soooo... do I need an Attorney for this?

Maybe. Maybe not. (Shhhhhhhhh!) arrow-619309_640A lot of times, it is easy enough to go to Arraignment and see if you qualify and you can do that without an attorney. But if you want to make sure you are making the best decision for you when it comes to this option, it makes sense to talk to an attorney first. Some people don't want to do Diversion because they don't feel they did anything wrong. Some people have a set of facts that an experienced attorney can look at and see shouldn't even be a case at all. Don't waste your ONE SHOT at Diversion by taking it with the case that should just be dropped. Think about your Future. At Colbert Law we have persuaded Prosecutors to refer someone to Diversion who was on the border and may not have otherwise been referred. Not each set of facts and a clean history is an automatick ticket into Diversion. You can't refer yourself to Diversion and Defendants aren't typically able to talk to Prosecutors about their cases. You also won't be able to make the Unicorn appear should something happen to kick you out of Diversion. Additionally, some people just don't want to go to court. They don't want to mess up, say or do the wrong thing, or make the wrong decision. Court hearings can happen pretty quickly and while us attorneys are use to the flow, for someone unfamiliar with the process, it can be intimidating. Our belief is that we go to court because that's our job, you go to your job.. because that's your job and you shouldn't have to miss work if you don't have to. An attorney can handle it all for you and your appearance in front of a Judge may not even be necessary at all. Consider an attorney a convenience factor with a side of knowledge that can help you make sense of all of this. WE are HERE for YOU. It's a Win-Win.

If you have a question about your case or if you may qualify for Diversion, contact Colbert Law at (407) 705-3220 or #DUI from your Sprint, T-Mobile or AT&T phone!