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Pinellas Adult Pre-Arrest Diversion (APAD) Program – The Good, The Bad, and the Unknown:

Melinda Morris
By: Melinda Morris
Nov. 15 2016

Pinellas Adult Pre-Arrest Diversion (APAD) Program

 

What is the Adult Pre-Arrest Diversion (APAD) Program?

The Adult Pre-Arrest Diversion (APAD) Program was conceived by the Pinellas County Sheriff’s Office (PCSO) and Sheriff Bob Gualtieri as an alternative to arresting individuals for certain lower level crimes.  Community Service, Education, and Restitution are the alternative sanctions to incarceration (jail time).

The goals of the Program are to allow individuals to avoid a criminal arrest and the collateral consequences that often come along with a criminal arrest including adversely affecting employment, future job prospects, entry to the military and other social stigma.  The program also hopes to reduce the pressure on the local jail system and the Pinellas County Criminal Court system.

 

What Offenses are Eligible for the Adult Pre-Arrest Diversion (APAD) Program?

The following offenses MAY qualify for the Adult Pre-Arrest Diversion (APAD) Program:

  • Possession of 10 grams or less of marijuana, or up to 20 grams of marijuana if it is clearly established that the marijuana is solely intended for personal use and it does not appear ready for sale.
  • Possession of marijuana paraphernalia.
  • Possession of alcohol under 21 years of age.
  • Petit Theft of $300 or less.
  • Retail Theft of $300 or less.
  • Misdemeanor Criminal Mischief (vandalism under $1000).
  • Misdemeanor Assault (other than domestic related).
  • Misdemeanor Battery with no or very minor injuries to the victim, other than domestic related.
  • Disorderly Conduct / Disorderly Intoxication
  • Trespass
  • Littering

Note: Multiple offenses from one incident may be referred at the same time and will be considered one APAD referral.

 

What are the Sanctions under the Adult Pre-Arrest Diversion (APAD) Program?

  • Community Service:
    • 1st Time: 24 hrs within 30 days
    • 2nd Time: 32 hrs within 60 days
    • 3rd Time: 48 hrs within 90 days
  • Education, if applicable:
    • Shoplifter Awareness
    • Anger Management
    • Substance Abuse  
  • Restitution (if applicable)

Note: All Pinellas County Sheriff’s Office programs will be provided at no cost to the participant; however, programs provided by outside entities will be at the participant’s’ expense, if any. Completion times may be extended based upon reasonable need.

 

Who is Eligible To Participate in the Adult Pre-Arrest Diversion (APAD) Program?

To be eligible for APAD the person must:

  • Admit the offense and accept responsibility for his/her actions.  
  • Agree to make restitution to the victim, if applicable.  
  • Not present a risk to the safety of others.  
  • Not have a prior misdemeanor conviction within the preceding two (2) years.  
  • Not have a prior felony conviction within the preceding five (5) years
  • Not have participated in APAD within the previous three (3) months or more than two (2) times in his/her lifetime (a person may participate a maximum of three (3) times in APAD).  
  • Participation in juvenile diversion does not affect eligibility to participate in APAD or count toward participation levels.  
  • Have sufficient ties to the community (i.e. local employment/address) to ensure they will successfully complete the program.

 

How Does Adult Pre-Arrest Diversion (APAD) Program Actually Work?

The Pinellas County Sheriff’s Office states that, “if the criteria is met the officer shall make the APAD referral and shall not make an arrest or issue an NTA without an objective and articulated reason. The reason for non-referral shall be documented in the arrest report and on the arrest affidavit.”

An individual is typically placed into APAD by the law enforcement officer at the scene. There are also APAD staff members placed at the Pinellas County Jail to intercept individuals arrested for eligible APAD offenses.

Law enforcement will annotate an APAD referral in the VIPAR system (see more on VIPAR below).  This will then automatically send an e-mail to APAD staff.

The individual must then report to the APAD office (at the 49th Street Pinellas County Sheriff’s Office location in Clearwater) within 48 hours.  An initial screening will be completed by APAD staff to ensure eligibility.  APAD staff will then place the individual within an appropriate program and issue sanctions (community service).

If the individual does not report within 48 hours, the arresting deputy/officer will be notified of non-compliance.  If there is noncompliance an arrest or referral to the State Attorney must occur within seven (7) days of the incident.

Note: A NTA is a Notice To Appear.  Under the law, for certain lower level offenses, law enforcement officers have traditionally had the discretion to make an actual arrest or to issue a Notice To Appear which looks much like a “ticket” but in fact is a “paper arrest” that simply avoids the process of booking an individual into jail.

 

What Happens When the Adult Pre-Arrest Diversion (APAD) Program is Successfully Completed?

The Pinellas County Sheriff’s Office provides the individual with a Letter of Completion and no further action is taken.  Since there is no arrest, and no formal criminal charge under the Adult Pre-Arrest Diversion (APAD) Program, there is no further action required.

 

What Happens If an Individual Violates the Terms of the Adult Pre-Arrest Diversion (APAD) Program?

Non-compliance with Program requirements will result in permanent ineligibility for future diversion under APAD.  If an individual fails to report for APAD within the required timeframe of the offense date, the arresting deputy/officer will be notified and may refer charges to the Pinellas State Attorney’s Office for prosecution.  A Pinellas County Sheriff’s Office APAD specialist will update VIPAR, and the file is closed documenting the disposition.

 

The Good:

There are many aspects of the Adult Pre-Arrest Diversion (APAD) Program to praise.  Progressive programs such as APAD that help individuals avoid incarceration for lower level criminal offenses are a welcome addition to our community.  APAD should help reduce pressure on the criminal court system and allow all stakeholders (law enforcement, the State Attorney’s Office, Clerk and Court system) to provide even more attention to those individuals who have more serious criminal cases and require the greatest degrees of care and consideration.


It should be noted that there are criminal defense attorneys who have criticized the very existence of the Adult Pre-Arrest Diversion (APAD) Program because it is bad for business – fewer individuals arrested, less paying clients the thinking goes.  The Morris Law Firm, as a criminal defense law firm, would be hypocritical to not support a program such as APAD while at the same time vigorously working to help clients avoid incarceration and criminal charges.  While we support the goals of the APAD program, we do believe that there are inherent legal and ethical issues with the Program itself.

 

The Bad:

Understanding that the Morris Law Firm supports the concept of the APAD program, there are some serious issues with its very existence.

  • Constitutionality / Legality of the  Adult Pre-Arrest Diversion (APAD) Program:
    • The Adult Pre-Arrest Diversion (APAD) Program was created under a Memorandum Of Understanding (MOU) between the Pinellas County Sheriff’s Office, Pinellas County police chiefs, the State Attorney, the Public Defender, the Chief Judge and the Clerk of Court.  A Memorandum of Understanding is not a law, and was not passed by the Florida Legislature.  Thus, there is no law or legal basis to support the existence of the APAD program in Pinellas County.  The APAD program could be modified, eliminated, or suspended at any time without any oversight from the Florida Legislature.  It is possible that the very existence of the APAD program is not supported by Florida law and may be unconstitutional under Florida law.
    • Law enforcement is potentially violating constitutional separation of powers doctrine.  Law enforcement via the APAD program has bypassed the Legislature’s job of making law, and the Judicial Branch’s job of applying the law.
    • Law enforcement is unilaterally determining that they will no longer enforce some of the laws of the State of Florida.  Whereas our State Statutes (laws) say that an individual will be arrested when there is probable cause that there has been a violation of law, Pinellas County officials have determined not to make an arrest with no law to support this course of action.
  • Admission of Guilt:
    • As stated above, to participate in the APAD program, the individual must make an admission as to the offense and take responsibility without the ability to consult legal counsel.
    • While the Pinellas County Sheriff’s Office states that this information is not recorded in their arrest database or in the Pinellas County Clerk of the Court’s system, it is recorded within VIPAR (see below).
    • This information and the admission may be accessible to anyone making a public records request.
    • It is unknown whether or not this admission may be used in a future prosecution if the individual fails to meet the requirements of the APAD program.
    • An admission may also be utilized in a civil case against the individual.
  • Selective Enforcement of the Adult Pre-Arrest Diversion (APAD) Program:
    • The Pinellas County Sheriff’s Office states,”If the criteria is met the officer shall make the APAD referral and shall not make an arrest or issue an NTA without an objective and articulated reason.”
    • This still leaves room for selective enforcement and unequal application.  How?  Imagine an individual who is stopped for possession of marijuana, an eligible offense under APAD.  Now imagine that the law enforcement officer is determined to make an arrest.  The officer simply needs to add a non-qualifying offense such as “Resisting An Officer Without Violence” and the person now gets arrested and goes to jail.  One can easily imagine situations where law enforcement may be motivated to “stack” charges to result in an actual arrest rather than just simply referral to the APAD Program.
    • It is unclear what objective criteria an officer will utilize to “clearly establish[ed]” when a possession of marijuana “is solely intended for personal use and it does not appear ready for sale.”
    • Only certain misdemeanor offenses are eligible for APAD.
  • Victim’s Rights:
    • While the APAD program is certainly a benefit to the individual who committed the offense, it bypasses victim’s rights and may come under attack for this very reason.
    • Several of the eligible offenses under APAD may have a victim including Theft, Assault, and Battery.
    • It appears from the guidelines of the APAD program that the officer has no discretion in making an APAD referral, thus the victim has no input as to whether or not the individual committing the offense is formally charged.
    • This element of the APAD Program will almost certainly come under attack and may put the Program at risk and challenge APAD referrals where there is a victim.
  • Existence of Records Under the  Adult Pre-Arrest Diversion (APAD) Program:
    • Florida law governs how records of criminal arrests and criminal court records are maintained.  Florida law also governs how an individual may seal or expunge such records from the system.
    • The APAD Program does not comport to any of the Florida laws governing management of criminal records.
    • The Pinellas County Sheriff’s Office states that, “There will be no arrest and no record of an arrest.”  
      • While it is true that there is no arrest or record of an arrest, there is a record of the individual being referred to the Adult Pre-Arrest Diversion (APAD) Program, and one would also imagine the crime for which the referral is being made.  
      • The record of the APAD referral is made in the Pinellas County Sheriff’s VIPAR system according to the Pinellas County Sheriff’s Office.
      • VIPAR (Virtual Inmate Processing And Reporting system) was created by the Pinellas County Sheriff’s Office Information Systems and Analysis Department.  VIPAR is an electronic arrest affidavit technology that eliminated the antiquated multi-page, hand written arrest form.  An arrested subject’s computerized arrest affidavit is completed in the field in VIPAR and sent electronically to the jail and is there when the prisoner arrives.  
      • It appears from APAD documentation that the Pinellas County Sheriff’s Office is piggybacking documentation of APAD referrals into the very system utilized to record actual criminal arrest affidavits.
      • Under Florida Sunshine Law that guarantees that the public has access to the public records of government, it is conceivable (even probable) that one could make a public records request that may contain APAD referral information including the name, nature of the crime, and referral information.
      • Because the APAD records are not true criminal records governed under Florida Law for sealing or expunging such records, an individual may not be able to control the existence or dissemination of such records.
  • Documentation of the APAD Program
    • To the best of our knowledge there is no official documentation of the APAD program available to the public, or to private criminal defense attorneys.
    • The APAD Program was agreed to between Pinellas County law enforcement agencies, the State Attorney’s Office, the Pinellas County Clerk of the Court, and the Pinellas Judicial system.  In this sense, it operates as a “black box” to those individuals accused of an APAD violation, and to criminal defense attorneys in the community who are specifically tasked with defending the rights of those accused.
    • With no official documentation, no rules or regulations, and no law to support the APAD Program, law enforcement officials are free to change the rules of the game at any time.
  • The APAD Program May Be Politically Driven
    • While reducing pressure on the Pinellas County jail system and Criminal Court System are worthwhile endeavors, the APAD program may be seen as a political tool – because APAD referrals are not recorded officially, crime statistics will go down for Pinellas County
    • Lower crime statistics look good for the elected Pinellas County Sheriff and for the elected State Attorney, however actual incidents of crime may remain the same or even increase
  • More crime?
    • Because the APAD Program essentially decriminalizes certain offenses, potential offenders may increase their engagement in otherwise illegal behavior with the knowledge that the the punishment will be non-criminal and minimal.

 

The Unknown:

  • If the Adult Pre-Arrest Diversion (APAD) Program is found to be unconstitutional, what happens to the arrests that otherwise should have been executed?
  • How are Adult Pre-Arrest Diversion (APAD) Program records in the Pinellas County Sheriff’s Office VIPAR system maintained, and can they be disclosed under a public records request?
  • What happens when there is a victim who wants to see an individual formally criminally prosecuted?

 

Is There Any Reason To Reject a Referral to the Adult Pre-Arrest Diversion (APAD) Program?

  • There may be valid reasons to reject a referral to the Adult Pre-Arrest Diversion (APAD) Program:
    • You were not responsible for the crime you have been accused of.
    • You are concerned there are issues related to the legality of the law enforcement officer’s investigation or stop.
    • You do not want to make an admission of guilt.
    • You are concerned regarding the records of the APAD referral and ability for someone to request those records under the Florida Sunshine Laws without any ability to later seal or expunge those records.

 

Do You Need An Attorney for the Adult Pre-Arrest Diversion (APAD) Program?

 

  • Based on all of the potential issues and pitfalls related to the Adult Pre-Arrest Diversion (APAD) Program, you may want to consult with a Pinellas County criminal defense attorney to be advised of your rights and to ensure that an APAD referral is in your best legal interests.  The Morris Law Firm provides a reasonable flat fee consultation to ensure you understand the APAD program and understand your rights before accepting the referral to the program.  There may be other ways to resolve your issue outside of APAD depending on the circumstances.  Call the Morris Law Firm at 727-388-4736, Option 1 for New Clients to speak with an attorney about your APAD referral.

 

  • While the Pinellas County Sheriff’s Office asserts that the APAD program falls outside of the criminal justice system and there are no resulting records of the incident, this seems not to be entirely true.
  • The Program requires that an individual make an admission of guilt.  Whether or not this may be used against the individual is unclear and is certainly not governed under Florida Law.
  • The Adult Pre-Arrest Diversion (APAD) Program may not in fact be in the best interests of citizens of Pinellas County because it bypasses constitutionally guaranteed advisements of one’s rights under the law.

Source: The information above was compiled from a slide show presented to the St. Petersburg Police Department by the Pinellas County Sheriff’s Office.

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