Saturday, October 5, 2013

Comment: Florida's Prison Diversion Statute, Section 921.00241

Hon. William H. Burgess, III, B.C.S.

Notwithstanding section 921.0024, Fla. Stat., and effective for offenses committed after July 1, 2009, a court may divert from the state correctional system a defendant who would otherwise be sentenced to a state facility by sentencing the defendant to a nonstate prison sanction as provided in section 921.00241(2).1 A defendant may be sentenced to a nonstate prison sanction if the offender meets all of the following criteria:

(a) The defendant's primary offense is a felony of the third degree;2
(b) The defendant's total sentence points score, as provided in section 921.0024, is not more than 48 points, or the defendant's total sentence points score is 54 points and six of those points are for a violation of probation, community control, or other community supervision, and do not involve a new violation of law;3
(c) The defendant has not been convicted or previously convicted of a forcible felony defined in section 776.08, but excluding any third-degree felony violation under chapter 810;4 and
(d) The defendant's primary offense does not require a minimum mandatory sentence.5
If the court elects to impose a sentence as provided in section 921.00241, the court must sentence the defendant to a term of probation, community control, or community supervision with mandatory participation in a prison diversion program of the Department of Corrections if such a program is funded and exists in the judicial circuit in which the defendant is sentenced. The prison diversion program must be designed to meet the unique needs of each judicial circuit and of the offender population of the circuit. The program may require residential, nonresidential, or day reporting requirements; substance abuse treatment; employment; restitution; academic or vocational opportunities; or community service work.6
The court that sentences a defendant to a nonstate prison sanction pursuant to section 921.00241(2) must make written findings that the defendant meets the criteria in section 921.00241(1), and the sentencing order must indicate that the defendant was sentenced to the prison diversion program pursuant to section 921.00241(2). The court may order the offender to pay all or a portion of the costs related to the prison diversion program if the court determines that the defendant has the ability to pay.7
The wording of section 921.00241(1)(b) has been a source of confusion for some prosecutors and judges, as regards whether the last words in that subsection, "and do not involve a new violation of law," apply to the entire subsection --- thereby limiting application of the law to violations of supervision and precluding prison diversion from all cases involving a new law violation --- or whether their application is limited to that portion of the subsection appearing after the first "or" pertaining to the situation in which the defendant has a total sentence points score of 54 points and six of those points are for a violation of probation, community control, or other community supervision.
In response to such confusion, it should be pointed out that the Florida Legislature placed the statute in Chapter 921, pertaining to sentencing in general, and not in Chapter 948, pertaining to probation and community control. All three of the legislative staff analyses of C.S.S.B. No. 1722, which was signed into law by the Governor on May 27, 2009 as Chapter 2009-63, Laws of Florida, describe eligibility for the prison diversion program as requiring either a total sentence points score of 48 points or a total sentence points score of 54 points of which six are for a violation of supervision that does not involve a new law violation.8 The statute is thus of general application in sentencing cases and is not limited to violations of probation that do not involve new law violations.
1 Sec. 921.00241(1), Fla. Stat.
2 Sec. 921.00241(1)(a), Fla. Stat.
3 Sec. 921.00241(1)(b), Fla. Stat.
4 Sec. 921.00241(1)(c), Fla. Stat.
5 Sec. 921.00241(1)(d), Fla. Stat.
6 Sec. 921.00241(2), Fla. Stat.
7 Sec. 921.00241(3), Fla. Stat.

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