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Update #2: Pinellas County Sheriff’s Office Adult Pre-Arrest Diversion Program (APAD) – Real Life Issues

Melinda Morris
By: Melinda Morris
Jul. 18 2017

We have written several times on the Pinellas County Sheriff’s Office Adult Pre-Arrest Diversion Program (APAD) – read the original blog here: Pinellas Adult Pre-Arrest Diversion (APAD) Program – The Good, The Bad, and the Unknown .

We have taken issue with the program’s selective enforcement, constitutionality, records keeping, and the issue of the requirement to admit guilt to be accepted into the APAD program.  It would appear that based on one recent example that we became aware of, the APAD program has significant issues.  As we stated before, what appears good on paper often doesn’t work out the same way in real life.

Just last week, we were witness in open Court to the real life issues that the Pinellas County APAD program has.  In the case we observed, a young female defendant was present at a Pre-Trial Conference at the Pinellas County Criminal Justice Center.  She had just been formally charged with a felony battery.  Her attorney argued that she was previously arrested for the very same incident of battery and was already charged with a misdemeanor battery which was eligible for participation in the Adult Pre-Arrest Diversion Program.  The young woman accepted APAD and was told per the program guidelines that there would be no formal arrest (no booking, fingerprinting, or photographs) and no formal charges so long as she fulfilled the program requirements (which are typically community service).  The young woman complied.  So why was she back in Court being charged with a felony battery based on the same incident?

Apparently, although she had complied with the Adult Pre-Arrest Diversion Program per the Pinellas County Sheriff’s Office, the Pinellas County State Attorney was contacted by the victim of the battery, performed their own independent investigation, and determined to directly file a formal felony battery charge.  The woman’s attorney argued that the new felony battery charge would be double jeopardy – or the prosecution of a person twice for the same offense – which is not allowed.  Over that objection the State Attorney informed the Court that the issue of double jeopardy had been researched and that the elected State Attorney himself had approved the new felony battery charge.  The Judge agreed that the charge would stand.  Now, this young woman faces a felony battery charge after she has already complied with the Adult Pre-Arrest Diversion Program and believed that she was free and clear of the incident.

How can this happen?  First, as we previously wrote, the Adult Pre-Arrest Diversion Program is an administrative program “agreed” to by law enforcement stakeholders in Pinellas County including the Pinellas County Sheriff’s Office, local law enforcement agencies, the Pinellas County State Attorney, and the Pinellas County judiciary.  That said, it is not law.  The legislature did not pass any law supporting the implementation of the program – it is based purely on a Memorandum of Understanding between the stakeholders, which is frankly worth about as much as the paper it is written on and clearly does not prevent any one of the stakeholders from acting in their own interests contrary to the Memorandum.  Double jeopardy does not apply.  Why?  Even though the young woman followed the rules of the Adult Pre-Arrest Diversion Program, it is an administrative program – not law, and she was never charged in the instance of her first “arrest” for misdemeanor battery, thus the new felony battery charge for the very same instance of battery that she complied with the Adult Pre-Arrest Diversion Program does not count towards double jeopardy because she was never charged the first time.

Why would the State Attorney’s Office do this?  Remember that the State Attorney’s Office is led by an elected official.  Elected officials want to be elected again and want to do what is in the best interests of their constituencies.  Additionally, the State Attorney’s Office takes great heed (and rightfully so in most cases) of the wishes of the victim.  Here, clearly, the alleged victim was not satisfied that the young woman would not have a formal arrest record and would be free and clear of the charges by just doing some community service via the Adult Pre-Arrest Diversion Program.  Thus, the State Attorney stepped in and filed a formal felony battery charge.

Worse yet, remember that the Adult Pre-Arrest Diversion Program requires that the individual must make an admission as to the offense and take responsibility without the ability to consult legal counsel.  How and if that admission will be used with the new felony battery charge is yet to be seen.

This is clearly a huge issue for the young woman, and highlights the deep issues that the Adult Pre-Arrest Diversion Program has.  It operates outside of the law, and it is based on “understandings” with no clear documentation or published rules on how to deal with situations like the real life issue documented above.  There is no doubt that more and more issues will surface with the Pinellas County Adult Pre-Arrest Diversion Program as time goes on.

Now consider this same scenario if the Adult Pre-Arrest Diversion Program did not exist.  The young woman would have been arrested on the battery charge.  She would have been booked into jail.  BUT, her attorney would have likely had an opportunity to intervene with the State Attorney and could have potentially negotiated to not have a formal charge (an “Information”) filed in the case, or alternatively have the client entered into a State Attorney approved diversion program and ultimately have the charge dismissed.
Now more than ever we believe it is in your best interest to consult with a 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.