The first thing I should tell you is this: prosecutors hate pretrial intervention.
Why? Because PTI is competition to their diversion program. Basically, diversion is offered by the State Attorney’s Office, and they get the fees for such. They like that cash. And, my clients like that dismissal. So, its a win-win. If you’re asking to enter PTI, that means the prosecutor’s office won’t get paid their fee. It also means the prosecutor’s office won’t get to dictate every single condition of the program. Prosecutors have no control over PTI. Naturally, this bothers them. Some State Attorney offices actually have a standing objection to the program, even though this program is perfectly legal, passed by the legislature and signed by the governor long ago. Legal or not, some prosecutor offices will not, ever, as a matter of policy, agree to permit a defendant to enter PTI. Yes, we have to fight to get you into PTI. But we win these fights, so don’t worry.
The second thing I should tell you is this: judges hate pretrial intervention.
Why? Because PTI requires a bit more work than other programs. State Attorney run diversion programs are ideal for judges, as they allow the case to simply be removed from the docket (abated) once the defendant has entered into the diversion program. The judge never has to see a diversion case again. But pretrial intervention is not run by the State Attorney’s Office, its actually run by the judge. So if the judge accepts a defendant into PTI, that acceptance creates a lot more work for the judge. It means that this judge is going to have an open case for many more months to come, and most judges want to close cases, that’s just how the game is played. Let’s face it, judges don’t want the extra responsibility of having to supervise defendants through the PTI program. That being said, it is the law of the land, so there are lots of judges out there willing to do their job and supervise a defendant through the PTI program, we just have to make sure we have a darn good reason for asking. Don’t worry, I always have a good reason.The Basics: You Didn’t Make it Into Diversion, so Your Only Hope is Pretrial Intervention
Most folks who I get into PTI have a small prior record, and thus, don’t qualify for the State’s diversion program. Sometimes, clients have already had cases dismissed through diversion so the State won’t let them get a second bite at diversion dismissal. When that happens, we’ve found ourselves a perfect candidate for PTI. Not everyone has the opportunity to enter a diversion program run by the state, and some jurisdictions do not have drug court programs. Pretrial intervention is one of the last resorts we have to get a case dismissed when that case does not qualify for other options like diversion or drug court. The beauty of PTI is that under some circumstances, permission from the State Attorney is not required. Here’s how it works.
Section 948.08 of the Florida Statutes controls all PTI issues, and Section 948.08(2) provides that 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 a pretrial intervention program on the approval of the administrator of the program (administrator is usually just the drug treatment facility) and the consent of the victim, the state attorney, and the judge who presided at the initial appearance hearing. Thus, under this section, you may enter the program for just about any crime, whether or not related to drugs (think Driving While License Suspended, etc), but only with the State Attorney’s permission.
So, Section 948.08(2) requires the State’s agreement, but section 948.08(6)(a) allows defendants charged with certain crimes to be placed in a substance abuse education and treatment program, including a drug court program, without the consent of the state attorney.
Yes, many prosecutors are unaware of the fact that pretrial intervention may be granted over their objection. Specifically, it is the language found in 948.08(6)(a) which indicates that PTI may be pursued “upon motion of either party or the court’s own motion.” Several Florida appellate courts have held that “the decision to place defendants in the drug pretrial intervention program does not rest solely with the prosecutor.” King v. Nelson, 746 So.2d 1217 (Fla. 5th DCA 1999). An even better analysis can be found in State v. Gullett, where the court explained that the PTI statute “does not make the state’s consent a prequisite to eligibility and mandates that the trial court determine whether to order further treatment, dismiss the charges or continue prosecution.” 652 So. 2d 1265 (Fla. 4th DCA 1995).
Thus, to enter PTI without an agreement with the State Attorney (and trust me, you’re not getting the State’s approval here), you must be charged with any of the following crimes: purchase or possession of a controlled substance under Chapter 893 (i.e. Cocaine, Heroin, Cannabis, etc!), prostitution, tampering with evidence, solicitation for purchase of a controlled substance, or obtaining a prescription by fraud. Under a strict interpretation of the statute, only a person who has been charged with one of theses listed offenses is eligible for voluntary admission into a pretrial substance abuse education and treatment intervention program, including a drug court program, upon motion of either party or the court’s own motion. At the end of the pretrial intervention period, if the court determines that a defendant has not successfully completed the drug court program, the court may order further treatment or order that the charges revert to the normal channels for prosecution. After successful completion of a treatment-based drug court program, the charges must be dismissed. See § 948.08(6)(c).
The most common objection from the prosecutor on a PTI motion involves misdemeanor cases. That’s because the text of the statute in 948.08(6)(a) is poorly written and states that citizens who are charged with “a felony of the second or third degree for purchase or possession of a controlled substance under chapter 893”. Let’s stop right there. Does this statute pertain only to felony charges of the second or third degree? No. PTI is permissible on a possession of a controlled substance under 893. That includes misdemeanor possession of cannabis under 20 grams.
A savvy prosecutor will claim that the sentence listed above doesn’t apply to misdemeanors, but there’s a second good argument to suggest that it does. The statute also applies to folks charged with “prostitution”. Its written right in 948.08(6)(a). It says prostitution as clear as day. Prostitution is a misdemeanor of the second degree, so how on earth could a prosecutor think that this statute only applies to felony charges when at least one misdemeanor is clearly listed within its text? I’ve heard this argued so many times, I just don’t get it. Maybe some memo went out, and this memo needs to be corrected because I’ve never lost an argument on the misdemeanor application of the PTI statute. I’m just saying.
When it comes time to make some decisions on your criminal case, you need to call me, John Guidry, I’ll sort out the details, you sit back and relax.
